Ohio Common Law

  1. Invasion of Privacy

    1. Introduction

      Ohio recognizes four separate invasion of privacy torts: (1) the unwarranted appropriation/exploitation of one’s personality; (2) the publicizing of one’s private affairs with which the public has no legitimate concern; (3) the wrongful intrusion into one’s private activities; and (4) false light invasion of privacy. The Ohio Supreme Court adopted the fourth invasion of privacy theory—the “false light” theory—in 2007, joining the majority of other jurisdictions.1 False light theory makes it a tort to give “publicity to a matter concerning another that places the other before the public in a false light … if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”2

    2. Elements of a Claim

      To state a cause of action for Publication of Private Facts, a plaintiff must allege: (1) Publicity—communication to the public at large; (2) The facts disclosed really are private, and were not left open to the public eye; (3) The facts disclosed would be highly offensive to a reasonable person; (4) The disclosure was intentional; and (5) The facts publicized are not of a legitimate public concern.3

      To state a cause of action for Intrusion on Seclusion, a plaintiff must allege: (1) Wrongful intrusion; (2) Into one’s private activities; (3) In a manner that would outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.4

      To state a cause of action for False Light, a plaintiff must allege: (1) Defendant gives publicity to a matter concerning another placing the other before the public in a false light; (2) Defendant had knowledge of or acted with reckless disregard about the falsity of the publicized matter and the false light in which the other would be placed.5

      To state a cause of action for Misappropriation, a plaintiff must allege: (1) Plaintiff’s name or likeness has an intrinsic value; (2) Defendant takes or uses that name or likeness for his own benefit, commercial or otherwise.

    3. Cases

      1. Seifer v. PHE, Inc., 196 F. Supp. 2d 622 (S.D. Ohio 2002)

        • Procedural Posture: Defendant distributor of sexually explicit videos, toys, and other items moved to dismiss claims by plaintiff sex education doctor that they were misappropriating her likeness to endorse their products without her consent.

        • Law: Invasion of privacy (misappropriation of name or likeness); fraud; breach of contract

        • Facts: Plaintiff, a doctor and instructor featured in sexual education videos, sued distributor who had entered into a contract with the producer of those videos, alleging invasion of privacy, fraud, and breach of contract. She alleged that she had not agreed to endorse defendants’ products (other than the video in which she was featured), and that she did not immediately bring suit because defendant repeatedly indicated that it would not use her name or likeness without her express approval. It did not, however, discontinue its use of her name or likeness at her request.

        • Outcome: The court denied defendant’s motion to dismiss plaintiff’s invasion of privacy claim, determining that the claim was not preempted by copyright law since plaintiff had complained about the use of her name and image to endorse defendants’ products outside the realm of the copyrighted work. The court also found that “the fact that an individual has appeared in a copyrighted work does not authorize a distributor to use any likeness of that individual to promote its works… [or] use an individuals’ name or likeness to create the false impression that the individual endorses a product or company.”6 The agreement did not indicate that plaintiff had intended to authorize a third party to use her name, image or prior experience. Thus, because defendant wrongfully used plaintiff’s name, likeness, and image to promote its videos, the court allowed plaintiff’s claim to proceed. The court dismissed plaintiff’s fraud claim because she failed to allege that she had relied upon defendants’ misrepresentations. Moreover, because the contract expressly stated that it was not intended to benefit third parties, the court dismissed plaintiff’s breach of contract claim.7

        • Special Notes: The court noted that, “the distributor is not given carte blanche with regard to the performer’s name and image.”8

      2. James v. Bob Ross Buick, Inc., 855 N.E.2d 119 (Ohio Ct. App. 2006)

        • Procedural Posture: Plaintiff appealed from lower court decision granting summary judgment against him on his claims of invasion of privacy (misappropriation), and reverse race discrimination.

        • Law: Invasion of privacy (misappropriation of name or likeness)

        • Facts: Plaintiff, an African American, was fired from his job at a car dealership. After he left the dealership, defendant dealership sent out letters to customers with plaintiff’s name on them without his knowledge or consent. When the plaintiff became of aware of the issue, plaintiff sued the dealership for damages. The court granted defendant summary judgment, holding that although forgery of another’s signature is a misappropriation, plaintiff failed to establish damages.

        • Outcome: On appeal, the court reversed, finding that the use of plaintiff’s signature was not simply “incidental use” of plaintiff’s name because the name had value in the context in which it was used—in letters to former customers/possible future customers.9 Also, the court found that a plaintiff establishing misappropriation need not establish damages, and may seek nominal damages as necessary.10

        • Special Notes: The court noted that “[t]he forgery of the signature of another is a recognized variant of the tort known generally as invasion of privacy… More specifically, forgery amounts to the appropriation of the name or likeness of another.”11

      3. [Name Redacted] v. Fairmount Presbyterian Church, 778 N.E.2d 1093 (Ohio Ct. App. 2002)

        • Procedural Posture: Appeal from grant of summary judgment to Church dismissing former employee’s action for wrongful termination, invasion of privacy, and intentional infliction of emotional distress

        • Law: Invasion of privacy; intentional infliction of emotional distress; breach of contract

        • Facts: Appellant, a former minister, suffered from bipolar disorder and depression, and he was terminated from his post while on an extended medical leave. The church also posted an article on its website stating that he was being treated for bipolar disorder and was improving. After some discussions with the church about whether or not they could accommodate the minister, the church chose not to rehire him, and he sued them. Among other things, appellant argued that the church had invaded his privacy by posting the information about his depression on its website without his consent. He also argued that the publication of the information caused him to suffer emotional distress.

        • Outcome: The court found that the trial court erred in granting the church summary judgment on the invasion of privacy claim because the publication of the personal information about his bipolar illness “could be viewed as offensive or objectionable to a reasonable person.”12 The court affirmed the trial court’s decision to grant summary judgment on the distress claim because the appellant failed to show that the church acted in an intentional manner, or in a manner where the church knew its actions would result in harm to the plaintiff.

        • Special Notes: The action was primarily one for retaliatory discharge and disability discrimination, but the appellant lumped in invasion of privacy, intentional infliction of emotional distress, and a couple of other common law claims.

      4. Le Crone v. Ohio Bell Tel. Co., 201 N.E.2d 533 (Ohio Ct. App. 1963)

        • Procedural Posture: Appeal from directed verdict for telephone company

        • Law: Invasion of privacy

        • Facts: Plaintiff, telephone company customer, and her husband were divorcing when she acquired a phone service from the phone company in her name only. Her husband allegedly had a jumper line placed from her new personal line to his residence, which the telephone company installed without notifying her. Her husband was then able to access her calls without her knowledge or consent.

        • Outcome: The court reversed and remanded, finding that the plaintiff’s estranged husband had committed an actionable invasion of privacy and that the telephone company had aided and abetted the invasion. The court noted that the most difficult question was whether the plaintiff had a right of privacy against her estranged husband. Because the parties were not living together, however, the court determined that the plaintiff “clearly has a right to solitude and privacy in her affairs, and to talk to her attorney and to her friends without interference as against her husband.”13

        • Special Notes: The phone company was charged with knowledge of facts communicated to an employee within his scope of authority with relation to the matter of service on the phone line (the wife lived apart from her husband, paid for her own line, and was also divorcing her husband); accordingly, their actions aiding husband were improper. Although the plaintiff could not produce physical evidence of the estranged husband’s eavesdropping, the court said it was enough that the means of access existed for a substantial period of time.

      5. Welling v. Weinfeld, 866 N.E.2d 1051 (Ohio 2007)

        • Procedural Posture: Granting review of issue of whether a plaintiff can assert a claim for false light invasion of privacy

        • Law: Invasion of privacy (false light)

        • Facts: After a rock was thrown through a window on a landowner’s premises, she believed her neighbors were responsible. Accordingly, she circulated flyers offering a reward at, among other places, the neighbors’ workplace and their children’s school despite the fact that she had no evidence showing that the neighbors were responsible.

        • Outcome: Holding that it was appropriate to recognize an invasion of privacy claim for placing a person in a false light. A cause of action for false light invasion of privacy protected an important individual right complementary to other privacy rights, and there were adequate protections guaranteeing the First Amendment rights of potential defendants. The differences between torts of defamation and false light invasion of privacy warranted their separate recognition. The viability of a false light privacy claim maintained the integrity of the right to privacy, complementing the other right-to-privacy torts. The right to privacy naturally extended to the ability to control false statements made about oneself. The statement made had to be untrue, the information had to be “publicized,” as distinguished from “published,” and the misrepresentation had to be serious enough to be highly offensive to a reasonable person.

        • Special Notes: The court recognized that despite similarities between false light invasion of privacy and defamation “the viability of a false-light privacy claim maintains the integrity of the right to privacy. . . In Ohio, we have already recognized that a claim for invasion of privacy can arise when true private details of a person’s life are publicized. The right to privacy naturally extends to the ability to control false statements about oneself. Without false light, the right to privacy is not whole, as it is not fully protected by defamation laws.”14

      6. Jackson v. Playboy Enters., Inc., 574 F. Supp. 10 (S.D. Ohio 1983)

        • Procedural Posture: A group of boys sued the defendant publisher for invasion of privacy. The publisher moved to dismiss for failure to state a claim on which relief could be granted.

        • Law: Invasion of privacy

        • Facts: The boys were photographed with a female police officer. The photograph was included in a Playboy article featuring primarily nude pictures of the officer. The photograph depicted the uniformed officer kneeling on a sidewalk in an apparent attempt to help the boys fix a bicycle. The boys alleged that the publication of the photograph destroyed their right of privacy and humiliated, disgraced, and exposed them to public contempt and ridicule. The boys sued the publisher for invasion of privacy. The publisher moved to dismiss.

        • Outcome: The court dismissed the claim and held that in order to state a cause of action for invasion of privacy, the boys had to establish that the publisher had unreasonably intruded upon their seclusion, that it had appropriated their names or likenesses, that it had unreasonably publicized their private lives, or that it had unreasonably placed the boys in a false light before the public. The court found that the boys had set forth no facts entitling them to relief under any theory of invasion of privacy.

        • Special Notes: There was no intrusion upon seclusion claim because the plaintiffs were photographed on a public city sidewalk. There was no misappropriation of plaintiffs’ names or likenesses because plaintiffs put forth no facts supporting their allegation that they were “exposed to public contempt and ridicule.”15 Plaintiffs also could not assert a claim of unreasonable publicity to their private lives since they were not engaged in a “purely private activity” and were actually photographed with the policewoman “in public.”16 Finally, they could not make out a claim of false light invasion of privacy because they alleged no facts, “which, if taken as true, would indicate that the photograph was in any way not a true representation of Plaintiffs, or that any false characteristics or conduct were attributed to Plaintiffs by Defendant… Plaintiffs have simply not alleged that the photograph taken with [the female officer later featured in Playboy] depicts them in a ‘false light.’”17

      7. Reeves v. Fox Television Network, 983 F. Supp. 703 (N.D. Ohio 1997)

        • Procedural Posture: On defendants’ motion for summary judgment on Cleveland-area arrestee’s various federal and state-law claims arising from the videotaping of his arrest and broadcast of that videotape on “COPS.”

        • Law: Invasion of privacy (publication of private facts; misappropriation of name or likeness; intrusion); intentional infliction of emotional distress; negligent infliction of emotional distress; trespass

        • Facts: Plaintiff brought suit following his arrest by the Cleveland police. He alleged that he was in the shower when the Cleveland police rang his doorbell and asked to enter to speak about an earlier altercation plaintiff had had with a third party. Plaintiff consented to the police’s entry and the entry of a camera crew, who were accompanying one of the policemen for a taping of “COPS.” Fox took no part in the compilation of the footage, which was later broadcast with footage of plaintiff’s arrest.

        • Outcome: The court granted summary judgment for defendants Fox and the officer, finding that no genuine issues of material fact were in dispute. As to plaintiff’s invasion of privacy claims, the court held there was no publication of private facts because there was no issue of a legitimate concern, and no private information revealed given that “the Cleveland Police Department’s response to a call regarding a violent crime” is a matter of “legitimate public concern.”18 The court rejected plaintiff’s misappropriation claim because “[p]laintiff’s name and likeness has no intrinsic value,” and he was only included in “COPS” because the film crew was following a Cleveland police officer, and plaintiff “happened to be involved in a crime which was investigated by the police officer they were following.”19 The court rejected the intentional infliction of emotional distress claim because plaintiff submitted no evidence to show that he had suffered any “serious emotional distress,” and because there was no evidence that the videotaping of plaintiff’s arrest was “outrageous and extreme conduct, beyond all possible bounds of decency.”20 Finally, there was no trespass or intrusion because plaintiff had voluntarily allowed the police and camera crew into his home, and was not doing so under duress.21

        • Special Notes: At the time of this decision, Ohio had not yet adopted a false light invasion of privacy claim, so that claim was dismissed as a matter of law.22

    4. Practice Pointers

      • “As a general proposition, eavesdropping on phone conversations of another by unauthorized mechanized means, or a so-called ‘tap,’ is the kind of act or conduct that fits the definition of an intrusion or prying into another’s private affair.”23

        Ohio did not recognize a claim of false light invasion of privacy and instead, looked to defamation as the appropriate action in such circumstances until 2007, at which point, the Ohio Supreme Court recognized the tort for the first time.24

    1. Welling v. Weinfeld, 866 N.E.2d 1051, 1059 (Ohio 2007). 

    2. Id. at 1051. 

    3. Seta v. Reading Rock, Inc., 654 N.E.2d 1061, 1067 (Ohio Ct. App. 1995). 

    4. Rowe v. Guardian Auto. Prods., No. 3:04-cv-07145, 2005 U.S. Dist. LEXIS 31296, at *10-11 (N.D. Ohio Dec. 6, 2005). 

    5. Welling, 866 N.E.2d at 1059. 

    6. Seifer v. PHE, Inc., 196 F. Supp. 2d 622, 629 (S.D. Ohio 2002). 

    7. Id. at 633-34. 

    8. Id. at 629. 

    9. James v. Bob Ross Buick, Inc., 855 N.E.2d 119, 123 (Ohio Ct. App. 2006). 

    10. Id. at 124 (holding that plaintiff “may seek nominal, compensatory, and, if appropriate, punitive damages at trial”). 

    11. Id. at 122. 

    12. Mitnaul v. Fairmount Presbyterian Church, 778 N.E.2d 1093, 1102 (Ohio Ct. App. 2002). 

    13. Le Crone v. Ohio Bell Tel. Co., 201 N.E.2d 533, 539 (Ohio Ct. App. 1963). 

    14. Welling, 866 N.E.2d at 1057. 

    15. Jackson v. Playboy Enters., Inc., 574 F. Supp. 10, 13 (S.D. Ohio 1983). 

    16. Id. 

    17. Id. at 14. 

    18. Reeves v. Fox Television Network, 983 F. Supp. 703, 709 (N.D. Ohio 1997). 

    19. Id. at 710. 

    20. Id. at 711. 

    21. Id. at 713-14. 

    22. Id. at 709-10. 

    23. Le Crone, 201 N.E.2d at 538. 

    24. See Welling, 866 N.E.2d at 1057. 

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  2. Defamation

    1. Introduction

      Ohio courts apply a totality-of-the-circumstances test to distinguish statements of fact from opinion.1 Under this test, the difference between an opinion and a fact often comes down to a case-by-case analysis of the publication’s context.

    2. Elements of a Claim

      To state a cause of action for defamation, a plaintiff must allege: (1) Defendant made a false statement; (2) The statement was defamatory; (3) The statement was published; (4) The plaintiff was injured as a result of the statement; and (5) The defendant acted with the required degree of fault.2

    3. Cases

      1. Roe v. Heap, No. 03AP-586, 2004 Ohio App. LEXIS 2093 (Ohio Ct. App. May 11, 2004)

        • Procedural Posture: On appeal from lower court ruling for summary judgment in favor of appellee mothers.

        • Law: Defamation; invasion of privacy; intentional infliction of emotional distress

        • Facts: The daughters of a group of women were members of a diving club, which was part of a national organization. Plaintiff was the father of a boy who was also a member of the club. After an alleged sexual assault occurred, a magistrate recommended the minor accused of the assault be adjudicated delinquent for assault and gross sexual imposition. The mothers emailed the national organization and others complaining of the boy’s actions. The mothers’ emails stated (among other things) that the accused minor had been “convicted” of sexual crimes, and “should not be allowed” to participate in the diving meets. The boy’s father sued the group of mothers for defamation, invasion of privacy, intentional infliction of emotional distress, and negligent infliction of emotional distress. The petition against the boy was dismissed, and the court ordered his records expunged.

        • Outcome: The appellate court determined, among other things, that the trial court improperly found for the first mother on the father’s claim for defamation based on the “innocent construction rule.” The mothers’ statements that Roe was a “convicted sexual offender” and “convicted of sexual crimes” were considered defamatory per se. The court also held that the trial court did not abuse its discretion in finding the father could not show a public disclosure occurred, so his publicity tort claim failed, and the lower court properly granted summary judgment to the second mother on the father’s wrongful intrusion claim. The court declined to recognize the tort of false light of invasion of privacy, and held that the mothers’ conduct did not support a claim of intentional infliction of emotional distress.

        • Special Notes: In order to recover for a “publicity” tort of invasion of privacy, there must be a public disclosure. Because the emails in question were sent to only a small number of people, there was no public disclosure. The court found that publicity must mean that the matter is “communication that reaches, or is sure to reach, the public.”3

    4. Practice Pointers

      • A defamation claim includes “libel and slander,” and involves a “false publication causing injury to a person’s reputation, exposing the person to public hatred, contempt, ridicule, shame or disgrace, or affecting the person adversely in his or her trade or business.”4

      • The Ohio Supreme Court initially refused to recognize a claim for false light invasion of privacy: “The subjective and amorphous nature of the false light tort presents an unnecessary risk of chilling non-defamatory, constitutionally protected free speech. The risk is unnecessary because false publicity is, in our view, adequately redressed through the law of defamation, and the harm caused by ‘highly offensive’ (or outrageous) behavior is appropriately remedied through the tort of intentional infliction of emotional distress.”5 However, in 2007,6 the Court recognized a claim of false-light invasion of privacy where: (1) a statement is untrue; (2) the information is “publicized” (which means only that the matter is communicated to the public at large); and (3) the misrepresentation must be serious enough to be highly offensive to a reasonable person.7

      • Publicity for an invasion of privacy claim is more narrowly defined. In contrast, the publication requirement for defamation only requires a communication to a third party. For a privacy claim, “publicity” means that the “matter is made public by communicating it to the public at large or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.”8

    1. Scott v. News-Herald, 496 N.E.2d 699, 706 (Ohio 1986).  

    2. Roe v. Heap, No. 03AP-586, 2004 Ohio App. LEXIS 2093, at *16 (Ohio Ct. App. May 11, 2004). 

    3. Id. at *34. 

    4. Id.at *14 (citing Sweitzer v. Outlet Commc’ns, Inc., 726 N.E.2d 1084, 1087 (Ohio Ct. App. 1999)). 

    5. Id. at 77. 

    6. Welling, 866 N.E.2d at 1051. 

    7. Id. 

    8. Byrne v. Univ. Hosps., 2011-Ohio-4110, ¶32 (Ohio Ct. App. 2011). 

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  3. Trespass

    1. Introduction

      Trespass is an unlawful interference or invasion to another’s exclusive right to possession of property. There must be an affirmative act causing intrusion to constitute an act of trespass. Mere presence on the property without an act will not be subject to tort liability. A trespass need not be done for the specific purpose of causing a trespass, and it becomes intentional when the acts leading to the invasion were done with knowledge that a trespass would result. Such a claim is unlikely to be relevant to a WMC plaintiff.

    2. Elements of a Claim

      To state a cause of action for trespass, a plaintiff must allege: (1) An unlawful intrusion or invasion upon a property; (2) Intent of intrusion; (3) Force; and (4) Consequent injury to an owner.1

    3. Cases

      Research is ongoing.

    1. Brown v. County Comm’rs of Scioto County, 622 N.E.2d 1153, 1161 (Ohio Ct. App. 1993). 

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  4. Trespass to Chattels

    1. Introduction

      A person commits a trespass to chattels by intentionally interfering with another person’s lawful possession of chattel (movable personal property). The interference can be physical contact in any quantifiable way, or any dispossession of the chattel (taking it, destroying it, or barring owner access) as opposed to the great wrong of conversion trespass to chattels is argued to be actionable per se.1

    2. Elements of a Claim

      To state a cause of action for trespass to chattels, a plaintiff must allege: (1) Dispossession of chattel from another; or (2) Impairment of the condition, quality or value of another’s chattel; or (3) Depriving another of the use of his chattel for a substantial time; (4) Causing bodily harm to the possessor of chattel, or causing harm to a person or thing in which the possessor has a legally protected interest.2

    3. Cases

      Research is ongoing.

    1. CompuServe, Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015, 1023 (S.D. Ohio 1992) (granting plaintiff’s motion for preliminary injunction because defendant’s unsolicited email advertisements on behalf of the defendant company and its clients to hundreds of thousands of Internet users, many of whom were Compuserve subscribers, amounted to an actionable trespass to chattels). 

    2. See id. at 1022 (citing Restatement (Second) of Torts § 218). 

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  5. Conversion

    1. Introduction

      Conversion is the wrongful exercise of dominion over property in exclusion of the owner’s right, or the withholding of property from the owner’s possession under a claim inconsistent with the owner’s rights. A WMC victim could sue to recover property or damages. For instance, if an individual publishes an online photograph of the victim without her consent, she could try to sue him for conversion to reclaim the goods and/or obtain other equitable relief.

    2. Elements of a Claim

      An exercise of dominion over property by the defendant in exclusion of the rights of the owner, or withholding it from his possession under a claim inconsistent with his rights. A conversion can be a “wrongful taking,” “an assumption of ownership,” “an illegal use or misuse,” or “a wrongful detention of chattels.”1

    3. Cases

      Research is ongoing.

    1. Miller v. Uhl, 174 N.E. 591, 592 (Ohio Ct. App. 1929). 

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  6. Breach of Contract/Promissory Estoppel

    1. Introduction

      The victim of the nonconsensual online publication of intimate photographs or videos may sue for breach of contract where the victim agreed to pose under certain conditions and that agreement was breached.

    2. Elements of a Claim

      To state a cause of action for breach of contract, a plaintiff must allege: (1) A clear and unambiguous promise or contract; (2) Reliance on the promise; (3) Reliance is reasonable and foreseeable; (4) Injury caused by reliance.1

    3. Cases

      Research is ongoing.

    1. Pappas v. Ippolito, 895 N.E.2d 610, 622 (Ohio Ct. App. 2008). 

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  7. Intentional Infliction of Emotional Distress (“IIED”)

    1. Introduction

      The victim of the nonconsensual online publication of intimate photographs or videos may sue under the common law tort of intentional infliction of emotional distress or outrage in situations where the material’s publication caused the victim to suffer severe emotional distress.

    2. Elements of a Claim

      To state a cause of action for intentional infliction of emotional distress (“iied”), a plaintiff must allege: (1) Serious emotional distress—severe and debilitating; (2) Defendant’s conduct was intentional.1

    3. Cases

      1. Yeager v. Local Union 20, Teamsters, 453 N.E.2d 666 (Ohio 1983)

        • Procedural Posture: Appeal to the Ohio Supreme Court regarding whether Ohio will recognize a claim of intentional infliction of emotional distress.

        • Law: Intentional infliction of emotional distress

        • Facts: Plaintiff-appellant was a vice president and general manager of a Toledo, Ohio company and he had responsibility for oversight and supervision of employees and operations. A Teamsters union was the exclusive collective bargaining representative for certain employees. Plaintiff alleged that a group from the Teamsters threatened him, and made menacing remarks about him and his family, and that as a result, he experienced physical problems—stomach pain from an aggravated ulcer and a week-long hospital stay. Also, picketers distributed handbills describing him as “Little Hitler,” and accusing him of operating a “Nazi concentration camp” at the Toledo company. Although the lower court initially held that Ohio recognized no intentional infliction of emotional distress claim absent a contemporaneous physical injury, the court certified the issue for its review.

        • Outcome: Holding that Ohio recognizes a claim for intentional infliction of emotional distress where the emotional distress is sufficiently “serious”

        • Special Notes: The emotional distress must be sufficiently “serious” to amount to actionable conduct.

    4. Practice Pointers

      Notably, Ohio was the last jurisdiction in the country that to recognize the independent tort of intentional emotional distress.

    1. Yeager v. Local Union 20, Teamsters, 453 N.E.2d 666, 671 (Ohio 1983) (“The standard we adopt in our recognition of the tort of intentional infliction of serious emotional distress is succinctly spelled out in the Restatement as follows: ‘One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.” (citing Restatement of Law 2d, Torts (1965) 71 § 46(1))). 

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  8. Negligent Infliction of Emotional Distress (“NIED”)

    1. Introduction

      The victim of a nonconsensual online publication of intimate photographs or videos may sue under the common law tort of negligent infliction of emotional distress in situations where the material’s publication caused the victim to suffer severe emotional distress.

    2. Elements of a Claim

      To state a cause of action for negligent infliction of emotional distress (“nied”), a plaintiff must allege: (1) Serious emotional distress—it must be “severe” and “debilitating”; and (2) Defendant’s tortious conduct was not intentional.

    3. Cases

      1. Paugh v. Hanks, 451 N.E.2d 759 (Ohio 1983)

        • Procedural Posture: Appeal to the Ohio Supreme Court regarding whether Ohio will observe a claim for negligent infliction of emotional distress.

        • Law: Negligent infliction of emotional distress

        • Facts: Plaintiff and her family lived directly across from an exit ramp on the highway, and over the course of 6 months, 3 separate cars drove into their property—crashing into both the family’s fence, and the family’s home. Plaintiff began suffering anxiety, and nightmares, and became afraid to be at home, or in her car. She was diagnosed with emotional distress, including anxiety neurosis with depressive features. The lower courts had granted summary judgment to the drivers because the old rule was that the plaintiff had to exhibit both an emotional and a physical injury in order to recover.

        • Outcome: The Ohio Supreme Court reversed and remanded, holding that a plaintiff may state a cause of action for negligent infliction of serious emotional distress without the manifestation of a resulting physical injury. Proof of a resulting physical injury is admissible as evidence of the degree of emotional distress suffered. In such instances, the emotional distress must be “serious,” and “reasonably foreseeable,” based on several factors, e.g., proximity to the scene, contemporaneous observance vs. learning from others, and the closeness of the relationship between the plaintiff and the victim.

        • Special Notes: The court discussed the conflicting rules and held that “freedom from negligent infliction of serious emotional distress” itself was entitled to independent legal protection.

    4. Practice Pointers

      • “The cases recognizing the tort of negligent infliction of emotional distress generally involve a bystander to an accident rather than the person who claims to be a victim of an intentional tort.”1

      • The factors to consider to determine whether a negligently inflicted emotional injury was reasonably foreseeable include: (1) whether the plaintiff was located near the scene of the accident, as contrasted with one who was a distance away; (2) whether the shock resulted from a direct emotional impact upon the plaintiff from sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and (3) whether the plaintiff and victim (if any) were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

    1. See Reeves, 983 F. Supp. at 711. 

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  9. Prima Facie Tort

    1. Introduction

      The victim of a nonconsensual online publication of intimate photographs or videos may sue under the common law claim of prima facie tort in situations where the material’s publication caused the victim to suffer severe emotional distress.

    2. Elements of a Claim

      The intentional infliction of injury upon another without excuse or justification by an act which in and of itself may not be unlawful.1

    3. Cases

      Research is ongoing.

    1. Sulphur Springs Realty v. Blackstone, 453 N.E.2d 1279, 1284 (Ohio Ct. App. 1982). 

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  10. Negligence

    1. Introduction

      The victim of a nonconsensual online publication of intimate photographs or videos may sue under the common law claim of negligence in situations where the material’s publication breached a duty owed to the plaintiff.

    2. Elements of a Claim

      To state a cause of action for negligence, a plaintiff must allege: (1) Existence of a duty; (2) Breach; (3) Injury; (4) Proximate cause.1

    3. Cases

      1. Brown v. Helzberg Diamonds, 860 N.E.2d 803 (Ohio Ct. App. 2006)

        • Procedural Posture: On appeal from lower court decision granting summary judgment to defendant jewelry store on plaintiff’s negligence claim.

        • Law:  Negligence

        • Facts:  Plaintiff jewelry store customer who made a legitimate purchase from defendant store on the same day that other individuals made a fraudulent purchase with stolen credit cards, sued the store for negligence after the police broadcast the plaintiff’s image from the store’s surveillance video, and he was identified and arrested as a criminal suspect.  The video had time-lapse issues and incorrectly/inaccurately depicted plaintiff during the time period laid out by the store clerk.  

        • Outcome: Affirming summary judgment for defendant jewelry store because plaintiffs could not show that the jewelry store should have foreseen that the police would have botched the investigation, and no one from the jewelry store had cued up the tape.  Also, the court noted that “[t]o impose liability on a private citizen for a wrongful arrest, the arrest by the officer must be so induced or instigated by the defendant that the arrest is made by the officer not of his own volition, but to carry out to the request of the defendant. . . No liability is incurred if a person merely gives information to an officer tending to show a crime has been committed.  The same applies if the action is one for false imprisonment.”2

    1. Fed. Steel & Wire Corp. v. Ruhlin Constr. Co., 543 N.E.2d 769, 772 (Ohio 1989). 

    2. Brown v. Helzberg Diamonds, 860 N.E.2d 803, 807 (Ohio Ct. App. 2006). 

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  11. Conspiracy

    1. Introduction

      If a sexual photo or video is published online, several people may have been involved. Moreover, although one person does the actual posting of an image, several other individuals may be making comments or taking actions that intensify the situation. For instance, although one person posts an image, another co-conspirator may add sound. In such cases, a plaintiff could try to make out a claim of conspiracy along with its other allegations.

    2. Elements of a Claim

      To state a cause of action for conspiracy, a plaintiff must allege: (1) A malicious combination; (2) Of two or more persons; (3) Injury to person or property; and (4) Existence of an unlawful act independent from the actual conspiracy.1

    3. Cases

      Research is ongoing.

    1. Kenty v. Transam. Premium Ins. Co., 650 N.E.2d 863, 866-67 (Ohio 1995). 

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