Welling v. Weinfeld

• Decision Date: 06 June 2007
• Docket Number: No. 2005-1964.,2005-1964.
• Citation: 2007 Ohio 2451,113 Ohio St.3d 464,866 N.E.2d 1051
• Parties: WELLING et al., Appellants, v. WEINFELD, Appellee.
• Court: Ohio Supreme Court

866 N.E.2d 1051

113 Ohio St.3d 464

2007-Ohio-2451

WELLING et al., Appellants, v. WEINFELD, Appellee.

No. 2005-1964.

Supreme Court of Ohio.

Submitted October 4, 2006.

Decided June 6, 2007.

Baker, Dublikar, Beck, Wiley & Mathews and Ralph F. Dublikar, North Canton, for appellants.

Brouse McDowell and Clair E. Dickinson, for appellee.

PFEIFER, J.

Factual and Procedural Background

{¶ 1} From neighborhood friction that spiraled into dueling litigation has emerged a significant question for this court: Does Ohio recognize the "false light" theory of the tort of invasion of privacy? Today we recognize that theory of recovery.

{¶ 2} The plaintiff-appellee, Lauri Weinfeld, and defendants-appellants, Robert and Katherine Welling, are neighbors in Perry Township in Stark County. Weinfeld owns and operates a party center next to her home, which hosts banquets, parties, and outdoor weddings. The Wellings live next to the party center. Weinfeld and the Wellings each alleged on a number of theories that the activities of the other interfered with their legitimate use of their own property.

{¶ 3} Weinfeld sued, alleging that the Wellings' use of yard and farm equipment during party center events constituted nuisance, trespass, invasion of privacy, interference with business relations, and intentional infliction of emotional distress. It is one of the Wellings' counterclaims, invasion of privacy, that is the focus of this case.

{¶ 4} At trial, the Wellings alleged two sets of facts supporting their invasion-of-privacy claim. First, they alleged that Weinfeld had focused floodlights on and had conducted videotape surveillance of their property.

{¶ 5} The second set of facts forms the basis of the issue in this case. During the spring of 2000, someone threw a rock through a plate-glass window at Weinfeld's party center. Weinfeld suspected that the culprit was the Wellings' son, Robert. Weinfeld created handbills, printed on 8½-by-11-inch paper, offering a reward for information regarding the perpetrator. The handbill read:

$500.00

REWARD

for any information which leads to the conviction of the person(s) responsible for throwing a rock through the window of Lakeside Center Banquet Hall (also known as the "Party Center") in the Dee Mar Allotment, in Perry Township, on Monday, May 8th or Tuesday, May 9th, 2000.

Any tips will be kept confidential. Call the Perry Township Police Department's Detective Bureau at 478-5121. Reward will be paid in cash.

{¶ 6} Weinfeld admitted that she had no proof that the Wellings were responsible for the damage. She further admitted that she distributed the handbills at two locations outside the neighborhood that were of special significance to the Wellings: at the Pepsi bottling plant where Robert Welling and his son worked and at the schools the Welling children attended.

{¶ 7} The Wellings allege that Weinfeld's distribution of the handbills spread wrongful publicity about them that unreasonably placed them in a false light before the public.

{¶ 8} On November 22, 2002, a jury entered a defense verdict in favor of the Wellings on Weinfeld's claims and further found that Weinfeld had invaded the Wellings' privacy. The jury interrogatory on the invasion-of-privacy claim did not delineate the facts upon which the jury based its verdict. The jury awarded the Wellings $5,412.38 in compensatory damages and $250,000 in punitive damages. Attorney fees were stipulated to be $10,000.

{¶ 9} On December 6, 2002, Weinfeld moved for judgment notwithstanding the verdict or in the alternative for a new trial or remittitur. On June 5, 2003, the trial court overruled the plaintiff's motion for judgment notwithstanding the verdict, but granted a remittitur of the punitive damages award to $35,000, subject to acceptance by the Wellings. The Wellings did not accept the remittitur. The trial court therefore granted a new trial on the Wellings' invasion-of-privacy claim.

{¶ 10} Weinfeld and the Wellings both appealed the trial court's decision. Weinfeld argued that the trial court should have granted her motion for judgment notwithstanding the verdict on the Wellings' invasion-of-privacy claim. The appellate court held that the trial court did not abuse its discretion in denying the motion, holding that an invasion-of-privacy action could lie based upon Weinfeld's use of the video camera and floodlights. However, as to false-light invasion of privacy based upon the distribution of the handbill, the appellate court made no determination, noting that this court had not yet adopted the false-light invasion-of-privacy theory of recovery. The court wrote:

{¶ 11} "[I]t remains an open question, rather than an absolute rejection whether such theory would be recognized. We do not choose to decide what constitutes an appropriate case wherein the Ohio Supreme Court would finalize such issue as we are not required in this case to reach such a decision and would be reluctant, in any event, to do so without affirmative guidance from the Supreme Court." Weinfeld v. Welling, Stark App. No. 2004CA00340, 2005-Ohio-4721, 2005 WL 2175141, ¶ 57.

{¶ 12} The appellate court thus removed the issue of false-light invasion of privacy from this case, limiting the retrial to the issue of invasion of privacy based upon Weinfeld's intrusion upon the Wellings' seclusion. The Wellings appealed, urging this court to recognize that a cause of action exists under Ohio law for false-light invasion of privacy.

{¶ 13} The cause is before this court upon the acceptance of a discretionary appeal. 108 Ohio St.3d 1435, 2006-Ohio-421, 842 N.E.2d 61.

Law and Analysis

{¶ 14} In Housh v. Peth (1956), 165 Ohio St. 35, 59 O.O. 60, 133 N.E.2d 340, this court first recognized a cause of action for invasion of privacy. The court listed three instances in which the claim could be brought:

{¶ 15} "An actionable invasion of the right of privacy is [1] the unwarranted appropriation or exploitation of one's personality, [2] the publicizing of one's private affairs with which the public has no legitimate concern, or [3] 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." Id. at paragraph two of the syllabus.

{¶ 16} Noticeably absent from Housh is the recognition of a cause of action based upon publicity that places a person in a false light before the public. But Housh was decided before the 1960 publication of Dean William L. Prosser's influential law review article, Privacy (1960), 48 Cal. L.Rev. 383, wherein Prosser described four distinct types of invasion of privacy:

{¶ 17} "1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.

{¶ 18} "2. Public disclosure of embarrassing private facts about the plaintiff.

{¶ 19} "3. Publicity which places the plaintiff in a false light in the public eye.

{¶ 20} "4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness." Id. at 389.

{¶ 21} The Restatement of the Law 2d, Torts (1977), Section 652A incorporated the false-light theory as one of the four causes of action included under the umbrella of invasion of privacy. Restatement of the Law 2d, Torts, Section 652E sets forth the elements of false-light invasion of privacy:

{¶ 22} "One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

{¶ 23} "(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

{¶ 24} "(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."

{¶ 25} This court has not addressed head-on the viability of a cause of action in Ohio for false-light invasion of privacy, although it referred to the claim in a footnote in Sustin v. Fee (1982), 69 Ohio St.2d 143, 23 O.O.3d 182, 431 N.E.2d 992. Sustin was an invasion-of-seclusion claim, not a false-light claim; the plaintiffs complained that a village zoning inspector was conducting surveillance of their property with binoculars. The court wrote that Housh had established the tort of invasion of privacy in Ohio and quoted that case's second syllabus paragraph, which set forth three actionable types of invasion of privacy. Id. at 145, 23 O.O.3d 182, 431 N.E.2d 992. In a footnote, the court wrote that there were four separate recognized branches of invasion of privacy, including false light:

{¶ 26} "Today the intrusion into a person's seclusion is recognized as but one of four separate branches of tortious invasion of privacy. These are set out in Section 652A of the Restatement of Torts 2d, at page 376, as follows:

{¶ 27} "`(1) One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other.

{¶ 28} "`(2) The right of privacy is invaded by

{¶ 29} "`(a) unreasonable intrusion upon the seclusion of another * * *

{¶ 30} "`(b) appropriation of the other's name or likeness * * *

{¶ 31} "`(c) unreasonable publicity given to the other's private life * * *

{¶ 32} "`(d) publicity that unreasonably places the other in a false light before the public * * *.' See, also, Prosser on Torts (4 Ed.), 802, Sec. 117." (Ellipses sic.) Sustin, 69 Ohio St.2d at 145, 23 O.O.3d 182, 431 N.E.2d 992, fn. 4.

{¶ 33} The court's affirmative acknowledgement of false-light invasion of privacy indicated an inclination toward recognizing it as a separate cause of action. However, in Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen & Helpers of Am. (1983), 6 Ohio St.3d 369, 6 OBR 421, 453 N.E.2d 666, this court made clear that whatever it had said in Sustin did not constitute a holding on the issue:

{¶ 34} "[T]his court has not recognized a cause of action for invasion of privacy under a `false...