Moran v. Lewis , 114 N.E.3d 1254 ( 2018 )

[Cite as Moran v. Lewis, 2018-Ohio-4423.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106634
RICHARD MORAN
PLAINTIFF-APPELLANT
vs.
MICHAEL A. LEWIS
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-14-832343
BEFORE: S. Gallagher, J., Boyle, P.J., and Keough, J.
RELEASED AND JOURNALIZED: November 1, 2018
ATTORNEY FOR APPELLANT
Mary Jo Hanson
55 Public Square, Suite 1550
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Joseph A. Ferrante
Lavell O. Payne
Nationwide Insurance Co.
4125 Highlander Parkway, Suite 200
Richfield, Ohio 44286
Also listed:
For Kevin Russell
S. Robert E. Lazzaro
Costanzo & Lazzaro
13317 Madison Avenue
Lakewood, Ohio 44107
SEAN C. GALLAGHER, J.:
{¶1} Richard Moran appeals the entry of judgment upon the pleadings entered in
Michael Lewis’s favor. Moran claims that Lewis, a private investigator hired to conduct
surveillance of Moran’s activities for a then-pending civil action, violated Moran’s “right to
privacy” and trespassed by installing global positioning system (“GPS”) tracking devices on two
of Moran’s vehicles. According to Moran, he has an expectation of privacy while traveling on
public roads and that privacy was violated by Lewis’s conduct. Moran further argues that such a
violation should essentially amount to a per se invasion of privacy under Ohio law. As much as
Moran would prefer to argue that he has a recognized expectation of privacy while traveling on
public roads, this case turns on the allegations in the complaint or, better stated, the failure to
properly plead an invasion of privacy claim under Ohio law.
{¶2} Before the trial court granted judgment in favor of Lewis, Moran joined Lewis in
seeking leave to file dispositive motions on whether the complaint set forth a viable claim for
invasion of privacy and trespass. Thus, any issues with the procedural posture of the dispositive
ruling would be, at best, invited error. Further, in this appeal Moran asked us to disregard any
perceived error in granting judgment in favor of Lewis upon the claims for trespass. The only
issue before this court is whether the allegations that a private citizen installed a GPS tracking
device on another individual’s motor vehicle to track its movement on public roads sufficiently
pled a violation of the right to seclusion that is recognized as an invasion of privacy under Ohio
law. It does not, and therefore, the allegations in the complaint failed to set forth a claim upon
which relief could be granted.
{¶3} We review a ruling on a motion for judgment on the pleadings de novo. Thornton
v. Cleveland, 176 Ohio App. 3d 122, 2008-Ohio-1709, 890 N.E.2d 353, ¶ 3 (8th Dist.). Motions
for judgment on the pleadings are governed by Civ.R. 12(C), which states as follows: “After
the pleadings are closed but within such time as not to delay the trial, any party may move for
judgment on the pleadings.” “In order to be entitled to a dismissal under Civ.R. 12(C), it must
appear beyond doubt that [the nonmovant] can prove no set of facts warranting the requested
relief, after construing all material factual allegations in the complaint and all reasonable
inferences therefrom in [the nonmovant’s] favor.” State ex rel. Toledo v. Lucas Cty. Bd. of
Elections, 95 Ohio St. 3d 73, 74, 2002-Ohio-1383, 765 N.E.2d 854. Parties may seek a dismissal
for failure to state a claim within the context of Civ.R. 12(C). When reviewing a Civ.R.
12(B)(6) motion to dismiss under this framework, we must accept the material allegations of the
complaint as true and make all reasonable inferences in favor of the plaintiff. Johnson v.
Microsoft Corp., 106 Ohio St. 3d 278, 2005-Ohio-4985, 834 N.E.2d 791, ¶ 6.
{¶4} In Ohio, an actionable invasion of privacy is (1) the unwarranted appropriation or
exploitation of one’s personality; (2) the publicizing of one’s private affairs with which the
public has no legitimate concern; or (3) the wrongful intrusion into one’s private activities in
such a manner as to outrage or cause mental suffering, shame, or humiliation to a person of
ordinary sensibilities. Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340 (1956), paragraph two of
the syllabus. Invasion of privacy under Ohio law is generally derived from the Restatement of
Torts. Under Restatement of the Law 2d, Torts, Section 652B (1977), a defendant may be liable
for intrusion upon another’s seclusion if the defendant intentionally intrudes upon the “solitude
or seclusion” or the private affairs or concerns of another, and if such an intrusion would be
highly offensive to a reasonable person. Moran invoked that third prong of the invasion of
privacy claim as stated in Housh; however, Moran failed to allege any intrusion, much less a
wrongful one, into his private activities or his right to seclusion.
{¶5} Instead, Moran claims that the installation of the GPS tracking device was a per se
invasion into his private activities and the law should be expanded to prevent private citizens
from using modern technology to track another’s travels on public roads. According to Moran,
the act of attaching a GPS device to another’s vehicle is prima facie evidence supporting the
invasion of privacy claim. He “urges this Court to reject the old thinking that you cannot have
privacy driving your car along Ohio’s highways.” Moran has not cited any authority supporting
the proposition that, as a matter of law, a private citizen tortiously invades the privacy of another
merely through the act of attaching a GPS device on another’s vehicle for the purpose of tracking
public movements. App.R. 16(A)(7); see, e.g., Turner v. Am. Car Rental, Inc., 92 Conn.App.
123, 130, 884 A.2d 7 (2005) (acknowledging the lack of legal authority demonstrating an
expectation of privacy on a public highway). In order to properly plead an invasion of privacy
claim, there must be allegations that the tracking invaded the seclusion or private affairs of
another. See Troeckler v. Zeiser, S.D.Ill. No. 14-cv-40-SMY-PMF, 2015 U.S. Dist. LEXIS
27594, 7 (Mar. 5, 2015) (plaintiffs failed to plead that the placement of the GPS led to the
disclosure of private facts); Villanova v. Innovative Investigations, Inc., 420 N.J. Super. 353, 21
A.3d 650, 652 (N.J.App.2011) (no evidence that the vehicle was driven into a private or secluded
location where one would have a reasonable expectation of privacy). The act of attaching a GPS
device does not in and of itself constitute the invasion into one’s seclusion or private affairs.
{¶6} Moran alleges that Lewis (1) attached a GPS tracking device to two of Moran’s
vehicles deceptively without his consent, (2) had no right to enter the private property to install
the devices, (3) recorded the locations of Moran’s vehicles on a continuing basis, and (4) hid the
information from Moran. However, there are no allegations that the recording of the tracking
information gleaned any private information or that an intrusion into Moran’s solitude, seclusion,
or private affairs was accomplished. Further, there are no allegations that the GPS tracking of
Moran’s public travels would be highly offensive to a reasonable person when the tracking
occurs with a device rather than physically tailing the vehicles. In this case, the complaint fails
to state a claim upon which relief can be granted — the plaintiff failed to allege facts that would
satisfy the elements of an invasion of privacy claim as articulated in Housh.
{¶7} In support of Moran’s request to expand the invasion of privacy claim to encompass
his generalized allegations that fail to allege each element of an invasion of privacy tort claim, he
cites the Supreme Court’s decision in United States v. Jones, 565 U.S. 400, 132 S. Ct. 945, 181
L. Ed. 2d 911 (2012), in which it was held that law enforcement’s act of trespass, by placing a
GPS tracking device on a suspect’s vehicle, was an unreasonable search. According to Moran,
however, Jones stands for the proposition that citizens have an expectation of privacy while
traveling on public roads, as articulated in Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507,
19 L. Ed. 2d 576 (1967). He is mistaken. Justice Antonin Scalia, writing for the majority in
Jones, specifically rejected the government’s claim that the expectation of privacy line of cases
applied or impacted the determination of whether the installation of a GPS tracking device
violated the Fourth Amendment. Jones at 405-406; but see State v. White, 5th Dist. Fairfield
No. 2010-CA-60, 2011-Ohio-4526, ¶ 66 (GPS technology infringes on the reasonable
expectation of privacy). Jones did not recognize an expectation of privacy in this context.
{¶8} In the alternative, Moran asks to supplant the law stated in Housh, 165 Ohio St. 35,
133 N.E.2d 340, and the Restatement of Torts with a bad faith or corrupt motive standard —
according to Moran any attachment of a GPS tracking device that was done in bad faith or with a
corrupt motive would be an invasion of privacy regardless of whether the device was used to
track public or private movements. In support of this new standard, Moran cites Sustin v. Fee,
69 Ohio St. 2d 143, 145, 431 N.E.2d 992 (1982).
{¶9} That case is not applicable to the particular facts of this case, and it did not create a
new standard for invasion of privacy. Sustin reiterated Ohio’s reliance on the Restatement of the
Law 2d, Torts, Section 652B, as the foundation for the invasion of privacy claims as set forth in
Housh. Sustin merely added an additional caveat to address the situation in which the
surveillance is conducted by a public official acting within the scope of his or her official duties.
In that situation, an additional pleading requirement is necessary because in order to avoid
immunity, the plaintiff must allege that the official acted in bad faith or with a corrupt motive.
Id. In light of the fact that Lewis is a private citizen, Sustin does not impact our analysis, nor
does it create a new standard to review invasion of privacy claims. The elements of an invasion
into another’s seclusion claim as articulated in Housh have not been altered.
{¶10} Under Ohio law, in order to properly plead an invasion of privacy claim premised
on the invasion into another’s seclusion, at a minimum, there must be allegations demonstrating
an intrusion, physical or otherwise, into another’s solitude or private affairs. Housh at paragraph
two of the syllabus. The Restatement of the Law 2d, Torts, Section 652B, provides that “‘the
defendant is subject to liability under the rule stated in this Section only when he has intruded
into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown
about his person or affairs.’” Salupo v. Fox, Inc., 8th Dist. Cuyahoga No. 82761,
2004-Ohio-149, ¶ 23, quoting Haynik v. Zimlich, 30 Ohio Misc.2d 16, 22, 508 N.E.2d 195, 201
(1986). In Salupo, it was held that the failure to plead particular facts that the defendant
wrongfully intruded upon the plaintiff’s private affairs was dispositive — in such a situation the
complaint fails to set forth a claim upon which relief could be granted and the case should be
dismissed. Id. at ¶ 23-24.
{¶11} In this case, Moran’s complaint merely alleges that Lewis attached a GPS tracking
device to two of Moran’s vehicles and such conduct was a per se violation of Moran’s privacy
because Ohioans should have an expectation of privacy while traveling on public roads. Such
an allegation is insufficient to state a claim for invasion of privacy under Ohio law. The failure
to plead facts, private or otherwise, establishing that the defendant wrongfully intruded into the
seclusion or private affairs of the plaintiff is fatal to the pleading. The mere act of monitoring
another’s public movements through the attachment of a GPS tracking device is not, in and of
itself, sufficient to state an invasion of privacy claim. As it stands under Ohio law, liability for
intrusion into another’s seclusion or private affairs does not exist where the defendant observes
or records a person in a public place. Salupo at ¶ 25, citing Pollock v. Rashid, 117 Ohio App. 3d
361, 369, 690 N.E.2d 903 (1st Dist.1996).
{¶12} The increased use of readily available technology has transformed an individual’s
expectations of privacy. We appreciate, and empathize with, Moran’s concerns. Nevertheless,
as an intermediate appellate court of law, we cannot change Ohio’s existing tort standard for
invasion of privacy. Although we are sensitive to individual privacy concerns, it is the role of
the Ohio legislature to expand the right to privacy to include a prohibition against tracking
devices as used in this case. See, e.g., Alaska Stat. 11.41.270(b)(4)(H) (prohibiting the use of
global positioning or other similar devices to monitor or track a person); Cal.Pen.Code 637.7
(prohibiting the use of electronic tracking devices to determine the location or movement of a
person); 720 ILCS 5/21-2.5(b) (prohibiting the use of an electronic tracking device to determine
another’s movement or locations). Moving Ohio to a per se standard, in the effort to advance
policy considerations, is beyond the role of this court. Under the existing tort law, Moran
needed to plead facts demonstrating the intrusion into his seclusion or private affairs along with
facts demonstrating mental suffering, shame, or humiliation. Housh, 165 Ohio St. 35, 133
N.E.2d 340.
{¶13} According to Moran, the GPS tracking devices in this case recorded his movements
on public roads and there were no allegations that the recording or dissemination of the
information intruded into Moran’s solitude, seclusion, or private affairs. The solitary claim that
the use of the GPS device was a per se invasion of privacy is overruled. The complaint fails to
set forth a claim for invasion of privacy under Ohio law, and the judgment on the pleadings in
favor of Lewis is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR