Leichtman v. Wlw Jacor Communications, Inc.

634 N.E.2d 697 · Ohio Court of Appeals · 1994

Facts

Ahron Leichtman, a nationally known antismoking advocate, was invited to appear on the WLW Bill Cunningham radio talk show to discuss the harmful effects of smoking. While Leichtman was in the radio studio, Andy Furman, another WLW talk-show host, lit a cigar. Furman then repeatedly blew smoke in Leichtman’s face. This action was allegedly done for the purpose of causing Leichtman physical discomfort, humiliation, and distress.

Procedural history

The plaintiff-appellant, Ahron Leichtman, appealed from the trial court’s order. The trial court had dismissed his complaint against the defendants-appellees, WLW Jacor Communications, William Cunningham, and Andy Furman. The complaint alleged battery, invasion of privacy, and a violation of a Cincinnati Board of Health regulation. The trial court granted the defendants' Civ.R. 12(B)(6) motion to dismiss all claims.

Issue

The legal question is whether the plaintiff's complaint sufficiently stated claims for battery, invasion of privacy, and violation of a health regulation to withstand a motion to dismiss. Specifically, the court considered if intentionally blowing cigar smoke in someone's face constitutes battery.

Holding

The court affirmed the trial court's dismissal of the invasion of privacy and health regulation claims. However, it reversed the dismissal of the battery claim, finding it sufficient to state a claim upon which relief could be granted, and remanded the case for further proceedings on that claim.

Rule

Battery occurs if an actor intends to cause harmful or offensive contact with another, and such contact directly or indirectly results. Offensive contact is defined as that which is disagreeable, nauseating, painful, or affronting to a reasonable sense of personal dignity. Tobacco smoke, as particulate matter, possesses the physical properties capable of making contact. Furthermore, one who encourages or incites a battery can be equally liable as a principal, and employer liability for an employee's intentional torts is typically a question of fact.

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