578 N.E.2d 901
No. 87-09609.Court of Claims of Ohio.
Decided November 30, 1988.
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Thomas M. Tyack, for plaintiff.
Anthony J. Celebrezze, Jr., Attorney General, and Jordan Finegold, Assistant Attorney General, for defendant.
FRED J. SHOEMAKER, Judge.
On September 3, 1987, the plaintiff, Toni Finnie Fisher, filed this action against the defendant, the Ohio Department of Rehabilitation and Correction, alleging that acts by the defendant’s employees constituted both an invasion of her privacy and an intentional infliction of emotional distress. On November 4, 1988, this matter was tried before this court. The court has considered the evidence and arguments presented, relating to the issues of liability and damages, and renders the following decision.
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Findings of Fact
This action is a result of a conversation which occurred sometime in January 1985 between the plaintiff, who was a furlough officer working for defendant, and several other employees of the defendant. The other employees involved in the conversation were identified as George May, Valerie Stanton, Damon Craft, and Wallace McDougald. Testimony at trial revealed that the topic of said conversation was sexual situations involving minor children. Additionally, the testimony disclosed that the plaintiff discussed several incidents which she had with her then seven-year-old son; the incidents described had sexual overtones.
Subsequent to this conversation, John S. Dean, the Superintendent of Columbus Reintegration Center, and David Rodgers, the Reintegration Center’s Administrator, questioned the plaintiff regarding the above-mentioned conversation. Prior to this questioning, Dean had collected written comments from the other persons also involved in the conversation.
Dean and Rodgers proceeded to instruct the plaintiff to discontinue engaging in personal conversations which could be deemed unprofessional in nature. Dean concluded his investigation by compiling a report concerning the plaintiff’s behavior and submitted said report to Rex Zent, then the Chief of Division of Parole and Community Services. The report and its attachments were entered into evidence as Plaintiff’s Exhibit No. 1.
The report prepared by Dean was not placed in the plaintiff’s personnel file; however, Dean did keep a copy for for his own file.
A domestic relations case between the plaintiff and her former husband was pending in early September 1985. A hearing was scheduled for September 12, 1985, concerning the custody of the parties’ minor child. Michael Close, who was counsel for the plaintiff’s husband, issued a subpoena to the defendant, which directed the defendant to bring “all records relating to Toni C. Finnie, including reports on any investigations conducted of Toni C. Finnie” to the aforementioned custody hearing. Rather than providing the subpoenaed information to the court at the appointed time, the defendant forwarded the documents directly to Close.
The plaintiff has alleged that the direct mailing of the pertinent records to Close has caused her to suffer embarrassment, emotional distress and mental anguish and, therefore, she seeks damages for invasion of privacy and intentional infliction of emotional distress.
Conclusions of Law
The elements which a plaintiff must satisfy to succeed in an invasion of privacy action are enunciated by the Franklin County Court of Appeals as follows:
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“In order for a plaintiff to state a claim for which relief can be granted under the `publicity’ tort of invasion of privacy: (1) there must be publicity, i.e., the disclosure must be of a public nature, not private; (2) the facts disclosed must be those concerning the private life of an individual, not his public life; (3) the matter publicized must be one which would be highly offensive and objectionable to a reasonable person of ordinary sensibilities; (4) the publication must have been made intentionally, not negligently; and (5) the matter publicized must not be a legitimate concern to the public.” Killilea v. Sears, Roebuck Co. (1985), 27 Ohio App.3d 163, 27 OBR 196, 499 N.E.2d 1291, paragraph one of the syllabus. See, also, 35 Ohio Jurisprudence 3d (1986) 595, Defamation and Privacy, Section 161.
Upon review of the record and in consideration of the testimony, the court finds that the plaintiff, having the burden of proof as to the five above-mentioned elements, did not prove by a preponderance of the evidence that an invasion of privacy occurred. The first element, publicity, has been defined as “communicating the matter to the public at large.” Killilea v. Sears, Roebuck Co., 27 Ohio App.3d at 166, 27 OBR at 199, 499 N.E.2d at 1294. The plaintiff contends that the defendant’s mailing of the subpoenaed information to Close constituted “publicity.” The court cannot reasonably construe said mailing to be a publication to the public at large, since there is a failure of proof demonstrating that the information became public knowledge, and thus does not agree with the plaintiff.
The plaintiff also believes she has satisfied the second element of the test for invasion of privacy, i.e., release of information concerning the private life of an individual. I Killilea, the court stated that “[t]here is no liability when the defendant merely gives further publicity to information about the plaintiff that is already public, such as matters of public record * * * or matters that the plaintiff leaves open to the public eye * * *.” Id. at 166-167, 27 OBR at 199, 499 N.E.2d at 1295. The court agrees with the defendant that the report merely recounts a conversation which the plaintiff publicly and openly conducted with her fellow employees. The plaintiff’s discussion of her personal experiences were freely offered to the persons around her without concern of the impact it might have on her character.
In view of the above, the court shall not enter into a discussion of the aforementioned remaining elements pertaining to the tort of invasion of privacy; in this regard let it suffice that the court concurs with the rationale set forth in the defendant’s September 9, 1988 pretrial brief. It is the court’s finding that the plaintiff has failed to prove the elements of said tort by a preponderance of the evidence and thus such a claim is not well-taken.
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The plaintiff also contends that the defendant intentionally inflicted emotional distress during the incident. Ohio has recognized the tort of intentional infliction of serious emotional distress. Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 6 OBR 421, 453 N.E.2d 666. In Yeager the court stated in the syllabus that “[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.” See, also, id. at 374, 6 OBR at 426, 453 N.E.2d at 671, citing Restatement of Law 2d, Torts (1965) 71, Section 46(1).
The court is of the opinion that the defendant’s actions concerning the plaintiff’s report cannot be construed as being extreme, outrageous or performed with the intent to cause harm. The defendant’s mailing of the subpoenaed information directly to Close was an attempt to expedite the custody matter and not a deliberate act to cause emotional distress.
The plaintiff argued that the defendant’s action of mailing the documents directly to Close would unfairly prejudice her since the domestic relations judge could not rule on their admissibility. This court disagrees with plaintiff and is certain that the domestic relations judge would have the discretion in ruling whether said documents were admissible during the hearing. Furthermore, all parties would be entitled to study the documents prior to any court ruling. In addition, the court still would rule on all timely objections. The court finds that the plaintiff’s argument in this regard is without merit.
Upon review of the evidence and in consideration of the arguments presented at trial, the court finds that the plaintiff has failed to prove, by a preponderance of the evidence, that defendant’s actions constituted an invasion of privacy or that the defendant intentionally inflicted emotional distress upon the plaintiff. Accordingly, judgment is hereby rendered in favor of the defendant, the Ohio Department of Rehabilitation and Correction.
Judgment for defendant.
FRED J. SHOEMAKER, J., retired, of the Franklin County Court of Common Pleas, sitting by assignment.
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