Empire State Building management has filed a $1.1 million lawsuit against photographer Allen Henson for taking pictures of a topless woman at the skyscraper’s packed 86th floor observatory in August.
Here’s one of the photos, which I imagine originally didn’t contain the black rectangle; the Daily News story has more.
The owners’ theory is that the photographer (Allen Henson) is guilty of tortious trespass, for which the owners seek $100,000 compensatory damages and $1 million punitive damages. But while I sympathize with their disapproval of the photographer’s behavior — to quote the complaint, “[i]n order to continue to attract visitors, including families, to the Building and the Observatory, … ESB has to maintain both the image and the fact that the Building and the Observatory are … [an] appropriate place for families and tourists” — I just don’t see how their theory is sound.
It’s true that a property owner can allow people onto its property only on the condition that they behave in a particular way, and exceeding this consent might constitute tortious trespass. To quote the Restatement (Second) of Torts § 168, “A conditional or restricted consent to enter land creates a privilege to do so only in so far as the condition or restriction is complied with.” But, according to the Complaint itself, no such condition was clearly expressed to visitors. The Complaint says,
The admission ticket for the Observatory states, in pertinent part, that ESB “may refuse admission or expel any person whose conduct is objectionable.”
But that, on its face, simply reserves ESB’s right to kick people out, or not let them in. It doesn’t purport to legally limit the scope of visitors’ conduct, especially since the word “objectionable” is so vague that […]