Alexander v. Culp

• Decision Date: 15 September 1997
• Docket Number: No. 71186,71186
• Citation: 705 N.E.2d 378,124 Ohio App.3d 13
• Parties: ALEXANDER, Appellant, v. CULP et al., Appellees.
• Court: Ohio Court of Appeals

Page 13

124 Ohio App.3d 13

705 N.E.2d 378

ALEXANDER, Appellant, v. CULP et al., Appellees.

No. 71186.

Court of Appeals of Ohio Eighth District, Cuyahoga County.

Decided Sept. 15, 1997.

Edward W. Cochran, Shaker Heights, for appellant.

Stanley Keller, Cleveland, for appellees.

DYKE, Judge.

Appellant, Neil Alexander, appeals the decision of the trial court granting a directed verdict after his opening statement. For the following reasons, we reverse and remand.

Appellant's complaint stated that he met with appellee, Reverend Harriet Culp, for marital counseling. Culp was a minister at appellee Fellowship United Church of Christ. Upon inquiry by appellant, Culp assured him that his disclosures would be kept confidential. Appellant told Culp that he had several affairs during his marriage. He was currently having an affair with a woman in Boston.

On November 29, 1994, Culp met with appellant's wife, Lynn Alexander, for lunch. The complaint alleged that at this lunch, Culp told Lynn that appellant was having an affair. Culp also said that appellant was a liar and not to be trusted. Culp advised Lynn to obtain a restraining order, change the locks on the house, and divorce appellant. Culp also stated that appellant was thinking of kidnaping the children and leaving the state with them. Culp advised Lynn to keep the children away from appellant. The complaint alleged that these statements were made intentionally and with malice and intent to harm.

That afternoon, Lynn filed a divorce action, changed the locks on the house, closed joint accounts, and obtained a restraining order against appellant.

Appellant filed suit against appellees for (1) statutory negligence and (2) invasion of privacy. Appellant alleged that appellee Fellowship United Church of Christ was liable by respondeat superior. The complaint prayed for compensatory and punitive damages but did not set forth an amount of damages.

Culp denied that she had made the alleged disclosures. Culp also asserted that Lynn already knew about the affair, and many other people knew about the affair.

During opening statement, appellant elaborated on the allegations of the complaint and alleged the following damages: (1) loss of household services, (2) loss of house rental services, (3) loss of an annual gift of $20,000 from Lynn's parents, (4) loss of his interest in a $1 million life insurance policy on the life of Lynn's father, (5) loss of consortium of his wife and children. The appellant's trial brief, filed months before trial, also sets forth these damages. Attached to appellant's trial brief is the report of an expert witness/economist setting forth specific amounts of damages.

Appellant added during opening statement that Culp also disclosed the affair to a group of Lynn's relatives that had gathered at the Alexander home the evening of November 29, 1994.

The trial court's judgment entry states that appellees' motion for directed verdict is granted because (1) appellant failed to state a cause of action for invasion of privacy, (2) appellant failed to state a cause of action for punitive damages, (3) appellant failed to state a cause of action for any breach of confidentiality, and (4) appellant never moved to amend the complaint to allege a figure for monetary damages. Originally, this journal entry said that the evidence was construed in favor of appellees, but a nunc pro tunc journal entry stated that the evidence was construed in favor of appellant.

I

Appellant's first assignment of error states:

"In dismissing count one of the complaint, the court erred by ruling that a breach of confidentiality by a lawyer/doctor/minister in violation of Ohio Revised Code 2317.02, as alleged in this case, is not 'statutory negligence.' "

A court should exercise great caution in sustaining a motion for a directed verdict made following an opening statement. Job v. Cleveland Dance Ctr. (1989), 62 Ohio App.3d 678, 684, 577 N.E.2d 396, 400-401. A directed verdict is proper after opening statements if, construing the statement in favor of the party against whom the motion is made, it is clear that all the facts expected to be proved, and those which have been stated, do not constitute a cause of action or defense. Id.; Brinkmoeller v. Wilson (1975), 41 Ohio St.2d 223, 70 O.O.2d 424, 325 N.E.2d 233; see Civ.R. 50(A)(4). The court must consider the facts alleged in the opening statement and the complaint. Mitchell v. Cleveland Elec. Illum. Co. (1987), 30 Ohio St.3d 92, 30 OBR 295, 507 N.E.2d 352; Sapp v. Stoney Ridge Truck Tire (1993), 86 Ohio App.3d 85, 93, 619 N.E.2d 1172, 1177.

In this case, the court's journal entry states that the opening statements of both parties were considered. The transcript indicates that only appellant made an opening statement. We note that it would be improper for the court to grant a directed verdict based on the appellees' version of the facts. For example, the trial court could not find that Culp did not make the alleged statements to appellant's wife or that everyone knew of the affair. The evidence must be construed in a light most favorable to the appellant.

The court specifically found that the facts did not support a cause of action for negligence. We agree that there is no statutory negligence action for breach of confidentiality by a minister. The appellant has stated a viable claim for common-law negligence.

Statutory negligence, or negligence per se, exists when (1) a legislative enactment imposes upon a person a specific duty to do or refrain from doing a specific act and (2) the legislature intended the statute for the protection of the plaintiff and others similarly situated. Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367, 53 O.O. 274, 119 N.E.2d 440; Hite v. Brown (1995), 100 Ohio App.3d 606, 654 N.E.2d 452; Hernandez v. Martin Chevrolet, Inc. (1995), 72 Ohio St.3d 302, 649 N.E.2d 1215. Appellant asserts that appellees were negligent per se by violating R.C. 2317.02, Ohio's privilege statute.

R.C. 2317.02(C) prohibits clergy from testifying concerning information confidentially communicated during religious counseling. Appellant did not allege that Reverend Culp testified in court concerning his affairs. The statute does not prohibit a minister from disclosing confidential information outside legal proceedings. The legislature did not intend R.C. 2317.02 to protect persons against disclosures outside legal proceedings. R.C. 2317.02 does not create a statutory negligence cause of action in this case.

Appellee argues that a cause of action against a physician for breach of the physician/patient privilege has been recognized, based on R.C. 2317.02. See Hammonds v. Aetna Cas. & Sur. Co. (N.D.Ohio 1965), 3 Ohio Misc. 83, 31 O.O.2d 174, 237 F.Supp. 96. Hammonds found that a cause of action existed based on the public policy expressed in R.C. 2317.02 and 4731.22. R.C. 4731.22 provides that a physician's state license to practice medicine could be revoked for a disclosure of confidential patient information.

In the case of a clergy member, there is no statute akin to R.C. 4731.22, prohibiting the disclosure of confidential information. A subsequent decision applying Ohio law indicates that the cause of action for breach of confidentiality by a doctor is based solely on R.C. 4731.22. See Neal v. Corning Glass Works Corp. (N.D.Ohio 1989), 745 F.Supp. 1294, 1297. There is no statute upon which to base an action for statutory negligence in this case.

Appellant has stated a cause of action for common-law negligence. Although appellant did not plead common-law negligence, it is sufficient that the facts of the complaint assert the elements of common-law negligence. Illinois Controls, Inc. v. Langham (1994), 70 Ohio St.3d 512, 639 N.E.2d 771. The elements of a cause of action for negligence are duty, breach of duty, and injury resulting proximately therefrom. See Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77, 15 OBR 179, 180-181, 472 N.E.2d 707, 710; Keister v. Park Centre Lanes (1981), 3 Ohio App.3d 19, 3 OBR 20, 443 N.E.2d 532. Appellant asserted that Culp had a duty, arising out of the minister/parishioner relationship, to maintain confidentiality. Appellant alleged that Culp breached this duty by disclosing the information to his wife and her family, and appellant was injured as a result. Appellant alleged sufficient facts in his opening statement and complaint to assert the elements of negligence.

We must consider whether this action is a "clergy malpractice action," because a cause of action for clergy malpractice may not be viable. The Ohio Supreme Court has declined to address whether a cause of action for clergy malpractice exists. See Strock v. Pressnell (1988), 38 Ohio St.3d 207, 527 N.E.2d 1235; Byrd v. Faber (1991), 57 Ohio St.3d 56, 565 N.E.2d 584. Other jurisdictions have held that such a cause of action does not exist. Nally v. Grace Community Church (1988), 47 Cal.3d 278, 253 Cal.Rptr. 97, 763 P.2d 948; Destefano v. Grabrian (Colo.1988), 763 P.2d 275; see Annotation (1990), 75 A.L.R.4th 750. These cases reason that it is against public policy to impose such a duty on clergy members. Also, such an action may entangle the courts in First Amendment areas guaranteeing the freedom to practice religion.

"Clergy malpractice" has been defined as the failure to exercise the degree of care and skill normally exercised by members of the clergy in carrying out their religious and professional duties. Strock, supra. An action for clergy malpractice is not a theory of ordinary negligence or tort but a separate and distinct cause of action. Strock; Byrd, supra. A cause of action for clergy malpractice is not available when other torts provide a remedy. Id.

In this case, the cause of action is for ordinary negligence, so a clergy malpractice action is not available. There is not an issue in this case over whether Culp exercised the degree of care and skill required of a clergy member....