Godwin v. Facebook, Inc. , 2020 Ohio 4834 ( 2020 )

[Cite as Godwin v. Facebook, Inc., 2020-Ohio-4834.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
DEBBIE GODWIN, :
Plaintiff-Appellant, :
No. 109203
v. :
FACEBOOK, INC., ET AL.,
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 8, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-18-891841
Appearances:
Polk Kabat, L.L.P., Andrew A. Kabat, Shannon J. Polk,
Mark F. Humenik, and Daniel M. Connell; Weisman,
Kennedy & Berris Co., L.P.A., R. Eric Kennedy, and
Daniel P. Goetz, for appellant.
Thompson Hine, L.L.P., and Kip T. Bollin; Kirkland &
Ellis, L.L.P., Craig S. Primis, and K. Winn Allen, pro hac
vice, for appellees.
SEAN C. GALLAGHER, J.:
Debbie Godwin, as the executor of the estate of Robert Godwin, Sr.,
appeals the trial court’s judgment in which all claims against Facebook, Inc.,
Facebook Payments, Inc., Facebook Services, Inc., Atlas Solutions, L.L.C., and
CrowdTangle, Inc., were dismissed with prejudice. For the sake of clarity and
expediency, the appellees will be referred to collectively as Facebook unless
otherwise noted.
This case arises from disturbing facts as presented through a
sympathetic lens. The events underlying the current claims stem from the senseless
murder of Robert Godwin, Sr., on Easter weekend in 2017. By all accounts, Robert
Godwin was a good man devoted to his family and friends. On that fateful day,
Robert Godwin was simply enjoying a moment in a local park when accosted by a
complete stranger determined to murder anyone in a horrifyingly public manner.
Nevertheless, the claims before this court are not those leveled against the
perpetrator of the crime. Instead, the primary focus of this appeal is the purely legal
implications of the relationship between a social media conglomerate and its
customers, and whether the corporation can be liable for failing to intervene in one
of its customer’s criminal acts.
Robert Godwin, Sr., Godwin’s father, was murdered by Steve
Stephens — a video of the murder was briefly posted to Stephens’s social media
account, part of the social media network that is owned and managed by Facebook,
Inc. Stephens committed suicide two days later. Godwin filed a wrongful death
action against Stephens’s estate, all the while maintaining that the estate is merely a
“nominal defendant” in the action.1 In addition, Godwin included allegations
against Facebook for its alleged failure to warn Robert Godwin of Stephens’s
intention, of which Facebook should have been aware based on a statement
Stephens posted before the attack and based on Facebook’s in depth and financially
motivated use of its users’ information. On the day of the tragic events, Stephens
posted an ominous, but relatively ambiguous, statement on his social media
account. In that message, Stephens stated:
FB my life for the pass year has really been fuck up!!! lost everything
ever had due to gambling at the Cleveland Jack casino and Erie
casino...I not going to go into details but I’m at my breaking point I’m
really on some murder shit…FB you have 4 minutes to tell me why I
shouldn’t be on deathrow!!!! dead serious #teamdeathrow.2
“Minutes” later, Stephens randomly approached Robert Godwin, who was sitting in
a local park. Stephens pulled out a handgun and shot him after a brief dialogue.
Godwin asserted five causes of action against Facebook: (1) common
law negligence for failing to warn the police of Stephens’s threat; (2) civil recovery
for a criminal act in failing to report a terrorist threat made by Stephens; (3)
statutory negligence for failing to warn in violation of R.C. 2921.22; (4) wrongful
death; and (5) survivorship. There are two discrete veins of liability underlying
1Brief of Appellant, page 3. “‘[I]t may be said that a “nominal party” is one whose
presence in the action is either: (1) merely formal; or, (2) unnecessary for a just and proper
resolution of the claim(s) presented.’” State ex rel. Yeaples v. Gall, 141 Ohio St.3d 234,
2014-Ohio-4724, 23 N.E.3d 1077, ¶ 22, quoting Smith v. Inland Paperboard &
Packaging, Inc., 11th Dist. Portage No. 2007-P-0088, 2008-Ohio-6984, ¶ 41.
2 The passage is reproduced as it was presented in Godwin’s complaint.
Godwin’s claims — one relating to Stephens’s message published before the murder
and another relating to Facebook’s use of its users’ information.
In the complaint, Godwin alleged that her negligence claims “focuses
on Facebook’s own conduct in operating a separate and distinct business — a
business that focuses on the collection, analysis, use, exploitation and/or sale of
[users’] information” (hereinafter “data-mining practices”). (Emphasis added.)
Complaint at ¶ 2. According to Godwin, a duty was owed because of “[t]he Facebook
Defendants’ special business relationship with [their] users and the acquisition of
intimate knowledge/information relating to their activities, intentions, wishes,
desires and even their specific location.” (Emphasis added.) Id. at ¶ 7. However,
Godwin’s claims “do not require the Facebook Defendants to monitor, edit,
withdraw or block any content supplied by [their] users.” Id. at ¶ 8. Throughout the
complaint, it is alleged that Facebook utilizes its data-mining practices for financial
gain, and from those general allegations, Godwin concludes that Facebook owes a
duty to control its users’ conduct outside of their business-consumer relationship.
There are no factual allegations identifying anything specifically discovered as a
result of Facebook’s data-mining practices, except for the fact that Stephens owned
and used firearms — although there are no allegations that Stephens’s possession or
use of those firearms was illegal or otherwise unsafe. Godwin nevertheless opines
that Stephens’s ownership and use of firearms was “suggestive of his violent
tendencies.”
In the third count of the complaint, Godwin alleges that Facebook
“failed to take any steps to warn or protect those threatened by Mr. Stephens’ stated
intention to do some ‘murder shit’ by alerting law enforcement authorities” and such
an act was in contravention of the duty established in R.C. 2921.22 “to warn the
general public about Mr. Stephens’ commission of a felony.” Id. at ¶ 102-103. R.C.
2307.60 creates a statutory cause of action for those injured by criminal acts in Ohio
to seek compensation for damages from the perpetrator of the criminal act. Godwin
alleges that Facebook’s failure to report the “making terroristic threat” crime,
committed by Stephens through the posting of the statement, was in violation of
R.C. 2921.22, and therefore, Facebook could be held liable for their inaction under
R.C. 2307.60. Although Godwin framed the claim as two separate negligence and
statutory claims, the negligence claim advanced in count three is merely duplicative
of the civil-recovery statutory claim advanced in count two and shall be treated as a
single claim.
Accordingly, there are two claims or theories of liability advanced in
the complaint against Facebook: (1) the common law negligence claim, based on the
failure to warn Robert Godwin of Stephens’s dangerous propensity of which
Facebook was aware through its data-mining practices, which is the underlying
negligence theory upon which the wrongful death and survivorship claims arise and
(2) the civil-right-of-recovery claim based on R.C. 2921.22 and 2307.60 stemming
from Stephens’s message posted to his social network page “minutes” before Robert
Godwin’s tragic and senseless murder.
The trial court concluded that Godwin failed to state any claim upon
which relief could be granted under Civ.R. 12(B)(6). After dismissing the allegations
against Facebook, the trial court quashed a subpoena Godwin issued to Facebook
seeking the contents of Stephens’s social-media account; the subpoena was issued
after Facebook had been dismissed from the case and was no longer a party to the
action as contemplated under Civ.R. 45. That subpoena was in furtherance of the
pending claims against Stephens’s estate. In this appeal, Godwin also challenges the
trial court’s interlocutory decision to quash the subpoena.
We sua sponte ordered the parties to brief the following issues:
whether this court has jurisdiction to review: (1) The order granting the
motion to quash filed by the appellees (see In re Grand Jury
Proceeding of Doe, 150 Ohio St.3d 398, 2016-Ohio-8001, 82 N.E.3d
1115; Hanick v. Ferrara, 7th Dist. Mahoning No. 18 MA 0073, 2019-
Ohio-880, ¶ 25; In re Estate of Adkins, 4th Dist. Lawrence No. 16CA22,
2016-Ohio-5602; In re Tracy M., 6th Dist. Huron No. H-04-028,
2004-Ohio-5756); and (2) the order granting the appellees’ motion to
dismiss (see Rae-Ann Suburban, Inc. v. Wolfe, 8th Dist. Cuyahoga No.
107536, 2019-Ohio-1451).
Generally speaking, the granting of a motion to quash a subpoena is not considered
a final appealable order. See, e.g., Ferrara. In addition, in Wolfe, the panel
concluded that a “partial final order is not appealable pursuant to Civ.R. 54(B) if
pending unresolved claims ‘touch upon the very same facts, legal issues and
circumstances’ as the resolved claims. Wolfe at ¶ 16, quoting Altenheim v.
Januszewski, 8th Dist. Cuyahoga No. 105860, 2018-Ohio-1395, ¶ 3-7, 10-13.
Facebook and Godwin agreed that Wolfe was distinguishable, based
on the fact that Facebook’s alleged nonfeasance was independent of and unrelated
to the underlying action against Stephens who committed the murder, and
therefore, the order granting the motion to dismiss was final and appealable under
R.C. 2505.02 and Civ.R. 54(B). We agree with the parties’ assessment. Alexander
v. Buckeye Pipe Line Co., 49 Ohio St.2d 158, 160, 359 N.E.2d 702 (1977); Noble v.
Colwell, 44 Ohio St.3d 92, 540 N.E.2d 1381 (1989), syllabus; see generally Doolin
v. Old River Yacht Club L.P., 8th Dist. Cuyahoga No. 87653, 2006-Ohio-5922.
Godwin’s allegations against Facebook are wholly independent of her claims against
the nominal defendant who is alleged to have committed murder. Wolfe is not
applicable, and neither party otherwise challenges our jurisdiction to review the
judgment of dismissal. App.R. 16(A)(7).
With respect to the motion to quash, however, the parties disagree. A
motion to quash a discovery subpoena is generally considered “a proceeding
ancillary to an action” and therefore a provisional remedy pursuant to R.C.
2505.02(A)(3). In re Grand Jury Proceeding of Doe, at ¶ 19. Thus, in order to
determine whether such a provisional remedy qualifies as a final order pursuant to
R.C. 2505.02(B)(4), the party appealing must demonstrate both that
(a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in favor of
the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or
effective remedy by an appeal following final judgment as to all
proceedings, issues, claims, and parties in the action.
In support of our jurisdiction over the discovery dispute, Godwin claims the
granting of a motion to quash is final under R.C. 2505.02 based on Future
Communications, Inc. v. Hightower, 10th Dist. Franklin No. 01AP-1175, 2002-
Ohio-2245, in which it was concluded that the denial of a motion to quash a
discovery subpoena could be considered final and appealable. The denial of a
motion to quash requires a nonparty to produce documents, an act that cannot be
remedied at the conclusion of the case after the documents have been produced. Id.For this reason, the denial of a motion to quash is generally considered a final
appealable order because the appealing party lacks any meaningful remedy
following the final judgment as contemplated under R.C. 2505.02(B)(4). Id. The
granting of a motion to quash does not implicate the same concerns. Ferrara at
¶ 25; McCarthy v. Anderson, 5th Dist. Licking No. 17 CA 36, 2018-Ohio-1993, ¶ 19;
In re Estate of Adkins at ¶ 9; In re Tracy M. at ¶ 29.
In light of the fact that the motion to quash was granted, the
interlocutory order does not determine the action and prevent a judgment in the
action in favor of Godwin with respect to the discovery issue — any discovery-related
issues with respect to Godwin’s claims against Stephens’s estate, such as those
presented by the discovery subpoena issued to Facebook as a nonparty, can be
resolved in a direct appeal following the conclusion of the case. As a result, we lack
jurisdiction to consider the trial court’s interlocutory order granting Facebook’s
motion to quash a subpoena. The only issue ripe for our review is whether the trial
court erred in dismissing the cause against Facebook under Civ.R. 12(B)(6).
“‘A motion to dismiss for failure to state a claim upon which relief can
be granted is procedural and tests the sufficiency of the complaint.’” State ex rel.
Belle Tire Distribs. v. Indus. Comm. of Ohio, 2018-Ohio-2122, 154 Ohio St.3d 488,
116 N.E.3d 102, ¶ 17, quoting State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs.,
65 Ohio St.3d 545, 548, 1992-Ohio-73, 605 N.E.2d 378. A court may grant a Civ.R.
12(B)(6) motion to dismiss “only when the complaint, when construed in the light
most favorable to the plaintiff and presuming all the factual allegations in the
complaint are true, demonstrates that the plaintiff can prove no set of facts entitling
him to relief.” Id., citing Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532
N.E.2d 753 (1988). A trial court’s decision to grant a Civ.R. 12(B)(6) motion to
dismiss is reviewed de novo. LGR Realty, Inc. v. Frank & London Ins. Agency, 152
Ohio St.3d 517, 2018-Ohio-334, 98 N.E.3d 241, ¶ 10. In a de novo review, we must
independently review the record and afford no deference to the trial court’s decision.
Moncrief v. Bohn, 2014-Ohio-837, 9 N.E.3d 508, ¶ 4 (8th Dist.).
“Under Ohio’s liberal pleading rules, all that is required of a plaintiff
bringing suit is ‘(1) a short and plain statement of the claim showing that the party
is entitled to relief, and (2) a demand for judgment for the relief to which the party
claims to be entitled.’” Hammon v. Huntington Natl. Bank, 2018-Ohio-87, 102
N.E.3d 1248, ¶ 59 (8th Dist.), quoting York v. Ohio State Highway Patrol, 60 Ohio
St.3d 143, 144-145, 573 N.E.2d 1063 (1991). “However, even under Ohio’s notice-
pleading standard, a cause of action must be factually supported and courts need
not accept bare assertions of legal conclusions.” Enduring Wellness, L.L.C. v.
Roizen, 8th Dist. Cuyahoga No. 108681, 2020-Ohio-3180, ¶ 24, citing Tuleta v. Med.
Mut. of Ohio, 2014-Ohio-396, 6 N.E.3d 106, ¶ 28 (8th Dist.), and Harper v.
Weltman, Weinberg & Reis Co., L.P.A., 8th Dist. Cuyahoga No. 107439, 2019-Ohio-
3093, ¶ 33. To the contrary, unsupported legal conclusions are not accepted as true
for purposes of a motion to dismiss. Mitchell, citing Schulman v. Cleveland, 30 Ohio
St.2d 196, 198, 283 N.E. 2d 175 (1972).
As briefly discussed, Godwin asserted five causes of action against
Facebook: (1) common law negligence for failing to warn of Stephens’s propensity
for violence of which Facebook was aware based on its data-mining practices; (2)
civil recovery for a criminal act in failing to report a terrorist threat made by
Stephens; (3) statutory negligence for failing to warn the public of Stephens’s
published threat in violation of R.C. 2921.22; (4) wrongful death; and (5)
survivorship. As stated, those five claims can be separated into two discrete veins of
liability that will be separately addressed: the negligence claims and the statutory
right-to-recovery claims.
In order to “‘maintain a wrongful death action on a theory of
negligence, a plaintiff must show (1) the existence of a duty owing to plaintiff's
decedent, (2) a breach of that duty, and (3) proximate causation between the breach
of duty and the death.’” Estate of Ridley v. Hamilton Cty. Bd. of Mental Retardation
& Dev. Disabilities, 102 Ohio St.3d 230, 2004-Ohio-2629, 809 N.E.2d 2, ¶ 14,
quoting Littleton v. Good Samaritan Hosp. & Health Ctr., 39 Ohio St.3d 86, 92, 529
N.E.2d 449 (1988). Thus, Godwin’s negligence claims all fall under the same
umbrella — each of the alleged tort claims require Godwin to demonstrate that a
duty was owed to prevent Stephens from causing injury to another person under
Ohio law.
It is well settled that there is no duty to control the conduct of a third
person to prevent the commission of physical harm to another person “unless (a) a
special relation exists between the actor and the third person which imposes a duty
upon the actor to control the third person’s conduct, or (b) a special relationship
exists between the actor and the other which gives to the other the right to
protection.” Hite v. Brown, 100 Ohio App.3d 606, 613, 654 N.E.2d 452 (8th
Dist.1995), citing Gelbman v. Second Natl. Bank of Warren, 9 Ohio St.3d 77, 79,
458 N.E.2d 1262, 1263 (1984) (Gelbman adopted the Restatement of the Law 2d,
Torts, 122, Section 315 (1965)), and Fed. Steel & Wire Corp. v. Ruhlin Constr. Co.,
45 Ohio St.3d 171, 173, 543 N.E.2d 769, 772 (1989), fn. 1.
Before discussing the legal framework under which Godwin’s claims
must be analyzed, it is important to note that the authority upon which Godwin
relies is largely inapplicable. There appears to be some confusion as to the nature of
the “special relations” Godwin claims to exist for the purposes of stating a claim for
relief against Facebook.
According to Godwin, the complaint is well pleaded because Ohio law
recognizes a special relationship as between a business owner and invitee (Simpson
v. Big Bear Stores Co., 73 Ohio St.3d 130, 135, 652 N.E.2d 702 (1995)), a common
carrier and its passengers, an innkeeper and its guests, a possessor of land and an
invitee, a custodian and individual taken into her custody, and an employer and her
employee (Jackson v. Forest City Ents., Inc., 111 Ohio App.3d 283, 285, 675 N.E.2d
1356 (8th Dist.1996), citing Restatement of the Law 2d, Torts 122, Section 314A.)
Godwin seeks to extend those relationships to a social media company and its users.
The unifying theme from those theories of liability, however, is that a duty to protect
exists as between the tortfeasor and the injured party. Restatement of the Law 2d,
Torts 122, Section 314A, Section 315(b). That line of reasoning is not implicated by
Godwin’s allegations, in which it is claimed that Facebook is alleged to have a special
relationship with Stephens that imposes a duty upon Facebook to control Stephens’s
conduct to prevent harm to another (in this case Robert Godwin). There are no
allegations in the complaint that Facebook shared a special relation with Robert
Godwin for the purpose of establishing a duty of protection that would implicate the
second exception as set forth in the Restatements Section 315 — the duty to protect
the injured person. See, e.g., Simpson (although a business owner owes a duty to
protect business invitees from criminal acts it knows or should have known of the
substantial risk presented under Restatement of the Law 2d, Torts 122, Section 315,
that duty does not extend off the business owner’s premises); accord Fletcher v.
Maryland Transit Administration, 741 Fed.Appx. 146, 151 (4th Cir.2018) (school
system is not “in charge” of its students after hours and off the school grounds for
the purposes of nonfeasance liability).
In addition, Godwin’s theory primarily relies on the presumption that
a duty should be imposed because Facebook possessed the ability to control
Stephens’s conduct through its expansive insight into users’ thought processes
gained through Facebook’s data-mining practices. According to the drafters of the
Restatement of the Law 2d, Torts 122, Section 315 (1965), as adopted in Gelbman, 9
Ohio St.3d 77, 79, 458 N.E.2d 1262 (1984), however, there is generally no duty to
control the conduct of a third person to prevent harm to another even though “the
actor realizes that he has the ability to control the conduct of a third person, and
could do so with only the most trivial of efforts and without any inconvenience to
himself.” Restatement of the Law 2d, Torts 122, Section 315, Comment b; Estates of
Morgan v. Fairfield Family Counseling Ctr., 77 Ohio St.3d 284, 300, 1997-Ohio-
194, 673 N.E.2d 1311, fn. 5. Godwin’s reliance on Facebook’s ability to control its
users’ conduct does not give rise to a duty to control them as contemplated under
Ohio law.
With the limitations on Godwin’s arguments in mind, the threshold
issue — in cases seeking to impose liability for an actor’s failure to prevent harm to
another that is caused by a third person — is, whether the actor has a special
relationship with the third party that gives rise to a duty to control that third person’s
conduct. There are few recognized instances in which an actor has the requisite
relationship with a third person as to give rise to a duty to control that person’s
conduct. “Sections 316 to 319 [of Restatement of the Law 2d, Torts 122] set forth
the [special] relations between the actor (the alleged tortfeasor) and the third person
which require the actor to control the third person’s conduct” for the purpose of
preventing harm to another. Estates of Morgan at 294. The threshold inquiry is
whether the complaint alleges sufficient operative facts to establish the existence of
the “special relations” as defined in the Restatement of Torts. The traditional
Restatement analysis is the tort-law road map in Ohio.
In Estates of Morgan, for example, the Ohio Supreme Court faced the
question of expanding the exception to the “no duty to act” rule to a psychiatrist-
outpatient relationship. Id. Before that case arose, it had been concluded that the
psychiatrist-patient relationship is a “special relation” based on the psychiatrist
taking “charge” of the patient in the hospital setting. Littleton v. Good Samaritan
Hosp. & Health Ctr., 39 Ohio St.3d 86, 92, 529 N.E.2d 449 (1988) (“Even though
Theresa was a voluntary patient, we find that Dr. Murray had sufficient charge of
Theresa in the hospital setting such that a special relation was established.”).
Littleton relied on the traditional Restatement analysis to arrive at its conclusion.
Under Section 319 of the Restatement of Torts, a “special relation” exists “when one
takes charge of a person whom he knows or should know is likely to cause bodily
harm to others if not controlled.” Id. Estates of Morgan expanded that precedent
to include a psychiatrist-outpatient relationship along with the traditional hospital
setting, presuming the psychiatrist had “taken charge” of her patient in the
outpatient setting. Id.Importantly, however, although given the opportunity to expand
Ohio tort law to include its own common law test to determining whether the
requisite “special relation” exists, the Ohio Supreme Court instead adhered to the
analysis set forth in the Restatement of Torts. Id. As the Ohio Supreme Court
recognized, courts need not avoid the “traditional Restatement analysis” when
expanding the scope of the exceptions to the no-duty-to-act rule. Id. at 294. “Most
courts” actually engage in the traditional Restatement analysis to reach those ends,
but through an expansive reading of the applicable provision. Id. at 296. Ohio
continues to follow that the trend. See also Carter v. Reese, 148 Ohio St.3d 226,
2016-Ohio-5569, 70 N.E.3d 478, ¶ 18.
Under the traditional Restatement analysis, there are five recognized
“special relations” that justify imposition of liability for nonfeasance. A parent owes
a duty to control the conduct of his or her child (Section 316); a master owes a duty
to control the conduct of his or her servant (Section 317); the possessor of land or
chattels owes a duty to control the conduct of a licensee (Section 318); an actor in
charge of a person with dangerous propensities owes a duty to control such a person
(Section 319); and an actor having legal custody of another owes a duty to control
the other’s conduct (Section 320). Restatement of the Law 2d, Torts 122, Sections
316-320. “In the absence of a special relationship sufficient to trigger one of these
exceptions, a private party is not liable for failing, either intentionally or
inadvertently, to exercise control over the actions of a third party so as to protect
others from harm.” McCloskey v. Mueller, 446 F.3d 262, 268 (1st Cir.2006).
In this appeal, Godwin claims that Facebook has taken charge of a
person who it knew or should have known was likely to harm to others if not
controlled. The primary focus of the complaint, however, is setting forth allegations
that Facebook maintains the ability to control Stephens and possessed knowledge of
Stephens’s propensity for violence gained through its data-mining practices — both
of which we accept as true for the purposes of the Civ.R. 12(B)(6) review standard.
To this end, Godwin has alleged that Facebook’s data-mining practices should have
revealed Stephens’s propensity to commit murder and that Facebook had the
capabilities to exert control over Stephens outside the social-media network by
calling authorities. Godwin, however, has not alleged operative facts that could
establish Facebook to have been “in charge” of Stephens as contemplated under the
Restatement of the Law 2d, Torts 122 Section 319. See id. at Section 319,
illustrations 1-2. Control is not the defining characteristic. Restatement of the Law
2d, Torts 122, Section 315, Comment b.
In this case, there are no allegations supporting a theory that
Facebook voluntarily or involuntarily took charge of Stephens such that the duty to
wield its control over Stephens arose. This type of taking-charge relationship is
exemplified by the physician-patient or psychiatrist-patient relationship, which
“arises from an express or implied contract between the physician and patient and
imposes on the physician a fiduciary duty to exercise good faith” in treating the
patient. Cromer v. Children’s Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257, 2015-
Ohio-229, 29 N.E.3d 921, ¶ 25, citing Lownsbury v. VanBuren, 94 Ohio St.3d 231,
235, 2002-Ohio-646, 762 N.E.2d 354. Similarly, other states have relied on Section
319 in imposing liability for the nonfeasance of a parole or probation officer who
took charge of a released offender. Saint-Guillen v. United States, 657 F.Supp.2d
376, 384 (E.D.N.Y.2009) (string citing state supreme court decisions). In reviewing
whether one “takes charge” of another, courts typically review the degree of
oversight between the actor and the third person. For example, in Small v.
McKennan Hosp., 403 N.W.2d 410, 414 (S.D.1987), it was concluded that a
probation officer had not “taken charge” of the probationer for the purpose of
imposing liability for nonfeasance because the probationer was “allowed to live” on
his own and was independently employed — demonstrating the probationer’s
independence from the probation officer. Id.; see also K.R. v. Visionquest Natl.,
Ltd., E.D.Pa. No. 17-4689, 2018 U.S. Dist. LEXIS 73846, at 6 (Apr. 25, 2018)
(juvenile detention facility housing residents with history of sexual victimization was
sufficiently “in charge” of the third party for the purpose of demonstrating the
existence of a “special relation” and imposing liability for nonfeasance).
At the minimum the duty to act in this case requires an existing
relationship between the defendant and the third person over whom “charge” is
asserted. Godwin has not cited any authority for the proposition that a social media
company “takes charge” of its users to the same extent that a medical or mental
health professional takes charge of her patient or a parole or probation officer takes
charge of her probationer for the purposes of expanding the theory of liability.
Although the line between a contractual, business-consumer relationship and a
physician-patient relationship may at one point overlap, this case does not present
such a question. The complaint is devoid of any allegations of fact that, if proven,
would establish the requisite element of Facebook taking “charge” of its users. See,
e.g., Dyroff v. Ultimate Software Group, Inc., 934 F.3d 1093, 1101 (9th Cir.2019)
(failure to warn claim correctly dismissed in light of the lack of a special relationship
between the social media site and the user); Klayman v. Zuckerberg, 753 F.3d 1354(D.C. Cir.2014) (“simply invoking the label ‘special relationship’” does not transform
an action into a tort action.); see also Assur. Co. of Am. v. York Internatl., Inc., 305
Fed.Appx. 916, 926 (4th Cir.2009) (a contractual agreement as between two parties
is not an identified “special relation” for the purposes of imposing liability upon
nonfeasance).
In the alternative, Godwin asks this court to declare that a social
media business shares a special relationship with its customers because the “no duty
to act” rule is “revolting to any moral sense” and is “inherently unfair.” In this
respect, Godwin maintains that common law foreseeability analysis would result in
the imposition of a duty upon which Facebook could be deemed liable. This line of
argument is without merit. “Foreseeability alone does not create a duty; instead, it
is one of a number of factors that must be considered.” Estates of Morgan, 77 Ohio
St.3d at 293, 1997-Ohio-194, 673 N.E.2d 1311; Santana v. Rainbow Cleaners, Inc.,
969 A.2d 653, 666 (R.I.2009), citing Ferreira v. Strack, 636 A.2d 682, 688 n. 4
(R.I.1994). If one has no duty to act based on the absence of a special relation with
the third person, the foreseeability of the resulting harm is irrelevant — there is no
duty to act as a matter of law. See, e.g., Armstrong v. Best Buy Co., Inc., 99 Ohio
St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 5 (the open-and-obvious doctrine
obviates the duty to act despite the foreseeability of the harm); Simpson, 73 Ohio
St.3d at 134, 1995-Ohio-203, 652 N.E.2d 702.
Pursuant to Civ.R. 12(B)(6), Godwin has not stated a negligence claim
upon which relief could be granted in order to impose liability for Facebook’s alleged
nonfeasance. None of Godwin’s allegations demonstrate the possibility of proving
the existence of a special relationship, as contemplated under Ohio tort law and as
required to establish the existence of a duty.3 Further, Godwin’s request to seek
discovery to prove the existence of the special relation is to no avail. Discovery
cannot be used to prove that which has not been alleged in the complaint. The trial
court did not err in dismissing the negligence claims.
And finally, the trial court did not err in dismissing the statutory claim
for damages stemming from a criminal act. Under R.C. 2307.60(A), “[a]nyone
injured in person or property by a criminal act has, and may recover full damages
in, a civil action unless specifically excepted by law * * *.”4 Godwin claims that
Facebook committed the misdemeanor crime, under R.C. 2921.22, of failing to
report another’s commission of a felony, and is therefore liable for the damages
caused to Robert Godwin under R.C. 2307.60 because it is alleged that immediately
reporting the crime would have allowed authorities to prevent the murder.
According to Godwin, Stephens’s posted content on the day of the murder,
3 Facebook also asserted immunity as a defense under the Communications
Decency Act of 1996, 47 U.S.C. 230. In light of our conclusion that Godwin has failed to
state a claim for relief under Ohio law, we need not resolve the federal question.
4 The “unless specifically excepted by law” arguably implicates the statutory
immunity conferred through the Communications Decency Act, 47 U.S.C. 230(c) in light
of Godwin’s reliance on the user-generated content to substantiate her claim. Once again,
we need not consider the immunity argument in light of the outcome under state law
analysis.
FB my life for the pass year has really been fuck up!!! lost everything
ever had due to gambling at the Cleveland Jack casino and Erie
casino...I not going to go into details but I’m at my breaking point I’m
really on some murder shit…FB you have 4 minutes to tell me why I
shouldn’t be on deathrow!!!! dead serious #teamdeathrow
constituted a per se “terroristic threat” under Ohio law.
In order for Godwin to have stated a claim based on R.C. 2307.60
against Facebook, there must be allegations that Stephens’s post violated the
“making terroristic threat” statute — without allegations in support of the existence
of a crime, there was nothing for Facebook to report. R.C. 2909.23, entitled “making
terroristic threat” provides that “[n]o person shall threaten to commit or threaten to
cause to be committed a specified offense when * * * [t]he person makes the threat
with purpose to * * * [i]ntimidate or coerce a civilian population” and “as a result of
the threat, the person causes a reasonable expectation or fear of the imminent
commission of the specified offense.” “Specified offense” is defined, in pertinent
part, as a felony offense of violence, such as murder, or a violation of R.C. 2909.23
(“making terroristic threat”). R.C. 2909.21(M).
Godwin’s allegations with respect to the statutory claim are limited to
the conclusions that (1) the “Facebook Defendants were aware of statements made
by Mr. Stephens which constituted threats that were made with the intent to
intimidate or coerce a civilian population”; (2) “Mr. Stephens’ threats caused a
reasonable expectation of the imminent commission of making terroristic threats”;
and (3) the “Facebook Defendants were aware that Mr. Stephens was engaged in the
commission of a felony.” The single factual allegation related to Stephens’s
statement was that “Steve Stephens, had engaged in criminal conduct by making
intimidating and coercive threats of violence.”
Those allegations are insufficient to state a prima facie claim upon
which relief can be granted. “Under Ohio’s notice-pleading standard, a cause of
action must be factually supported and courts need not accept bare assertions of
legal conclusions.” Roizen, 8th Dist. Cuyahoga No. 108681, 2020-Ohio-3180, at
¶ 23-24, citing Tuleta, 2014-Ohio-396, 6 N.E.3d 106, at ¶ 28 (8th Dist.), and Harper,
8th Dist. Cuyahoga No. 107439, 2019-Ohio-3093, at ¶ 33. Unsupported legal
conclusions are not accepted as true for purposes of a motion to dismiss. Mitchell,
40 Ohio St.3d at 193, 532 N.E.2d 753, citing Schulman, 30 Ohio St.2d at 198, 283
N.E.2d 175.
Godwin is solely relying on Stephens’s statement to demonstrate that
a “making terroristic threat” crime was committed against the civilian population,
but there are no factual allegations demonstrating that Stephens intended to
intimidate the civilian population and as a result of that attempt to intimidate, the
civilian population had a reasonable expectation of fear that Stephens would commit
a “specified offense.” The sole allegation in the complaint related to the “reasonable
expectation” element of the “making terroristic threat” crime is that “Mr. Stephens’
threats caused a reasonable expectation of the imminent commission of making
terroristic threats.” (Emphasis added.) As circular as it sounds, under R.C.
2909.21(M), “making terroristic threats” under R.C. 2909.23 is considered a
“specified offense” under amendments to the statute that became effective April 13,
2006 — a legal impossibility since the “making terroristic threat” crime cannot be
proven without the commission of the specified offense, which can never occur if the
crime itself is the predicate offense.
Nevertheless, Godwin continually alludes to the fact that the basis of
the “making terroristic threat” crime is Stephens’s intent “to do some murder shit”
— a proposition that is not at all self-evident from the actual phrasing of Stephens’s
statement, but when considered in the context of Godwin’s allegations, the threat to
commit murder, at a minimum, constitutes a “specified offense.” However, there
are no factual allegations, or even legal conclusions for that matter, that the civilian
population had a reasonable expectation that Stephens intended to commit murder
before Stephens committed the heinous act. In this appeal, Godwin asks for that to
be assumed because “certainly, someone intending to do some random ‘murder shit’
is likely to cause fear in a reasonable person’s mind.” Supposition as to what could
occur is not sufficient. In general, the reasonableness of fear stemming from a threat
of violence is a fact-intensive inquiry. J.D. v. G.D., 9th Dist. Medina No. 18CA0050-
M, 2019-Ohio-4391, ¶ 14, quoting J.K. v. M.K., 9th Dist. Medina No. 13CA0085-M,
2015-Ohio-434, ¶ 11. In light of this, there must be allegations of operative fact that
the person making a threat upon a civilian population caused “a reasonable
expectation or fear of the imminent commission of the specified offense.” An
isolated comment “to do some murder shit,” without context, is insufficient to satisfy
the well-pleaded complaint rule.
There are no allegations that Stephens had a criminal history known
to the public, that he was a known terrorist who committed terrorist acts in the past,
that any particular civilian in the Cleveland area even saw the post before the murder
occurred, or that any person reasonably believed Stephens would imminently
commit murder, nor is there any other factual allegation upon which it could be
concluded that the message could reasonably cause the public to fear the imminent
commission of a “specified offense.” Further, any allegations of Stephens’s conduct
after the murder, which understandably would have given the public cause to
reasonably fear Stephens’s threats, are irrelevant to the claim that Facebook violated
an obligation to report the terroristic threats to prevent the murder of Robert
Godwin. If the “making terroristic threat” crime did not arise until after the murder,
in other words, the public feared future random murders would occur after the
commission of the first one, then Facebook’s failure to report that crime could not,
as a matter of law, be the cause of injury to Godwin — reporting the after-the-fact
crime would not have prevented the injury to Godwin.
In order to satisfy the well-pleaded complaint rule, the plaintiff must
include allegations of operative facts that satisfy the elements of each claim. Bare
assertions of legal conclusions are insufficient to withstand a motion to dismiss
under Civ.R. 12(B)(6). In the absence of any allegations that Stephens’s threat (even
if one considers his mentioning of “being on some murder shit” as a threat to commit
murder) caused a reasonable fear of the imminent commission of murder, Godwin
has failed to state a claim upon which relief can be granted. Taking every allegation
in the complaint as true, Godwin has not presented a well-pleaded complaint upon
which it could be concluded that Stephens’s post constituted a “making terroristic
threat” crime, as defined by Ohio law, prior to the murder. Gibbs v. Burley, 10th
Dist. Franklin No. 19AP-141, 2020-Ohio-38, ¶ 16, quoting Mitchell, 40 Ohio St.3d at
193, 532 N.E.2d 753 (a well-pleaded complaint “must include factual allegations
going to each element of the claim, and conclusory statements without any factual
allegations in support are insufficient). Accordingly, there is no set of facts upon
which it could be concluded that Facebook did not fail to report the commission of
a felony offense, in order to prevent the crime from occurring, for which civil liability
could be imposed under R.C. 2307.60 for the injuries caused to Robert Godwin. The
trial court’s decision to dismiss the statutory claims was not in error.
We affirm.
It is ordered that appellees 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. CONCURS;
PATRICIA ANN BLACKMON, J., CONCURS WITH SEPARATE OPINION
PATRICIA ANN BLACKMON, J., CONCURRING WITH SEPARATE OPINION:
I concur with the majority opinion and write separately to express my
concern over the lack of developing law governing the relationship social media
companies have with their users and the general public; the scope of duty social
media companies may, or may not, owe to their users; and whether public safety
outweighs a company’s bottom line. First, it appears to me that there is a duty.
Going back to Justice Cardozo’s well-known decision in Palsgraf v. Long Island R.
Co., 248 N.Y. 339, 162 N.E.99 (May 29, 1928), the issue of duty is central to the
evolution of modern tort law. “The risk reasonable to be perceived defines the duty
to be obeyed, and risk imports relation; it is risk to another or to others within the
range of apprehension.” Id. at 343.
The law of torts is elastic, and the concept of “duty,” as related to
liability in torts, expanded as society advanced. For example, in Paugh v. Hanks, 6
Ohio St.3d 72, 451 N.E.2d 759 (1983), the Ohio Supreme Court recognized for the
first time negligent infliction of serious emotional distress as a viable cause of action.
While some may view our decision today as an unsettling quantum leap
into this difficult area of the law, the situation is one of paramount
necessity in fitting the law to the dynamics and nuances of modern
twentieth century society. We view our decision today as a bold and
promising step in ensuring an individual’s right to emotional
tranquility which is redressable in an action against a blameworthy
defendant for the negligent infliction of serious emotional distress.
Id. at 74. See also Dillon v. Legg, 68 Cal.2d 728, 747, 441 P.2d 912 (Cal. 1968) (one
who observes the accident of a loved one is “granted recovery because she was in the
‘zone of danger’ * * *”); Greenman v. Yuba Power Prods., Inc., 377 P.2d 897 (Cal.
1963) (establishing strict liability for dangerously defective products); Yates v.
Mansfield Bd. of Edn., 102 Ohio St.3d 205, 2004-Ohio-2491, 808 N.E.2d 861(noting that R.C. 2151.421 imposes a mandatory duty to report suspected child abuse
on those with special relationships with children); Randi W. v. Muroc Joint Unified
School Dist., 14 Cal.4th 1066, 1081, 929 P.2d 582 (Cal.1997) (“the writer of a letter
of recommendation owes to third persons a duty not to misrepresent the facts * * *
if making these misrepresentations would present a substantial, foreseeable risk of
physical injury to the third persons”).
Traditionally, a duty of care did not include a duty to protect third
parties. See generally, Hill v. Sonitrol of Southwestern Ohio, 36 Ohio St.3d 36, 521
N.E.2d 780 (1988). However, looking through the lens of foreseeability, if the
defendant has a “special relationship” with either the bad actor or the person in
danger, a legal duty may arise. See Simpson v. Big Bear Stores Co., 73 Ohio St.3d
130, 652 N.E.2d 702 (1995).
“[O]ne of the single most celebrated cases in the recent history of
American tort law” is Tarasoff v. Regents of Univ. of California, 17 Cal.3d 425, 439,
551 P.2d 334 (1976). Peter F. Lake, Article: Revisiting Tarasoff, 58 Alb.L.Rev. 97,
97 (1994). Tarasoff recognized the special relationship between a psychotherapist
and his or her patient, and established a duty on psychotherapists to protect
potential victims from dangerous patients. “Once a therapist does in fact determine,
or under applicable professional standards reasonably should have determined, that
a patient poses a serious danger of violence to others, he bears a duty to exercise
reasonable care to protect the foreseeable victim of that danger.” Tarasoff at 439.
Public policy and public opinion shape the concept of what
constitutes a special relationship in terms of imposing a legal duty.
Accordingly, there is no more magic inherent in the conclusory term
“special relation” than there is in the term “duty.” Both are part and
parcel of the same inquiry into whether and how the law should
regulate the activities and dealings that people have with each other. As
society changes, as our sciences develop and our activities become
more interdependent, so our relations to one another change, and the
law must adjust accordingly. “Duty” is not a rigid formalistic concept
forever embedded in the standards of a simplistic yesteryear. Relations
perhaps regarded as tenuous in a bygone era may now be of such
importance in our modern complicated society as to require certain
assurances that risks associated therewith be contained. These
principles do not shed their inherent flexibility when applied in the
context of a defendant’s duty to control the violent conduct of a third
person.
Estates of Morgan v. Fairfield Family Counseling Ctr., 77 Ohio St.3d 284, 298, 673
N.E.2d 1311 (1997). See also Prosser & Keeton, Law of Torts, Section 55, 357-358
(5th Ed., 1984) (‘“duty’ is not sacrosanct in itself, but only an expression of the sum
total of those considerations of policy which lead the law to say that the particular
plaintiff is entitled to protection”); D. Prosser, Palsgraf Revisited, 52 Mich.L.Rev. 1,
15 (1953) (“These are shifting sands, and no fit foundation. There is a duty if the
court says there is a duty; the law, like the Constitution, is what we make it”).
The Ohio Supreme Court has held that “[s]uch a ‘special relation’
exists when one takes charge of a person whom he knows or should know is likely to
cause bodily harm to others if not controlled.” Littleton v. Good Samaritan Hosp.
& Health Ctr., 39 Ohio St.3d 86, 92, 529 N.E.2d 449 (1988). Turning to the case at
hand, the extent to which social media companies “take charge” of their users is
unknown at this time. However, as the oft-quoted saying goes, “negligence is in the
air.” See Dipayan Ghosh and Ben Scott, Facebook’s New Controversy Shows How
Easily Online Political Ads Can Manipulate You, Time Magazine (Mar. 19, 2018)
https://time.com/5197255/facebook-cambridge-analytica-donald-trump-ads-
data/ (accessed Sept. 24, 2020) (“The real story is about how personal data from
social media is being used by companies to manipulate voters and distort democratic
discourse”); Robert Creamer, Massive Facebook influence on public opinion makes
its ad policy a serious election threat, USA Today (Jan. 22, 2020) https://www.
usatoday.com/story/case/p2020/01/22/facebook-political-ads-policy-danger-
ous-for-democracy-column/4529880002/ (accessed Sept. 24, 2020) (Facebook
“has massive monopoly power to influence public opinion”).
In fact, social media is becoming so influential that being a social
media influencer is now a profession. See Jianming Jyu v. Ruhn Holdings Ltd., N.
Y. S.Ct., N. Y. Cty. No. 655420/2019, 2020 N. Y. Misc. LEXIS 2250 (Apr. 22, 2020)
(defining “social media influencers” as “individuals who create content on social
media platforms such as Facebook, YouTube, Tik Tok, and Instagram with the hope
of garnering a large public following [and] who are paid to promote, market, and
advertise products and services to their fans and followers”). Recently, Mark
Zuckerberg, who is Facebook’s CEO, admitted that “Facebook made a mistake in not
removing a militia group’s page earlier this week that called for armed civilians to
enter Kenosha, Wisconsin, amid violent protests after police shot Jacob Blake * * *.”
Christopher Rugaber, Zuckerberg says Facebook erred in not removing militia
post, ABC News (August 29, 2020) https://abcnews.go.com/ Business/
wireStory/zuckerberg-facebook-erred remov-ing-militia-post-72702521 (accessed
Sept. 24, 2020).
As a matter of policy, public safety should be of primary concern,
which is why we have tort law. I truly do not see Facebook’s issue. It had information
of a potential crime. By acting it might have saved a life. Of course, we will never
know, but that is why we give individuals their day in court.
I fully agree with the majority opinion that “[t]his case arises from
disturbing facts [stemming] from the senseless murder of Robert Godwin, Sr.,
* * *.” Although the law may not be ready to hold Facebook accountable in the
instant case, from a moral point of view, it is hard to ignore “the principle that for
every wrong a remedy must exist * * *.” Hull v. Cleveland, 79 Ohio App. 87, 91, 70
N.E.2d 137 (8th Dist. 1946). Only when legal and moral duty diverge can courts hear
a call for movement and reform.