Leichtman v. Wlw Jacor Communications, Inc.

Citations: 634 N.E.2d 697; 92 Ohio App. 3d 232; 46 A.L.R. 5th 939; 1994 Ohio App. LEXIS 198Docket: No. C-920922.

Court: Ohio Court of Appeals; January 25, 1994; Ohio; State Appellate Court

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Ahron Leichtman appeals the trial court's dismissal of his complaint against WLW Jacor Communications and its hosts for battery, invasion of privacy, and a violation of health regulations. Leichtman argues that his complaint adequately stated a claim for relief, contesting the trial court's acceptance of the defendants' motion to dismiss under Civ.R. 12(B)(6). He claims to be a prominent anti-smoking advocate and alleges that during a radio appearance on the Great American Smokeout, host Andy Furman intentionally blew cigar smoke in his face, causing discomfort and distress. Under Ohio's notice pleading rules, a complaint only needs to present a short and plain statement of the claim, with courts assuming the truth of factual allegations when evaluating a motion to dismiss. To dismiss a complaint, it must be clear that no set of facts could entitle the plaintiff to recovery. Leichtman argues that Furman's actions constituted battery, as defined by the Restatement of Torts, which requires intentional harmful or offensive contact. The Supreme Court of Ohio defines offensive contact as that which violates a reasonable sense of personal dignity. Tobacco smoke is recognized as a physical substance capable of causing contact. Leichtman's allegations of Furman's actions meet the criteria for battery under Ohio law, and even minimal damages are sufficient for a claim. Other jurisdictions have similarly recognized that intentionally directing tobacco smoke at another can constitute battery.

The court does not accept the "smoker's battery" theory, which holds that liability arises from the substantial certainty that exhaled smoke will contact a nonsmoker. The decision does not address whether the "substantial certainty" aspect from the Restatement of Torts can impose liability in employment cases, as Leichtman's battery claim is solely based on Furman's intentional act of blowing smoke in his face. The court finds no need to consider the passive contact theory from McCracken v. Sloan regarding secondary smoke since the claim is rooted in a deliberate act.

Cunningham is implicated as he allegedly encouraged Furman's actions, thus potentially incurring liability akin to a principal. However, WLW, as Furman's employer, is generally not liable for intentional torts of employees unless these acts serve the employer's business interests. The court notes that employer liability under respondeat superior is typically a factual question. Leichtman's battery claim against the three defendants is sufficiently pled to withstand a motion to dismiss. Conversely, his claims regarding invasion of privacy do not hold, as he willingly entered the studio, negating the assertion of substantial intrusion. The trial court appropriately granted the motion to dismiss for the first and third counts of Leichtman's complaint.

Leichtman's third count seeks to establish a private right of action for violations of Cincinnati Board of Health Regulation No. 00083, which prohibits smoking in designated public areas. The court acknowledges that, even if municipal regulations can be equated with public policy from state statutes, the regulation grants rights to nonsmokers that were not available under common law. Since the regulation includes specific sanctions for enforcement, there is no implied private remedy for its violation, supported by precedents such as R.C. 3707.99 and relevant case law. 

The court notes that frivolous lawsuits can overwhelm the judicial system, delaying justice for significant cases. However, unless there are grounds for sanctions against frivolous appeals, the right to sue is upheld under Section 16, Article I of the Ohio Constitution, which guarantees access to the courts for redress of injuries. The decision highlights the need for alternative dispute resolution mechanisms outside the court system to address minor disputes without the associated costs of litigation. 

Ultimately, the court affirms the trial court's judgment regarding the first and third counts but reverses the dismissal of the battery claim in the second count, allowing it to proceed. The case is remanded for further proceedings specifically on the battery claim. The judges concur in the judgment.