Archive | Contracts

Empire State Building Owners Sue Photographer for Taking Topless Photograph on the 86th Floor Observatory

See the complaint, and a New York Daily News story:

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 [...]

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Contracts 101 and “Ethicist” Chuck Klosterman

The New York Times’s Ethicist column is infamously awful, but I had generally found that the new columns by Chuck Klosterman were not as bad as they’d been before. Nonetheless, today’s paper featured a howler.

Here’s the question:

I’m on the art-museum board, so that is my preferred artistic donee. An acquaintance repeatedly called me for a donation to the opera. I don’t like opera. I said he should donate to the art museum. He said he’d give to the museum whatever I gave to the opera. We agreed on $10,000 apiece. He called the next four years and offered to make the same deal. I accepted each year. As I was looking through our donor list for unrelated reasons, I discovered he has been giving only $1,000 a year. I sent him an e-mail telling him of my discovery, and he responded, “Nailed me.” As if it were funny. What is my ethical response? Demand my excess back from the opera? Threaten to sue him if he doesn’t pony up to the museum? Gossip?

Klosterman responds, in part:

As for pursuing legal action: I don’t even know how that would work. There was no contract signed. It’s not illegal to persuade someone to donate money to an opera house (it would be different if your acquaintance were operating on behalf of the opera’s board, or if the opera facility didn’t actually exist — but that’s not how you described the transaction).

Klosterman’s answer demonstrates a frequent misconception about contract law, namely that most contracts need to be “signed” to be legally enforceable. That is not the case. For the most part, oral agreements are just as binding as written ones. To be sure, there is a small set of contracts that are generally governed by the “statute [...]

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