61 A.D.2d 491 | N.Y. App. Div. | 1978
Lead Opinion
Defendant Columbia Broadcasting System in its capacity as owner and operator of Television Channel 2 in New York, on July 6, 1972, directed defendant Lucille Rich, its employee, and a camera crew to visit a number of restaurants which had been cited for health code violations by the Health Services Administration of New York City. Plaintiff restaurant was on the list. The camera crew and Ms. Rich entered the restaurant at approximately 2:00 p.m. with the camera working ("rolling”), which necessitated the utilization of bright lights for filming purposes. After entering the premises in this fashion, Ms. Rich and the camera crew were commanded to leave by plaintiff’s president. It appears that these CBS employees were on the premises for a period of time during which the camera continued to roll. Plaintiff, insofar as its action for trespass is concerned, was awarded compensatory and punitive damages by a jury. The trial court on defendant CBS’s motion upheld the jury verdict in finding that the conduct of this defendant constituted a trespass, but set aside the damage awards.
Initially, we are confronted with defendant CBS’s claim that despite the tort committed, defendant is insulated from
Scrutiny of the record demonstrates an adequate basis to justify the compensatory damage award rendered by the jury and, accordingly, such award must stand. Regarding punitive damages, it is well recognized that such damages "are penal in their nature and are different, both in nature and purpose, from compensatory damages. Such damages are allowed in addition to compensatory damages, and are awarded upon public consideration as a punishment of the defendant for the wrong in the particular case, and for protection of the public against similar acts, to deter the defendant from a repetition of the wrongful act, and to serve as a warning to others” (14 NY Jur, Damages, § 176). "As a general rule, exemplary damages are recoverable in all actions ex delicto based upon tortious acts which involve ingredients of malice, fraud, oppression, insult, wanton or reckless disregard of the plaintiff’s rights, or other circumstances of aggravation, as a punishment of the defendant and admonition to others * * * Punitive damages have been allowed in actions for
The trial court in setting aside the jury award of punitive damages, did so because of its exclusion of certain testimony by defense witness Dessartz relevant to defendant CBS’s motive and purpose in entering the plaintiff’s premises unannounced "with cameras rolling.” The court noted: "As punitive damage involves malice, evidence of motivation and purpose are admissible, at least in mitigation of damages.” As recovery of punitive damages depends upon the defendant acting with evil or wrongful motive or with a willful and intentional misdoing, or with a" reckless indifference equivalent thereto, "[a]ll * * * cirucmstances immediately connected with the transaction tending to exhibit or explain the motive of the defendant are admissible” (14 NY Jur, supra, § 189).
Accordingly, the order of the Supreme Court, New York County (Stecher, J.), entered January 19, 1977 which vacated the jury’s award of $1,200 in compensatory damages and $250,000 in punitive damages and directed a new trial on the issue of damages, should be modified, on the law, to the extent of reinstating the jury’s award of compensatory damages, severing the claim to punitive damages and remanding the matter for a trial on the issue of punitive damages, and as so modified, should be affirmed, without costs and without disbursements.
. The trial court pertinently observed: "The instructions given to the crew, whether specific to this event or as standing operating procedure, were to avoid seeking an appointment or permission to enter any of the premises where a story was sought, but to enter unannounced catching the occupants by surprise; 'with cameras rolling’ in the words of CBS’ principal witness, Rich. From the evidence the jury was entitled to conclude that following this procedure the defendant’s employees burst into plaintiffs restaurant in noisy and obstrusive fashion and following the loud commands of the reporter, Rich, to photograph the patrons dining, turned their lights and camera upon the dining room. Consternation, the jury was informed, followed. Patrons waiting to be seated left the restaurant. Others who had finished eating, left without waiting for their checks. Still others hid their faces behind napkins or table cloths or hid themselves beneath tables. (The reluctance of the plaintiffs clientele to be video taped was never explained, and need not be. Patronizing a restaurant does not carry with it an obligation to appear on television). [The] president of the plaintiff and manager of its operations, refused to be interviewed, and as the camera continued to 'roll’ he pushed the protesting Miss Rich and her crew from the premises. All told, the CBS personnel were in the restaurant not more than ten minutes, perhaps as little as one minute, depending on the testimony the jury chose to credit. The jury by its verdict clearly found the defendant guilty of trespass and from the admissions of CBS’ own employees they were guilty of trespass. The witness, Rich sought to justify her crew’s entry into the restaurant by calling it, on a number of occasions, a 'place of public accommodation’, but, as she acknowledges, they did not seek to avail themselves of the plaintiffs 'accommodation’; they had no intention of purchasing food or drink.”
. In Voltz v Blackmar (64 NY 440, 445) the Court of Appeals declared: "Where exemplary or punitive damages are claimed, all the circumstances immediately connected with the transaction, tending to exhibit or explain the motive of the defendant, are admissible in evidence.”
Dissenting Opinion
While I agree with the majority that defendant CBS committed a trespass and is accountable in compensatory damages therefor, I would not award punitive damages on the particular facts in this case. It is clear from the record that, in dispatching reporters to
Lane, Markewich and Sandler, JJ., concur with Lupiano, J.; Murphy, P. J., dissents in part in an opinion.
Order, Supreme Court, New York County, entered on January 19, 1977, modified, on the law, to the extent of reinstating the jury’s award of compensatory damages, severing the claim to punitive damages and remanding the matter for a trial on the issue of punitive damages and, as so modified, affirmed, without costs and without disbursements.