Court Recognizes ‘False Light’ Invasion of Privacy

July 11, 2007 Ohio:

2005-1964. Welling v. Weinfeld, 2007-Ohio-2451.

Stark App. No. 2004CA00340, 2005-Ohio-4721. Judgment reversed and cause remanded.

Moyer, C.J., Sweeney, Pfeifer, Lundberg Stratton and O'Donnell, JJ., concur. O'Connor and Lanzinger, JJ., dissent and would dismiss the cause as having been improvidently accepted.

James J. Sweeney, J., of the Eighth Appellate District, was assigned to sit for Resnick, J., whose term ended on January 1, 2007. Cupp, J., whose term began on January 2, 2007, did not participate in the consideration or decision of this case. Court Opinion:

June 6, 2007) The Supreme Court of Ohio today for the first time recognized the right to sue for damages in cases where an individual's right to privacy has been violated by publicity that portrays the person in a “false light.”

In a 5-2 decision authored by Justice Paul E. Pfeifer, the Court remanded a dispute between neighboring Stark County landowners to the trial court with instructions to consider whether one of the disputants invaded the privacy of her neighbors not only by aiming floodlights and security cameras at their property, but also by posting handbills regarding alleged vandalism of her property at the neighbors' place of employment and their childrens' school.

“In Ohio, o ne 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 (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,” Justice Pfeifer wrote in the majority opinion.

Joining Justice Pfeifer in the majority were Chief Justice Thomas J. Moyer, Justices Evelyn Lundberg Stratton and Terrence O'Donnell and Judge James L. Sweeney of the 8th District Court of Appeals, who sat by assignment in place of former Justice Alice Robie Resnick, who did not participate in the case. Justice Robert R. Cupp, whose term of office began on Jan. 2, 2007, did not participate in the case. Justices Maureen O'Connor and Judith Ann Lanzinger dissented without written opinion and indicated that they would have dismissed the case as having been improvidently allowed.

The case arose from a dispute between owners of adjoining properties in the Canton suburb of Perry Township. In 1998 Lauri Weinfeld purchased two parcels of land adjacent to the home of longtime residents Robert and Katherine Welling. Weinfeld lived in a house on one parcel and used the other to operate a business known as “Lakeside Center,” a facility which she promoted as a site for banquets, private parties and outdoor weddings.

In the Spring of 1999, Weinfeld began using the Lakeside property for outdoor weddings and receptions on most weekends. An ongoing dispute developed when Weinfeld complained about the Wellings' operation of lawn mowers and other loud equipment on their property while weekend functions and other business activities were taking place at her adjacent party facility. The conflict escalated when Weinfeld installed floodlights and surveillance cameras on her property that were directed toward the Wellings' home.

Weinfeld filed a lawsuit in the Stark County Court of Common Pleas alleging that the Wellings' noisy activities on their property while outdoor events were being held at Lakeside Center were a public nuisance and constituted trespass, invasion of privacy, interference with Weinfeld's business relations and intentional infliction of emotional distress. The Wellings counter-sued, alleging that Weinfeld's actions had invaded their privacy.

While those actions were pending, a window in a building at the Lakeside Center was found broken. Weinfeld printed up posters offering a $500 reward for information about the incident. She posted these notices on the door of the Pepsi-Cola Bottling Company where Mr. Welling and one of the Wellings' children were both employed and at the schools attended by the Wellings' children. The bottling plant and schools were several miles from the Lakeside Center property.

A jury trial was conducted to resolve the disputants' claims and counter-claims. The jury found in favor of the Wellings on all of Weinfeld's claims against them. On the Wellings' counter-claims the jury found that Weinfeld had invaded their privacy. The Wellings had alleged two sets of facts alleging two different types of invasion of privacy: (1) that Weinfeld's videotaping of them in their yard and installation of floodlights and surveillance cameras aimed at their home constituted an invasion of privacy by intruding on their seclusion, and (2) that Weinfeld's distribution of the reward posters regarding her broken window at their place of employment and their childrens' schools constituted invasion of privacy by means of publicity portraying the Wellings in a “false light” to the public. The jury awarded the Wellings $5,412.88 in compensatory damages, $250,000 in punitive damages plus $10,000 for their attorney's fees, but did not set forth whether the verdict was based upon one or both of the Wellings' theories of recovery.

The trial court judge denied a motion by Weinfeld that judgment be entered in her favor notwithstanding the jury verdict. The judge did grant a reduction in the jury's award of punitive damages, and offered the Wellings a choice between accepting a reduced punitive damage award of $35,000 or the court's issuance of an order vacating the jury's verdict on their counterclaims and requiring a new trial limited to those claims and the amount of any damages due them. The Wellings refused to accept the reduced punitive damage award, and the trial court vacated the jury verdict and award and ordered a new trial on their counterclaims. On review, the 5th District Court of Appeals affirmed the trial court's action, but limited the retrial to the issue of invasion of privacy based upon invasion of seclusion, holding that Ohio had not yet adopted the “false light” theory of recovery.

The Wellings sought Supreme Court review of the 5th District's holding. The Court agreed to hear arguments on the sole issue of whether the Wellings' claim against Weinfeld alleging “false light” invasion of privacy is a cause of action recognized under Ohio law.

In today's opinion, Justice Pfeifer wrote that “false light” is one of four categories of invasion of privacy claims identified by leading legal scholars in the widely cited “Restatement of the Law.” He further noted that the Supreme Court of Ohio referenced “false light” invasion of privacy as a generally accepted theory of tort liability in a footnote to a 1982 decisions, Sustin v. Fee. In addition, more than 20 state and federal courts outside Ohio which have recognized publicity portraying a person in a “false light” as actionable.

“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,” Justice Pfeifer wrote. “The right to privacy naturally extends to the ability to control false statements made about oneself. Without false light, the right to privacy is not whole, as it is not fully protected by defamation laws.”

Justice Pfeifer dismissed concerns raised by Weinfeld's attorneys, including the suggestion that recognition of a false-light privacy cause of action would interfere with freedom of speech and of the press.

“[W]e believe that the First Amendment concerns that some courts have raised in regard to false-light claims are overblown,” he wrote. “False-light defendants enjoy protections at least as extensive as defamation defendants.” The Court adopted the higher standard of fault recognized in the Restatement of the Law designed to ensure First Amendment protection. In order to demonstrate a false-light liability, plaintiff's will have to demonstrate that the defendant “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.”

Contacts

Ralph F. Dublikar, 330.499.6000, for Robert and Katherine Welling. ..more.. by Supreme Court of Ohio