Leichtman v. WLW Jacor Communications, Inc.

Ohio Court of Appeals · 1994 · Torts

TortsBatteryInvasion of PrivacyPleadingRespondeat Superiorbatteryoffensive contacttobacco smoke

Facts

Leichtman, an antismoking advocate, alleged that he was invited to appear on the WLW Bill Cunningham radio talk show on the Great American Smokeout to discuss the harmful effects of smoking and secondary smoke. While he was in the studio, Furman allegedly lit a cigar and repeatedly blew smoke in Leichtman's face for the purpose of causing physical discomfort, humiliation, and distress. The complaint further alleged that Furman acted at Cunningham's urging. Leichtman also asserted claims for invasion of privacy and for violation of Cincinnati Board of Health Regulation No. 00083.

Issue

Whether Leichtman's complaint stated a claim for battery, invasion of privacy, or a private cause of action for violation of the Cincinnati Board of Health regulation sufficient to survive dismissal under Civ.R. 12(B)(6). More specifically, the court considered whether intentionally blowing cigar smoke in someone's face can constitute offensive contact for battery.

Rule

Under Ohio common law, a battery occurs when a person acts intending to cause a harmful or offensive contact with another, and harmful or offensive contact directly or indirectly results. Contact is offensive if it is offensive to a reasonable sense of personal dignity, and tobacco smoke, as particulate matter, has physical properties capable of making contact. Under Civ.R. 12(B)(6), dismissal is improper unless it appears beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to relief.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a podcast studio in Cleveland, Nora Pike attends a live interview to discuss air quality. During a commercial break, host Devin Cross smirks, takes a puff from an herbal cigar, and deliberately exhales a dense stream of smoke inches from Nora's face after she asks him to stop.

If Nora sues Devin for battery and Devin moves to dismiss for failure to state a claim, what is the best result?

Explanation. The complaint should survive. Under the majority opinion, battery is sufficiently pleaded where the defendant intends harmful or offensive contact and such contact directly or indirectly results. Smoke is particulate matter capable of physical contact, and intentionally blowing it into someone's face may be offensive to a reasonable sense of personal dignity. The court also emphasized that even trivial batteries are actionable, so lack of serious injury does not justify dismissal. (Derived from Leichtman v. WLW Jacor Communications, Inc. (1994).)