COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68841 KIMBERLY GIERING : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION NASHVILLE PRODUCTIONS, INC., : ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 18, 1996 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CV-247467 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: C. DOUGLAS LOVETT, ESQ. MICHAEL J. WARRELL, ESQ. 400 Terminal Tower Lakewood Center West 50 Public Square 14650 Detroit Avenue, Suite 118 Cleveland, Ohio 44113 Lakewood, Ohio 44107 - 2 - DYKE, J.: Appellant originally filed this action against Nashville Productions, Inc., doing business as Fagan's Restaurant ("Fagan's"), and Don Ladanyi, the owner of Fagan's, and Loren Sellman, an employee. The original complaint alleged a count of defamation, a count of negligent employment and a count of failure to pay compensation. The first amended complaint added third party defendants, who were voluntarily dismissed in a subsequent motion, and an additional count of sex discrimination. The final amended complaint asserted a claim of false imprisonment and requested $300,000.00 in punitive damages in addition to the $300,000.00 in compensatory damages previously requested. Appellant's claims stem from an incident which occurred on a Friday evening, November 13, 1992, at Fagan's restaurant. Appellant had worked for Fagan's as a bartender for approximately eight months. Loren Sellman, a retired police officer, worked for Ladanyi to enforce honesty among the restaurant employees. Sellman in turn hired what are commonly known as "spotters," people who are paid to act as customers and watch the employees for instances of impropriety. On the evening in question two spotters, a husband and wife hired by Sellman, were sitting at the bar where appellant waited upon them. Each of the spotters saw appellant take what appeared to be money from the cash drawer on two occasions. These two instances were reported to Sellman, who then called Ladanyi with the information. Appellant had been perceived to be a - 3 - trustworthy employee up until this evening, however after Ladanyi received the second report, he suggested to Sellman that the police should be involved. The police arrived, in uniform, and waited to speak with appellant and the other woman tending the bar with her that evening in the back area of the restaurant near a manager's office. This area was not visible to the customers but was visible to employees of Fagan's who were in the kitchen area of the restaurant down the hall. While tending the bar, appellant and the other bartender were approached by managers of the restaurant and asked to follow them to the back area where the police waited. The police spoke with the women for approximately twenty minutes. Appellant was not asked to return to work after that weekend. Nor did appellant face prosecution as a result of the spotters' reports. Appellant asserted the claims against appellees four months later. The case went to trial before a jury. At the end of plaintiff's presentation of evidence the court directed a verdict for all appellees on the defamation and sex discrimination claims, leaving the false imprisonment claim for the jury's consideration. The court later dismissed all claims against appellees Ladanyi and Sellman, including the negligent employment claim. The parties stipulated to the validity of appellant's failure to pay compensation claim and appellees agreed to pay appellant's back wages. - 4 - After the presentation of all evidence, a majority of the jury returned with a general verdict for appellant in the amount of $100,000.00. The jury also answered a special interrogatory which the court found to be inconsistent with the general verdict. The jury answered in the negative to the question of whether they found by a preponderance of the evidence that appellant was falsely imprisoned. The court polled the jury to determine if this was in fact the response each juror who had signed the special interrogatory had intended. After receiving the same answer, the court rendered judgment in favor of the appellees on the false imprisonment claim, nullifying the general verdict. Appellant filed a timely appeal from the court's rulings and final determination. Appellant asserts eight assignments of error. I THE TRIAL COURT ERRED IN ITS SUA SPONTE DISMISSAL OF PLAINTIFF'S DEFAMATION CLAIMS SINCE THE RECORD EVIDENCE - MUCH OF WHICH WAS UNDISPUTED - OF GIERING'S REMOVAL FROM THE BAR AND DELIVERY TO THE UNIFORMED POLICE IN FULL VIEW OF CUSTOMERS AND EMPLOYEES, SET FORTH A CLAIM OF SLANDER. Appellant argues that the requisite elements of her defamation claim appeared on the record. According to appellant, the record contains evidence that Ladanyi intended to convey the message to other employees that appellant was being accused of theft. Appellant further asserts that the record contains evidence that the accusation was false and that the evidence shows a clear determination on the part of Ladanyi to avoid the truth. This evidence would support a finding of actual malice to constitute an - 5 - abuse of any qualified privilege. Appellant claims that the defamatory gesture was witnessed by employees and customers and was understood by them to mean that appellant was stealing. Appellant's arguments are not well taken. To establish a defamation claim, a plaintiff must demonstrate the existence of a false publication causing injury to a person's reputation, or exposing him to public hatred, contempt, ridicule, shame or disgrace, or affecting him adversely in his trade or business. Ashcroft v. Mt. Sinai Medical Ctr. (1990), 68 Ohio App.3d 359, paragraph three of the syllabus. Appellant complains specifically under this assignment of error that the trial court erred in dismissing the defamation claim which involved the defamatory gesture of removing her from the bar in full sight of customers and employees and delivering her to the uniformed police officers. Appellant failed to support her allegation that the accusation of theft was false. Nor is it clear that the gesture was published in the sense that customers could see appellant removed from the bar and presented to the police. Appellant admitted that at the time she was asked by one of the managers to accompany him to the back to discuss something, she thought the subject of the discussion was the other bartender, not anything appellant had done. She went willingly and therefore was not forcibly removed from the bar, creating a scene before the customers. The evidence presented at trial was undisputed that the employees in the kitchen area of Fagan's could look down a hallway - 6 - and see the two women talking to uniformed officers. This scene could be interpreted in two ways. The other employees could have thought that appellant was being questioned regarding something she had done, or regarding an incident about which she had information but not involving a criminal act on her part. The "innocent construction" rule is applied to determine whether others might reasonably understand a statement to defame another. The rule provides that: [I]f allegedly defamatory words are susceptible to two meanings, one defamatory and one innocent, the defamatory meaning should be rejected, and the innocent meaning adopted. Yeager v. Local Union 20 [1983], 6 Ohio St.3d [369], 372 * * * Mendise v. Plain Dealer Publishing Co. (1990), 69 Ohio App.3d 721, 726. Appellant failed to support her assertion that the customers and employees understood that she was being accused of theft by the fact that she left the bar area with one of the restaurant managers and was seen speaking with police by employees in the kitchen area. Furthermore, the record includes evidence that the accusation of theft was based upon witnessed incidents. Although appellant attempted to discredit the spotters who witnessed her taking money from the register, it was not defamatory for the owner of Fagan's to request police assistance in investigating the matter. Relying upon the reports of the spotters was not acting in reckless disregard for the truth. A trial court may direct a verdict for defendants after construing the evidence most strongly in favor of the party against - 7 - whom the motion has been made and determining that reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party. Civ.R. 50. After construing the evidence presented by appellant in appellant's favor, after the presentation of appellant's case, reasonable minds could only conclude that no defamatory statement was made by Fagan's its owner or employees by the act of requesting appellant's presence in the back of the restaurant to speak with the police. Appellant's first assignment of error is overruled. II THE TRIAL COURT ERRED IN DIRECTING A VERDICT ON PLAINTIFF'S DEFAMATION CLAIMS SINCE THE RECORD WAS UNDISPUTED THAT AGENTS OF THE RESTAURANT EXPLICITLY ADVISED RESTAURANT CUSTOMERS THAT GIERING HAD BEEN FIRED FOR THEFT. Appellant argues that appellees had intended the further dispersion of the slander, and therefore was responsible for the repetition to customers by employees that appellant had been fired for theft. Appellant further asserts that the foreseeability of whether the defamation would be repeated was a question for the jury. Appellant's arguments are without merit. Evidence was presented at the beginning of appellant's case that several regular customers visited Fagan's and asked of appellant's whereabouts. They were informed by those employees working at the restaurant that appellant was discharged for theft. Appellant claims that these statements were defamatory, having been repeated to parties who had no real interest in the matter. - 8 - The issue to be determined is what constitutes an interest. Many cases have found interests to exist where a party had a specific business interest in the information passed along and alleged to be defamatory. This is not the case where customers of the restaurant noticed her absence and asked about appellant out of curiosity. However, where a person is simply speaking what they know with no intent to injure another's reputation, we find such communication to be privileged and subject to proof of actual malice. We rely upon the language used by the Ohio Supreme Court which holds that: All that is necessary to entitle such communications to be regarded as privileged is, that the relation of the parties should be such as to afford reasonable ground for supposing an innocent motive for giving information, and to deprive the act of an appearance of officious intermeddling with the affairs of others. Hahn v. Kotten (1975), 43 Ohio St.2d 237, 246. See also, Jacobs v. Frank (1991), 60 Ohio St.3d 111. Evidence supported a supposition of an innocent motive in the statements of the employees to interested customers who initiated the topic of appellant's absence. Furthermore, we can not find legal or factual support for appellant's assertion that the management of Fagan's was somehow responsible for the remarks of its employees in response to the customers' inquiries. We agree with the trial court's finding that reasonable minds could come to but one conclusion, and that conclusion was adverse to appellant. The directed verdict was properly entered for the appellees. Appellant's second assignment of error is overruled. - 9 - III THE TRIAL COURT ERRED IN DIRECTING A VERDICT FOR DEFENDANTS SINCE THE DEFENDANTS' DEFAMATORY STATEMENTS WERE NOT SUBJECT TO A COMMON-LAW QUALIFIED PRIVILEGE AND SINCE, EVEN IF THEY WERE, IT WAS A QUESTION OF FACT WHETHER ANY PRIVILEGE HAD BEEN ABUSED BY THE DEFENDANTS. Appellant asserts that the existence of a qualified privilege on the part of the appellees was a question for the jury. The law does not support appellant's assertion. Where the circumstances of the occasion for the alleged defamatory communication are not in dispute, the determination of whether there is a qualified privilege is a question of law for the trial court. McCartney v. Oblates of St. Francis deSales (1992), 80 Ohio App.3d 345, 355. The circumstances of the alleged defamatory statements are not in dispute in the present case. The issue of whether a qualified privilege existed or not was within the province of the court. Appellant's third assignment of error is overruled. IV THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF'S CLAIMS FOR SEX DISCRIMINATION UNDER R.C. 4112.99, SINCE THE QUESTION OF WHETHER DISCRIMINATION OCCURRED IS A QUESTION OF FACT, AND SINCE THERE WAS CLEAR EVIDENCE THAT, IN OTHER INSTANCES WHERE MALE EMPLOYEES WERE SUSPECTED OF DISHONEST CONDUCT, THEY WERE TREATED IN A FAR MORE LENIENT MANNER THAN PLAINTIFF. Appellant argues that she established a prima facie case of discrimination by showing that she is a member of a protected class and was treated more harshly than similarly situated males, accused of comparable conduct. According to appellant's argument, reasonable minds could differ as to whether she had successfully - 10 - established the prima facie case, therefore the jury should have been presented with this question of fact. In order for plaintiff to establish prima facie case of discriminatory discharge under disparate treatment theory and pursuant to Title VII, ADEA and Ohio Civil Rights Statute, plaintiff had to prove that she was a member of protected minority group, that she was discharged, and that causal connection existed between her protected status and her discharge. [Citations to statutes omitted.] Brown v. Herman's Furniture, Inc. (N.D. Ohio 1990), 772 F.Supp. 350, affirmed (C.A. 6, 1991), 941 F.2d 1209. Appellant presented evidence that a male employee had been suspected of dishonesty by the management of Fagan's and experienced different treatment than appellant did. Joseph Fontana admitted on the stand that when his cash drawer had come up $250.00 short he had an opportunity to explain the situation and repay the shortage. Fontana was discharged several months following the shortage in his cash drawer because Ladanyi felt that he could no longer trust Fontana. Appellant claims that she was not given an opportunity to explain her side of the story, as Fontana was, before being summarily discharged. This evidence is insufficient to support appellant's claim that a causal connection existed between her discharge and her protected status as a woman. The trial court properly directed a verdict on appellant's claim of sex discrimination. Appellant's fourth assignment of error is overruled. V - 11 - THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF'S CLAIMS FOR PUNITIVE DAMAGES. Appellant asserts that it is for the jury to determine the fact and amount of punitive damages in a tort case. Evidence of common law malice existed to support a punitive damages award, according to appellant. Appellant's argument is without merit. R.C. 2315.21(B) provides: Subject to division (D) of this section [claims against the state], punitive or exemplary damages are not recoverable from a defendant in question in a tort action unless both of the following apply: (1) The actions or omissions of that defendant demonstrate malice, aggravated or egregious fraud, oppression, or insult, or that defendant as principal or master authorized, participated in, or ratified actions or omissions of an agent or servant that so demonstrate; (2) The plaintiff in question has adduced proof of actual damages that resulted from actions or omissions as described in division (B)(1) of this section. While appellant is correct in her citation to the recent Ohio Supreme Court ruling that a trial court can no longer determine the amount of punitive damages under R.C. 2315.21(C), that ruling did not deprive trial courts of the discretion to direct verdicts on the issue of punitive damages where no evidence exists to support a finding of malice as set forth in subsection (B)(1), above. See Zoppo v. Homestead Ins. Co. (1994), 71 Ohio St.3d 552. Malice, as it pertains to punitive damages awards, is defined as "(1) that state of mind under which a person's conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons that - 12 - has a great probability of causing substantial harm." Preston v. Murty (1987), 32 Ohio St.3d 334, at the syllabus. We can not find that the trial court abused its discretion in directing a verdict on the issue of punitive damages. Construing the evidence most strongly in appellant's favor, there was neither substantial nor competent evidence upon which reasonable minds could differ as to whether appellees' conduct could be characterized by hatred, ill will or a spirit of revenge. Appellant's fifth assignment of error is overruled. VI THE TRIAL COURT ERRED IN DISMISSING ALL CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS, LADANYI AND SELLMAN, SINCE THE EVIDENCE WAS UNDISPUTED THAT BOTH MEN ACTIVELY CAUSED THE EVENTS OF NOVEMBER 13 TO OCCUR. Appellant claims that the individually named appellees were responsible for the events leading to her dismissal and therefore, should have been subject to jury scrutiny regarding their roles and status in the torts committed against appellant. Appellant's assertions are without merit. As discussed in the prior assignments of error, the trial court properly directed verdicts on the defamation and sex discrimination claims as to all defendants below. The false imprisonment claim against Ladanyi and Sellman was dismissed by the trial court after both sides had rested below. The trial court indicated that neither of the men were individually liable for the alleged false imprisonment because of their ownership of or employment status with Fagan's. We agree. Ladanyi and Sellman - 13 - could not be held liable for false imprisonment when they had reasonable cause to suspect that a theft had taken place and proceeded to inform the police. No evidence was submitted to implicate either Ladanyi or Sellman on appellant's false imprisonment claim. Appellant's sixth assignment of error is overruled. VII THE TRIAL COURT ERRED IN ULTIMATELY REFUSING TO SUBMIT A STIPULATED JURY INSTRUCTION ON THE CLAIM OF FALSE ARREST, AND INSTEAD GAVE AN INSTRUCTION WHICH WAS UNSUITED FOR THE FACTS OF THE CASE, AND WHICH HAD PREVIOUSLY BEEN REJECTED BY ALL PARTIES. Appellant asserts that the court's inclusion of a probable cause instruction was contrary to the agreement between both counsel and was clear error. This assertion is not well taken. The trial court is ultimately responsible for the instructions given to the jury on the law. Civ.R. 51(A) provides as follows: At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. Copies shall be furnished to all other parties at the time of making the requests. The court shall inform counsel of its proposed action on the requests prior to counsel's arguments to the jury and shall give the jury complete instructions after the arguments are completed. the court also may give some or all of its instructions to the jury prior to counsel's arguments. The court need not reduce its instructions to writing. This Court has previously held that a court is not required to give a proposed charge where it does not correctly state the law. Hardiman v. Zep Mfg. Co. (1984), 14 Ohio App.3d 222. The fact that both parties agreed and stipulated to a set of instructions on the - 14 - false imprisonment claim is irrelevant. The court gave the correct instruction, including the proposition that an imprisonment is unlawful if it is made without probable cause. Appellant's seventh assignment of error is overruled. VIII THE TRIAL COURT ERRED WHEN IT INTERROGATED THE JURY PANEL, RATHER THAN REQUIRING THEM TO DELIBERATE FURTHER, AFTER THEIR RETURN OF A $100,000.00 GENERAL VERDICT, ALONG WITH AN OSTENSIBLY INCONSISTENT JURY INTERROGATORY. Appellant argues that Civ.R. 49(B) makes no provision for interrogating the jury in open court when the general verdict conflicts with the answer to a special interrogatory. Thus, appellant claims that the trial court exceeded its authority and interfered with the deliberation process of the jury. Appellant requests this Court to reinstate the general verdict due to this error. We find that the trial court acted in accordance with Civ.R. 49(B) in polling the jury when faced with an inconsistency between the answered special interrogatory and the general verdict. Civ.R. 49(B) provides in pertinent part that: When the general verdict and the answers are consistent, the appropriate judgment upon the verdict and answers shall be entered pursuant to Rule 58. When one or more of the answers is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial. The trial court entered judgment for appellees pursuant to Civ.R. 58 in accordance with the negative answer to the special interrogatory, notwithstanding the general verdict. In this case - 15 - the court was satisfied with the jury's response and chose not to return the jury for further consideration of its answers. Either option was open to the court's discretion. We find no error. Appellant's eighth assignment of error is overruled. The trial court's final judgment in favor of defendants on the false imprisonment claim is affirmed. The court's prior dismissals of appellant's sex discrimination and defamation claims and the dismissal of all claims as to the individually named defendants are also affirmed. - 16 - 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 Court of Common Pleas 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. HARPER, P.J., AND DAVID T. MATIA, J., CONCUR ANN DYKE JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .