Leichtman v. WLW Jacor Communications

Brief Fact Summary. Leichtman (Plaintiff) brought an action against defendants, WLW Jacor Communications, host, and smoker for battery, invasion of privacy, and a violation of a Cincinnati, Ohio ordinance, alleging that a radio station co-host repeatedly blew smoke in his face. The Hamilton County Court of Common Pleas (Ohio) dismissed his complaint. Plaintiff appealed

Synopsis of Rule of Law. The blowing of smoke on one’s person meets the requirements of a cause of action for battery because, however trivial the incident, when the elements of the cause of action are met (in this case battery, i.e., when the defendant acts intending to cause an offensive or harmful contact and an offensive or harmful contact actually results) the court must permit a cause of action.

Facts. The guest entered the radio studio to make a public radio appearance with the host. At the host’s urging, the smoker repeatedly blew cigar smoke in the guest’s face. The guest contended that his complaint was sufficient to sustain a claim of battery.

Issue. Does the blowing of smoke on one’s person constitute battery?
* Were the guest’s claims invasion of his privacy and violation of a local non-smoking regulation sufficient to withstand a motion to dismiss?
* Does the doctrine of respondeat superior (an employer’s being liable for the actions of his or her employees) apply, i.e., was the employee was acting within the scope of employment?

Held. The court held that no matter how trivial the incident, a battery was actionable, even where damages would be nominal. The court held also that the invasion of his privacy and violation of a local non-smoking regulation claims were not sufficient to withstand a motion to dismiss. The court further held that there existed no basis under common law for regulation creating rights for nonsmokers and that here was no implied private remedy for violation of the non-smoking regulation because sanctions were provided to enforce the regulation. The court held that the issue of liability pursuant to respondeat superior (whether the employee was acting within the scope of employment) was a question of fact. In sum: The court affirmed the dismissal of the invasion of privacy and violation of a local smoking regulation claims but reversed the dismissal of the battery claim. The case was thus remanded.

Discussion. Central to this case is the necessity of fulfilling the elements of battery and the definition of its various components, i.e., what constitutes intentionality, and harmful and offensive touching. First, an act may be deemed intentional where 1) the defendant intends to cause the consequences of his acts; or 2) where there exists substantial certainty that the tortuous conduct will result.
* Regarding what may be deemed harmful and offensive, the court here employed a rule from the Supreme Court, defining offensive contact as: “Contact which is offensive to a reasonable sense of personal dignity.” The court identified tobacco smoke as “particulate matter,” thus having the requisite “physical properties capable of making contact.”
* The doctrine of respondeat superior falls under the rubric of vicarious liability and will be discussed with greater detail at a later juncture. Suffice it to say in this instance, at issue is whether the actions of an employee were within the scope of employment, i.e., “to facilitate or promote” the employer’s business. The court here ruled that the conduct in question did not fulfill such requirement and thus dismissed that portion of the judgment.