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Kitt v. Capital Concerts Inc.

August 05, 1999


Before Farrell and Reid, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Reid, Associate Judge

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

Appeal from the Superior Court of the District of Columbia

(Hon. Michael L. Rankin, Trial Judge)

Argued March 22, 1999

Decided August 5, 1999

This case concerns a lawsuit brought by the principal clarinetist of the National Symphony Orchestra ("NSO"), appellant Loren Kitt, against the company responsible for producing and promoting the 1993 Fourth of July concert at the U.S. Capitol. The concert was shown on national television. Mr. Kitt took offense at the company's use of an actor to portray a clarinetist during the production. He subsequently filed a complaint against Pathmakers, Inc., the concert's production company; Jerry Colbert, the principal owner and operator of Pathmakers; and Walter Miller, the principal director of the performance, alleging: 1) Invasion of Privacy -- False Light; 2) Fraud; and 3) Intentional Infliction of Emotional Distress. The trial court dismissed the complaint for failure to state a claim upon which relief might be granted. See Super. Ct. Civ. R. 12 (b)(6). This court reversed that judgment in Kitt v. Pathmakers, Inc., 672 A.2d 76 (D.C. 1996), concluding that the trial court had erred in its consideration of factual matters outside of the complaint. *fn2 After remand and discovery, the trial court granted summary judgment for appellees, Pathmakers, Inc. and its principals. Capital Concerts, Inc. is Pathmakers' successor (hereinafter, we refer to Capital Concerts and its principals as "Capital Concerts"). On appeal, Mr. Kitt contends that the trial court erred in its decision because: 1) there are disputed issues of material fact; and 2) he established a prima facie case on all three counts. We affirm.


Capital Concerts had an agreement with NSO to promote and produce its July 4, 1993 concert. The contract granted Capital Concerts numerous rights, including "the exclusive right to record, edit, package, distribute and broadcast [the o]rchestra's performance," and the authority to use the names and likeness of its members. Mr. Kitt performs under a contract with NSO.

At a rehearsal for the concert, Capital Concerts offered Mr. Kitt the opportunity to appear in a thirty-five second camera shot ("a beauty shot") of a clarinetist playing, apart from the rest of the orchestra, on the balustrade of the Capitol during the opening of George Gershwin's "Rhapsody in Blue." Mr. Kitt, through management, rejected the offer, as well as a proposal that an actor pretend to "play" the clarinet for this camera shot. Despite assurances to the contrary and without NSO's knowledge, Capital Concerts filmed the shot with an actor during the concert. The actor, who was dressed in a top hat and a tuxedo, neither physically resembled Mr. Kitt nor played the clarinet visually in the way he did.

In its decision to grant Capital Concerts' motion for summary judgment, the trial court concluded that Mr. Kitt failed to satisfy the fourth element of a prima facie invasion of privacy -- false light claim because he could not demonstrate that "a reasonable person viewing the beauty shot would . . . find the scene offensive." The trial court determined that: (1) the actor looked like a normal person and was not engaged in obnoxious or offensive behavior; and (2) regardless of whether the actor was portraying an orchestra member or Mr. Kitt, which was unclear, a reasonable juror would not find that an ordinary viewer would be offended. With respect to the fraud count, the trial court stated that Mr. Kitt failed to show that "he relied on misrepresentations by the defendants to induce him into performing, because his contractual obligation with NSO required him to perform." Furthermore, the court stated that Mr. Kitt had not "assert[ed] any provable damages[, because] the concert, his earnings, performances, and private teachings have increased." Finally, the trial court determined that Mr. Kitt's claims of "irritation, embarrassment, sleeplessness, and angst" arising from the alleged impersonation of him, were insufficient to qualify as intentional infliction of emotional distress in light of our strict interpretation of what constitutes outrageous conduct.


Standard of Review

We review the grant or denial of a summary judgment motion de novo. See Walton v. District of Columbia, 670 A.2d 1346, 1353 (D.C. 1996). Summary judgment is appropriate only if no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. See Colbert v. Georgetown Univ., 641 A.2d 469, 472 (D.C. 1994) (en banc). It is "'properly granted if (1) taking all reasonable inferences in the light most favorable to the nonmoving party, (2) a reasonable juror, acting reasonably, could not find for the nonmoving party, (3) under the appropriate burden of proof.'" Kendrick v. Fox Television, 659 A.2d 814, 818 (D.C. 1995) (quoting Nader v. de Toledano, 408 A.2d 31, 42 (D.C. 1979), cert. denied, 444 U.S. 1078 (1980)). "The moving party has the burden of 'demonstrating the absence of material disputed issues and the right to judgment as a matter of law.'" Id. (quoting Galloway v. Safeway Stores, Inc., 632 A.2d 736, 738 (D.C. 1993) (citation omitted)). "Once the movant has made such a prima facie showing, the nonmoving party has the burden of producing evidence that shows there is 'sufficient evidence supporting the claimed factual dispute . . . to require a jury or Judge ...

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