COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71766 GARY LEE SMITH AND STELLA : SMITH, : : Plaintiffs-Appellants : JOURNAL ENTRY : and vs. : OPINION : DEAN'S AND DAVE'S DISCOUNT : STORES, : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 30, 1997 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 303084 JUDGMENT : AFFIRMED IN PART, REVERSED : IN PART, AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiffs-appellants: George L. Nyerges 2012 West 25th Street Suite 803 Cleveland, Ohio 44113-4189 For defendant-appellee: Patrick F. Roche DAVIS AND YOUNG 1700 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115-1027 2 NAHRA, J.: Appellants, Gary Lee Smith and Stella D. Smith, appeal the trial court's judgment directing a verdict in favor of appellee Dean's and Dave's Deep Discount Store (hereinafter Dave's ) at the close of appellants' case. Appellants presented five witnesses at trial: Gary Smith; Stella Smith; William Grimmer, President of Serv-A-Rack, Inc. which owns Dave's; Kathy White, the manager of Dave's; and Vickie Nguyen, an assistant manager at Dave's. Gary and Stella Smith both testified that they went to Dave's on February 25, 1995 and that as they entered the store an alarm sounded. They stated that when they entered the store, two teenage girls were exiting. Gary Smith testified that he heard one of the girls say, What did you get this time? Stella Smith testified that she heard one of the girls say, What did you do? Tell me what you got. Gary Smith then testified that after they entered the store a woman named Vickie ran up to Stella, repeatedly told her that she was the one, grabbed her arm, took her purse from her, scanned it over a pad, and emptied its contents onto the counter. He stated that he was told to empty his pockets and was searched. Both he and Stella testified that they were made to walk through the security devices by the doors and that no further alarms sounded. Both Stella and Gary testified to the effect that they suffered shame, embarrassment, and humiliation over the incident 3 because a crowd of customers had gathered to watch the scene. They also stated that the stress of the incident aggravated preexisting medical conditions. The representatives of Dave's were called on cross- examination. William Grimmer testified that he was not made aware of any incident at Dave's until he was contacted by an attorney representing the Smiths. Both Kathy White and Vickie Nguyen testified that they had no knowledge of an incident involving the Smiths until being informed of the instant action and that they did not remember any incident involving the Smiths and the alarm system. In granting appellee's motion for a directed verdict, the court noted the requirements necessary to bring causes of action for intentional and negligent infliction of emotional distress and found that the evidence, when most strongly construed in appellants favor, showed that appellants did not present a prima facie case for either tort. Appellants' first, second, and fourth assignments of error challenge the trial court's directed verdict and will be treated together. The assignments of error state: . THE TRIAL COURT ERRED IN INTERPRETATION OF THE THEORIES OF THE CAUSES OF ACTION OF THE TORT ISSUES PRESENTED IN THIS CASE. [SIC.] II. THE TRIAL COURT ERRED BY GRANTING THE DEFENDANT APPELLEES MOTION FOR DIRECTED VERDICT AT THE CONCLUSION OF PLAINTIFFS EVIDENCE AFTER PLAINTIFF RESTED BY USURPING THE FUNCTION OF THE JURY BY NOT ALLOWING THE JURORS TO BE THE TRIERS OF FACTS. [SIC.] 4 IV. THE TRIAL COURT ERRED AND ITS RULING ON NOVEMBER 22, 1996 IS AGAINST THE WEIGHT OF THE EVIDENCE OF TESTIMONY OF FIVE WITNESSES, WERE NOT REBUTTED BY REFUSING TO HOLD THAT APPELLANTS PRESENTED A PRIMA FACIE CASE FOR JURY DETERMINATION. [SIC.] We review the instant assignments of error de novo. Soltis v. Wegman, Hessler, Vanderburg, & O'Toole (Feb. 13, 1997), Cuyahoga App. No. 69602, unreported. Civ.R. 50(A)(4) provides appropriate grounds upon which to grant a directed verdict: When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. On review, an appellate court will not weigh the evidence. Rather, [t]he evidence adduced at trial and the facts established by admissions in the pleadings and in the record must be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied. Posin v. A.B.C. Motor Court Hotel (1976), 45 Ohio St.2d 271, 275; Norris v. Allstate Ins. Co. (Dec. 19, 1996), Cuyahoga App. No. 70591, unreported. Appellants contend that the trial court did not apply the correct law to the case. Although poorly articulated in the pleadings and at trial, appellants' counsel made reference to the torts of invasion of privacy, intentional and negligent infliction of emotional distress, false imprisonment, and assault and battery as his causes of action. On appeal, appellants argue that the jury 5 should have been allowed to consider their case as an action for negligent or intentional infliction of emotional distress, defamation, and invasion of privacy. In order to sustain an action for intentional infliction of emotional distress appellant must demonstrate: *** 1) that the actor either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to the plaintiff; 2) that the actors conduct was so extreme and outrageous as go `beyond all possible bounds of decency' and was such that it can be considered as utterly intolerable in a civilized community,' Restatement of Torts 2d (1965) 783, Section 46, comment d; 3) that the actor's actions were the proximate cause of plaintiff's psychic injury; and 4) that the mental anguish suffered by plaintiff is serious and of a nature that no reasonable man could be expected to endure it,' Restatement of Torts 2d 77, Section 46, comment j. *** TschantzV. Ferguson (1994), 97 Ohio App.3d 702, 703 (quoting Pyle v. Pyle (1983), 11 Ohio App.3d 31). See, also, Yeager v. Local Union 20, Teamsters, Chauffers, Warehousemen & Helpers of America (1983), 6 Ohio St.3d 369. We find that the alleged behavior of the appellees could not reasonably be construed as being so extreme and outrageous as to be beyond all possible bounds of decency . For this reason, appellants' claim of intentional infliction of emotional distress was properly subject to the trial court's directed verdict. Appellants' negligent infliction of emotional distress claim is similarly irreconcilable with the evidence. In Tschantz, supra, at 714, we discussed the elements a plaintiff must demonstrate to sustain this cause of action. The plaintiff will then be required to show that he or she (1) was a bystander to an accident, (2) reasonably 6 appreciated the peril thereof, and (3) suffered serious and foreseeable emotional distress as a result of his cognizance of fear of the peril. Appellants' reliance on this legal theory is entirely misplaced. Appellants' argument that they properly brought an action for defamation is not persuasive. An action for defamation requires proof that: 1) a false statement was made; 2) which defamed the plaintiff; 3) the statement was published; 4) plaintiff was injured thereby; and, 5) there was fault on the part of the defendant. Rogers v. Buckel (1992), 83 Ohio App.3d 653, 659. In this case, the only statement in evidence that is arguably defamatory is the alleged statement made by Vickie to Stella Smith that she was the one. On cross-examination, Stella Smith testified as follows: . Right. My question is: They weren't accusing you of stealing anything, were they? . No, but she said I did it. . And to this day, we don't know what it is, do we? . Well, why did she have a right to get my purse? . Hey, listen, to this day, we don't know what it is, do we? . No, I don't. Stella Smith admitted that she did not know exactly what the statement meant, although she testified that she thought that the statement had meant that she had stolen something; however, the statement is easily interpreted to mean that she was the one who set off the alarm. Accordingly, no claim for defamation existed 7 and the trial court properly rendered a directed verdict on this issue. We turn to appellants' claim for invasion of privacy. In Rothstein v. The Montefiore Home (Dec. 12, 1996), Cuyahoga App. No. 70114, unreported, this court addressed the invasion of privacy tort and its four distinct facets. 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 or ordinary sensibilities. (Emphasis sic.) * * * One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for his invasion of privacy, if the intrusion would be highly offensive to a reasonable person. [Citations omitted.] As noted, supra, appellants cannot maintain a cause of action for intentional infliction of emotional distress as that tort requires that the conduct complained of be extreme and outrageous. However, the tort of invasion of privacy requires only that the intrusion be highly offensive to a reasonable person and that the conduct cause mental suffering, shame or humiliation to a person or ordinary sensibilities. Rothstein, supra; see, also, 3 Ohio Jury Instructions (1997), Section 349.03. Additionally, plaintiffs who bring an action for invasion of privacy need only prove that they were humiliated or embarrassed, not that they suffered severe emotional distress. Id. 8 The conduct which appellants complain of: that appellants were detained and searched at the front of a store in full view of the customers at the store, that Stella Smith's purse was grabbed from her without her permission and its contents dumped onto a counter, and that appellants were offered no explanation for the intrusion on their property and persons during or after the incident sets forth conduct that a jury could determine to be a highly offensive intrusion into their private affairs. The testimony also sets forth a claim of battery by Stella Smith as she was grabbed by her arm. Whether this grabbing was justifiable is an affirmative defense and should not be taken from a jury's consideration. We note that appellants' testimony was uncontradicted by the testimony of appellee's representatives William Grimmmer, Kathy White, and Vickie Nguyen. Simply because these persons had no knowledge of the events appellants testified to does not mean that the events did not occur. For these reasons, we affirm the court's directed verdict as to appellants claims for negligent and intentional infliction of emotional distress, but find that the court erred in directing a verdict for appellee where the evidence presented by appellants was sufficient to set forth a prima facie case for an invasion of privacy. We sustain appellants' first, third, and fourth assignments of error. We need not address appellants' second 9 assignment of error1 as it is rendered moot by our resolution of this case. See, App.R. 12 (A)(1)(c). Judgment affirmed in part, reversed in part, and this cause remanded for further proceedings consistent with this opinion. 1 Appellants' second assignment of error states: THE TRIAL COURT WAS BIASED AND PREJUDICED AGAINST THE ISSUES PRESENTED BY THE PLAINTIFFS IN THIS CASE. 10 This cause is affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion. Costs divided equally between plaintiffs-appellants and defendant-appellee. It is ordered that a special mandate be sent to said 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. SWEENEY, JAMES D., C.J., and O'DONNELL, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R.22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .