COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59488 : DENNIS MORGAN : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : FISHER FOODS, INC. ET AL. : : Defendant-Appellee : : DATE OF ANNOUNCEMENT DECEMBER 5, 1991 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 154835 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: GERALD J. PATRONITE MICHAEL B. STINN Suite 210 1240 Standard Building 34950 Chardon Road Cleveland, Ohio 44113 Cleveland, Ohio 44094 -2- PATRICIA A. BLACKMON, J.: Dennis Morgan, plaintiff-appellant, timely appeals the trial court's granting of summary judgment in favor of defendants- appellees, Fisher Foods, Incorporated and Riser Foods, Incorp- orated. Finding no genuine issue as to any material fact, as a matter of law, we affirm. Appellant was injured while working for appellees in January, 1985. Appellant's back injury was the result of a slip and fall in one of appellee's grocery stores while appellant was employed as a produce clerk. Appellant continued working, after the fall, as a produce clerk until approximately March, 1985. Appellant filed a claim for worker's compensation benefits. The claim was allowed for worker's compensation benefits, with a finding that appellant incurred a lumbar strain and aggravated a pre-existing arthritic condition. Appellees paid appellant temporary total worker's compensation benefits, as a result of an order by the Industrial Commission. On or about June 9, 1987, appellees requested a hearing to determine whether appellant's temporary and total disability should be continued, or whether he had become permanently disabled. The Industrial Commission commenced a hearing on this issue in July, 1987. Several witnesses testified at the hearing and a film depicting appellant engaged in physical activity was shown. Appellant raised an objection to the showing of the film and the hearing was continued until August 21, 1987. -3- On August 21, 1987, additional testimony was taken and the film of appellant was shown again. The second showing was at the request of counsel for appellant. Medical testimony was also introduced from various physicians who had examined appellant. As a consequence of these hearings, the Industrial Commission determined that appellant was permanently and totally disabled and the appellees stopped paying temporary total benefits to appellant. Appellant appealed this decision and was not successful in two separate appeals. During the second of these hearings, witnesses testified, medical reports were again introduced, and the film of the appellant was shown, also at the request of the appellant. Additionally, the hearing examiners determined on appeal that the appellant was permanently and totally disabled. As a result, appellant's temporary total benefits were discontinued. Appellees do not dispute the fact that a private investigator, Stedson McIntyre, was hired by them for the purpose of surveilling appellant. It was McIntyre who took the film of appellant engaged in physical activities that was introduced at the hearings. In August, 1987, the appellant filed a complaint against appellees and co-defendant, Stedson McIntyre. This original complaint alleged defamation for the showing of the film at the worker's compensation hearings, negligent infliction of emotional distress, and invasion of privacy. However, this complaint was voluntarily dismissed by appellant in September, -4- 1987. Sometime in August of 1988, appellant filed a second complaint. This complaint alleged four causes of action, invasion of privacy, negligent hiring and supervision, defamation, and a cause of action pursuant to R.C. 4123.90. After answers were filed and the discovery concluded, the trial court granted summary judgment in favor of appellees on February 23, 1990. Appellant's sole assignment of error states: THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT ON ALL ISSUES AND CAUSES OF ACTION WHEN DISPUTED ISSUES AND FACTS REMAIN. The first cause of action that we will address is the appellant's claim of an invasion of privacy. The Ohio Supreme Court, in the case of Hausk v. Peth (1956), 165 Ohio St. 35, defined the "right of privacy" and enumerated the prima facie elements of an actionable invasion of privacy. The right of privacy is the right of a person to be let alone, to be free from unwarranted publicity, and to live without unwarranted interference by the public in matters with which the public is not necessarily concerned. Id. at Syllabus 1. An actionable invasion of the right of privacy is the unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or 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. Id. at Syllabus 2. -5- The evidence, in this matter, fails to create as a matter of law a genuine issue as to any material fact with respect to proof of a claim for an invasion of privacy. There is no evidence that the appellees engaged in an unwarranted appropriation or exploitation of appellant's personality. Appellees admit that McIntyre's report contained information about the appellant's trip to New Jersey and credit information about appellant's spouse. However, possession of such information by appellees, alone, does not establish a prima facie case of invasion of privacy. Appellant has not presented any evidence that the information obtained in New Jersey or the credit information was used in an unauthorized way to exploit the personality of appellant. In fact, the record contains no evidence that appellees publicized this information to anyone. Consequently, when contemplating the first theory under which appellant could have pursued the invasion of privacy action (i.e. unwarranted appropriation or exploitation of one's personality), summary judgment was proper. The second theory, under which the appellant could have pursued the invasion of privacy action is "the publicizing of one's private affairs with which the public has no legitimate concern," likewise does not survive summary judgment. The evidence is uncontroverted, in this matter, that no inquiries were made about the private affairs of appellant and published, either by McIntyre or anyone under the appellees' employment. Appellees presented evidence that the questions -6- asked of appellant's neighbors were not questions about appellant's private affairs. One neighbor, who was questioned by McIntyre, specifically testified that she was not asked anything about the personal life of the appellant. The filming of appellant can not be argued to be a private affair. The film was taken of appellant while he was outside in public view. Furthermore, the activities that were filmed were being performed in public view. We must also state that this record contains no evidence of the film being tampered with. Appellant discusses insistently the fraudulent tampering of the film without any evidence in this record to support such an allegation. The last invasion of privacy theory that appellant arguably could have pursued was 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 sensi- bilities. There is no evidence in the record that would create a genuine issue as to any material fact on this issue. Therefore, summary judgment was still proper. The only items that could possibly be defined as private affairs would be the trip to New Jersey and credit information on the appellant's spouse. The record indicates that even though this information was in McIntyre's report, appellees never publicized it or attempted to use the information. -7- Consequently, even if we accept that the attainment of this information was a wrongful intrusion into the appellant's private affairs, it was never used by the appellees, more or less used in such a manner as to cause appellant mental anguish. There are no genuine issues as to any material facts as a matter of law relating to appellant's claimed invasion of privacy. There is no evidence contained in the record that there was an unwarranted appropriation or exploitation of appellant's personality. There is no evidence that any private affairs were published or utilized in any way by the appellees, with which the public had no legitimate concern. Lastly, there is no evidence in this record that the private affairs of appellant were utilized by appellees at all. Summary judgment was proper as to appellant's cause of action for an invasion of privacy. With respect to appellant's cause of action for negligent hiring and supervision, we must point out at the outset that this court held in Pandey v. Cleveland Public Library (September 5, 1991), Cuyahoga App. No. 58632, unreported that negligent hiring is a non-actionable business judgment. The record contains no evidence to create a genuine issue as to any material fact, as a matter of law, regarding the elements necessary to prove a claim for negligent hiring or supervision. In order to prevail on a claim for negligent hiring or supervision, appellant would have to show that appellees had a duty to act reasonably and prudently in the hiring and supervision of McIntyre. Secondly, appellant would have to -8- demonstrate that this duty was breached. Thirdly, appellant would have to demonstrate that the breach of this duty was the proximate cause of his damages. Finally, appellant would have to show that he sustained damages and prove their nature and extent. Appellant has not set forth any facts to establish that appellee failed to reasonably and prudently hire and supervise McIntyre. In fact, the only evidence contained in the record suggests that appellees fulfilled their duty. Appellees have evidence in the record of their diligence in trying to determine McIntyre's qualifications and reputation. Therefore, appellees have presented evidence on all material determinative issues regarding this action. There is no case to be tried on this action. The record contains neither evidence that the alleged negligent hiring and supervision were the proximate cause of his damages nor does it contain evidence of any damages resulting from the alleged negligent hiring or supervision of McIntyre. If the termination of appellant's temporary total benefits is alleged to be the damage, this assertion is incorrect. Appellant's temporary total benefits were terminated by the Industrial Commission after receiving medical information, some of which was submitted by appellant's physician. Therefore, we conclude that appellant has failed to fulfill that most basic requirement enunciated in Civ. R. 56(E), that is to set forth specific facts showing that there is a genuine issue for trial. He cannot avoid summary judgment unless and until he -9- set forth specific facts which show that there is a genuine issue of whether appellees were under a duty, that they breached that duty, and that the breach was the proximate cause of his injury. Harless v. Willis Day Warehouse Co. (1978), 54 Ohio St. 2d 64. Finally, with respect to the remaining two causes of action, defamation and a claim pursuant to R.C. 4123.90, the record in this case lacks specific facts that would establish both of these causes of action. Even though appellant claims that appellees defamed him, appellant has not presented any evidence of specifically who made the defamatory statements, the nature of the statements and what made them untrue, and specifically when the defamatory statements were made public. This complete lack of evidence demonstrates the propriety of summary judgment. If the defamation occurred through the conduct of McIntyre, there is still no evidence of any defamatory statements made by McIntyre. The testimony of Helen Tymon does not establish that McIntyre made defamatory statements to her regarding appellant. If the defamation is allegedly contained in McIntyre's reports, the record contains no evidence that McIntyre's reports were published by appellees. Assuming that the defamation claim is based on the publication of the film at the Workers' Compensation hearing or to Dr. Rollins, there is no evidence, only allegations, that the film was fraudulent or a malicious publication. We are compelled to follow the law in Ohio regarding privileged communications in -10- a judicial or quasi-judicial proceeding. A worker's compensation hearing is at the very least a quasi-judicial function. Clearly, the publication of the film was made in good faith or at least there is no evidence in the record to the contrary. Appellees had an interest and a duty in the proceeding. Therefore, the publication of the film and the statements and reports of McIntyre were at the very least under the protection of a qualified privilege, but more likely an absolute privilege. Summary judgment was proper as to the claim for defamation. There is no evidence that the film, McIntyre's reports, or statements were false and maliciously published. Second, the publication of these materials during the hearings and to Dr. Rollins were privileged communications, resulting in no cause of action for defamation. Finally, summary judgment was proper as to the claim of punitive action by the appellees, pursuant to R.C. 4123.90. In this case, the punitive action would have to be the termination of appellant's worker's compensation benefits. This was not done by appellees; instead, it was action taken as a result of the Industrial's Commission's determination after two appeals that appellant was permanently and totally disabled. Therefore, he was no longer legally entitled to temporary total disability benefits. Where the record lacks the requisite evidence to establish essential elements of each cause of action, summary judgment is properly granted on those causes of action. Appellant alleges -11- certain conduct on the part of appellees but wholly fails to present evidence of that conduct. Thus, there are no genuine issues as to any material facts regarding appellant's failure to establish prima facie cases of invasion of privacy, negligent hiring and supervision, defamation, or an action pursuant to R.C. 4123.90. Judgment affirmed. -12- It is ordered that appellees recover of appellant their 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. Exceptions. DAVID T. MATIA, P.J. and FRANCIS E. SWEENEY, J., CONCUR. PATRICIA A. BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .