People For The Ethical Treatment Of Animals, v. Berosini, Ltd.

895 P.2d 1269 (1995)

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Nature of the Case

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Facts

P claims PETA and PAWS defamed him and invaded his privacy. Ottavio Gesmundo (D) was a dancer in the Stardust Hotel's 'Lido' floor show, at which P's animal act was the principal attraction. Gesmundo (D) claims that he was prompted to videotape P's treatment of the animals because he had become aware of P's conduct with the animals and thought that he would be in a better position to put an end to it if Berosini's actions were permanently recorded on tape. Gesmundo says that he had, on a number of occasions, heard the animals crying out in distress and that he had overheard 'thumping noises' coming from the area backstage where the videotaping was eventually done. The area in question was demarked by curtains which kept backstage personnel from entering the staging area where Berosini made last-minute preparations before going on stage. Gesmundo (D) placed his video camera in a place that would permit P's actions to be recorded without P's being aware of it. Gesmundo (D) would go home each night and transfer that day's video recording onto a VHS tape. In doing this, he would edit out the 'dead-time.' The final tape which Gesmundo (D) put together showed nine separate incidents, with the date superimposed on the daily taped images. The videotape accurately portrays what P was doing to these animals on at least nine different occasions. That film was published with comments by Ds. P sued. Judgment was entered by the trial court on jury verdicts on the libel and invasion of privacy claims in the aggregate amount of $ 4.2 million. Ds appealed.