Leichtman v. WLW Jacor Commc'ns

92 Ohio App. 3d 232, 634 N.E.2d 697 (1994)



When construing a complaint for failure to state a claim, under Ohio R. Civ. P. 12(B)(6), the court assumes that the factual allegations on the face of the complaint are true. For a court to grant to dismiss, it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. 


A guest entered the radio studio to make a public radio appearance with the host. At the host's urging, a smoker repeatedly blew cigar smoke in the guest's face. The guest filed a case against the radio station and the host for battery, invasion of privacy, and a violation of Cincinnati, Ohio, Bd. of Health Reg. § 00083 contending that his complaint was sufficient to state a claim upon which relief could be granted. The trial court, however, dismissed his complaint. The case was appealed to the Court of Appeals of Ohio.


Did the court properly dismiss the complaint?




The court held that the trial court erred in dismissing the battery complaint because when the smoker intentionally blew cigar smoke in the guest's face, under Ohio common law, he committed a battery. The court held that no matter how trivial the incident, a battery was actionable, even if damages were only one dollar. The court further held that the guest's other claims, invasion of his privacy and violation of a local non-smoking regulation, were not sufficient to withstand a motion to dismiss. The regulation created rights for nonsmokers that did not exist at common law. There was no implied private remedy for violation of the non-smoking regulation because sanctions were provided to enforce the regulation. The court held that whether the radio station was liable under the doctrine of respondeat superior because its employee was acting within the scope of employment was a question of fact.

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