Sustin v. Fee

• Decision Date: 10 February 1982
• Docket Number: No. 81-328,81-328
• Citation: 431 N.E.2d 992,23 O.O.3d 182,69 Ohio St.2d 143
• Parties: , 23 O.O.3d 182 SUSTIN et al., Appellants, v. FEE, Appellee.
• Court: Ohio Supreme Court

Page 143

69 Ohio St.2d 143

431 N.E.2d 992, 23 O.O.3d 182

SUSTIN et al., Appellants, v. FEE, Appellee.

No. 81-328.

Supreme Court of Ohio.

Feb. 10, 1982.

Thrasher, Dinsmore & Dolan Co., L. P. A., Dale H. Markowitz and David M. Ondrey, Chardon, for appellants.

Andrews & Todoroff and J. Melvin Andrews, Eastlake, for appellee.

HOLMES, Justice.

The gravamen of appellants' complaint is that appellee's action was a tortious intrusion upon their right of seclusion. In the leading case of Housh v. Peth (1956), 165 Ohio St. 35, 133 N.E.2d 340, this court recognized a cause of action for invasion of privacy based upon the wrongful intrusion upon a person's seclusion. In so doing, this court held, at paragraphs one and two of the syllabus:

"1. The right of privacy is the right of a person to be let alone, to be free from unwarranted publicity, and to live without unwarranted interference by the public in matters with which the public is not necessarily concerned.

"2. An actionable invasion of the right of privacy is the unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities." ⁴

The scope of a person's liability for intrusion into another's seclusion is stated in Section 652B of the Restatement of Torts 2d, as follows:

"One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person."

Here, there is an additional factor present. The appellee, while conducting the surveillance, was a public official who was acting within the scope of his official duties. Because of this status appellee was protected by the defense of official immunity. Official immunity requires a showing that the public official acted in bad faith or with a corrupt motive before liability can attach. See Scot Lad Foods v. Secy. of State (1981), 66 Ohio St.2d 1, 8, 418 N.E.2d 1368, and cases cited therein. ⁵

Based upon the foregoing, it becomes apparent that resolution of this dispute requires a two-step analysis: did the appellee undertake the surveillance from bad faith or with a corrupt motive, and, if so, was the appellee's surveillance of the appellants highly offensive to a reasonable person? However, because of our resolution, we will consider only the first part of this question.

Additionally, the Court of Appeals reversed the trial court's judgment in this cause for failure to grant appellee a directed verdict or, in the alternative, a judgment notwithstanding the verdict. So, the focus of our inquiry is whether reasonable minds ⁶ could come to but one conclusion-that appellee did not act from bad faith or with a corrupt motive.

A review of the record leads us to the determination that reasonable minds could conclude only that appellee did not act from bad faith or with a corrupt motive. Appellee had appellant's house under surveillance on three occasions for approximately two hours. Although the appellee once brought binoculars, they were used solely to observe the kennel and not to intrude upon the privacy of appellants' lives.

Appellants argue that appellee could have obtained information about the commercial nature of their kennel in a less intrusive manner. Appellants assert that appellee could have discovered the information he sought by reading certain articles that had been printed about the kennel in the local press, or by examining appellants' records.

Evidence that there was a less intrusive manner for the appellee to obtain the desired information may well be supportive of an allegation that appellants suffered an invasion of their privacy or an allegation that the appellee acted in bad faith. However, it is not of itself sufficient to warrant a finding that the appellee acted in bad faith or with a corrupt motive. The record is devoid of evidence which would support such a finding. ⁷

Consequently, the trial court erred in not granting appellee a directed verdict.

Accordingly, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

WILLIAM B. BROWN, SWEENEY, LOCHER and KRUPANSKY, JJ., concur.

FRANK D. CELEBREZZE, C. J., and CLIFFORD F. BROWN, J., dissent.

CLIFFORD F. BROWN, Justice, dissenting.

In my view the evidence demonstrates that the township zoning inspector repeatedly visually surveyed the plaintiffs' premises with binoculars to observe a dog kennel operated by plaintiffs thereon. He refused to stop the practice despite being offered the same information he required, knowing his surveillance was causing the plaintiffs and their family great discomfort and anxiety. Since he had available much less obtrusive means of determining the actual use of the premises, the reasonableness, bad faith or corrupt motive of the zoning inspector's investigation was at issue, questions of fact requiring determination by a jury. Alabama Electric Co-operative, Inc., v. Partridge (1969), 284 Ala. 442, 225 So.2d 848, 851 (whether insurer's investigation of a person asserting a claim was conducted within reasonable bounds was a question for the jury in an invasion of privacy action).

It is the duty of a trial court to submit an essential issue to the jury when there is sufficient evidence relating to that issue to permit reasonable minds to reach different conclusions on that issue. O'Day v. Webb (1972), 29 Ohio St.2d 215, 280 N.E.2d 896. That reasonable minds could reach different conclusions on the factual issues requiring jury determination is evinced by the eight jurors who rendered a verdict for plaintiffs, by the trial judge who submitted the case to the jury for its determination, and by the dissenting appellate judge who correctly observed "whether the conduct of appellant (defendant) was unreasonable or obtrusive was a jury question." These ten reasonable minds reached a conclusion different from the two appellate judges concurring in the rendition of final judgment...