COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72440 SANDRA GERACI : PLAINTIFF-APPELLANT : JOURNAL ENTRY : : AND v. : : OPINION WALTER CONTE, ET AL. : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: JUNE 18, 1998 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-314795. JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Patrick J. Perotti, Esq. Susan E. Rusnak, Esq. Dworken & Bernstein 153 East Erie Street, No. 304 Painesville, OH 44077 For Defendants-Appellees, Albert L. Purola, Esq. Walter Conte, et al.: 8500 Station Street, Suite 265 Mentor, OH 44060 David K. Smith, Esq. Means, Bichimer, Burkholder & Baker 4700 Rockside Road Summit One, Suite 540 Cleveland, OH 44131-2152 For South Euclid Jeffrey J. Wedel, Esq. School District: Squire, Sanders & Dempsey 4900 Key Tower 127 Public Square Cleveland, OH 44114-1304 -2- TIMOTHY E. McMONAGLE, J.: Plaintiff-appellant, Sandra Geraci ( appellant ), appeals from the judgment of the Cuyahoga County Court of Common Pleas wherein the trial court granted a motion to dismiss filed by defendants- appellees Walter Conte, Susan Conte (collectively referred to as the Contes ) and the South Euclid-Lyndhurst Board of Education (collectivelyreferred to as the Board of Education ) pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief could be granted. Finding that the complaint is sufficient to survive a Civ.R. 12(B)(6) challenge against the Contes, we reverse and remand the decision of the trial court as to these parties but affirm the decision as it pertains to the Board of Education. Our reasons for doing so follow. The record reflects that on September 6, 1996, appellant filed a class-action complaint1 seeking to represent a class of students who had been invited to and did attend various swimming parties at the home of Walter Conte, a former principal of Brush High School. Besides Walter Conte, appellant named as defendants, Conte's wife (Susan Conte), the South Euclid-Lyndhurst Board of Education and Charles F. Brush High School. The complaint contained allegations of invasion of privacy, emotional distress and negligence against Walter and Susan Conte, as well as reckless disregard for student safety and negligent hiring and supervision against the Board of Education. 1Appellant's motion for class certification was not ruled on by the time appellees' respective motions to dismiss were granted. -3- Appellant's complaint alleged that Walter Conte, in his capacity as principal of Brush High School, invited certain groups of Brush High School students to his home in the summer for swimming parties. Conte required that all students change clothes in a specific room in his house. Unbeknownst to the students, Conte had installed a one-way mirror in the room for the purpose of spying upon the students as they were undressing. In addition, without their knowledge or consent, Conte videotaped female students as they were changing clothes in the aforesaid room. Appellant maintains that the Board of Education allowed school buses, bus drivers or other school employees to be involved in and/or transport students to Contes' home for swimming parties without adequate supervision or promulgated guidelines. On November 6, 1996 the Board of Education filed a motion to dismiss the complaint pursuant to Civ.R. 12(B)(6) maintaining that it was immune from suit pursuant to R.C. 2744.02(A)(1) as it is a political subdivision engaged in a governmental function for which immunity attaches. Similarly, on November 15, 1996, Walter and Susan Conte filed their motion to dismiss the complaint pursuant to Civ. R. 12(B)(6). The Contes maintained that appellant failed to state a claim upon which relief could be granted since the complaint failed to allege that Walter Conte invaded appellant's privacy or that appellant was ever in the room when the spying and/or videotaping occurred. In addition, Susan Conte argued that she had no duty or connection regarding any of the alleged activities of her husband Walter Conte. -4- The trial court granted both motions. This appeal followed wherein appellant assigns the following errors for our review: I. THE TRIAL COURT ERRED IN DISMISSING APPELLANT'S COMPLAINT AGAINST THE CONTE DEFENDANTS PURSUANT TO RULE 12(B)(6), WHICH BARS DISMISSAL UNLESS THERE IS NO SET OF FACTS UNDER WHICH PLAINTIFF COULD RECOVER. II. THE TRIAL COURT ERRED IN DISMISSING APPELLANT'S COMPLAINT AGAINST SOUTH EUCLID- LYNDHURST BOARD OF EDUCATION BECAUSE IMMUNITY IS NOT AVAILABLE FOR THESE CLAIMS. I. In her first assignment of error, appellant contends that, in dismissing her complaint pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted, the trial court improperly ignored her allegations that she was spied upon. Specifically, appellant maintains that her claim for invasion of privacy was improperly dismissed since she is not required to demonstrate that a particular individual observed her through the one-way mirror in a state of undress. Moreover, she further argues that the mere installation of a hidden viewing device constitutes a viable claim for invasion of privacy. 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 Hanson v. Guernsey Ct. Bd. of Commrs. (1992), 65 Ohio St.3d 545; State, ex rel Lee Fisher v. Am. Courts, Inc. (1994), 96 Ohio App.3d 297. It is well settled that when a party files a motion to dismiss for failure to state a claim, all the factual allegations of the complaint must be taken as true and all reasonable inferences must be drawn in favor of the nonmoving -5- party. Byrd v. Faber (1991), 57 Ohio St.3d 56, 60 citing Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192; Thompson v. Central Ohio Cellular, Inc. (1994), 93 Ohio App.3d 530, 538. The issue for this court's determination is whether plaintiff- appellant's complaint includes a statement of claim against Walter and Susan Conte pursuant to Civ.R. 8(A). This court held in Kelley v. East Cleveland (Oct. 28, 1982), Cuyahoga App. No. 44448, unreported at 5, that: All the civil rules require is a short plain statement of the claim that will give the defendant fair notice of the plaintiff's claim and the grounds upon which it is based. In order for a court to properly grant a motion to dismiss for failure to state a claim, it must appear beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. O'Brien v. University Community Tenants Union (1975), 42 Ohio St.2d 242, 245. Moreover, a trial court should not dismiss a complaint based upon doubt that plaintiff will win on the merits. Slife v. Kundtz Properties (1974), 40 Ohio App.2d 179, 182. In Ohio, the tort of invasion of privacy was first recognized by the supreme court in Housh v. Peth (1956), 165 Ohio St. 35, 133 N.E. 2d 340. Paragraph two of the Housh syllabus states: 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. -6- Id. See, also, Rothstein v. Montefiore Home (1996), 116 Ohio App.3d 775; Smith v. Dean's and Dave's Discount Stores (Oct. 30, 1997), Cuyahoga App. No. 71766, unreported at 4. This case involves the intrusion-upon-seclusion branch of the tort of invasion of privacy. In Sustin v. Fee (1982), 69 Ohio St.2d 143, 431 N.E.2d 992, the supreme court set forth the scope of liability for this tort as follows: 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 invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. Id. at 145 (quoting Restatement of the Law 2d, Torts (1977), section 652B); see, also, Rothstein, 116 Ohio App.3d at 778; Hidey v. Ohio State Hwy. Patrol (1996), 116 Ohio App.3d 744, 749-750. Our understanding of the case law as it applies to the intrusion-upon-seclusion branch of this tort allows this court, by analogy, to find that appellant, and those class members she seeks to represent, need not allege that she and the others were actually spied upon in order to defeat a motion to dismiss for failure to state a claim. We reach this conclusion based on Comment a to Section 652B, which states that this form of invasion of privacy does not depend [that] any publicity be given to the person whose interest is invaded. The invasion consists solely of an intentional interference with the person's interest in solitude or seclusion. See, Hidey, 116 Ohio App.3d at 750. Relying on this comment, the New Hampshire Supreme Court in Hamberger v. Eastman (N.H. 1964), -7- 206 A.2d 239, 242 found it unnecessary for the plaintiffs to allege that anyone listened or overheard any sounds originating from the plaintiffs' bedroom and held that the secret installation of a listening device in another's home is an invasion of privacy, without regard to whether it was actually utilized. Accord Carter v. Innisfree Hotel, Inc. (Ala. 1995), 661 So.2d 1174, 1179 (plaintiffs need not prove the actual identity of the peeping Tom, nor need they demonstrate actual use of the spying device); Harkey v. Abate (Md. App. 1983), 346 N.W.2d 74, 76 (the installation of hidden viewing devices alone constituted an interference with seclusion); see, also, New Summit Assoc. Ltd. Partnership v. Nistle (Md. App. 1987), 533 A.2d 1350, 1354 ( To establish an invasion of her privacy, appellee was not required to prove that a particular individual actually observed her while she used the facilities in her bathroom. The intentional act that exposed that private place intruded upon appellee's seclusion. Emphasis in original.) Testing the sufficiency of appellant's complaint based upon the discussion above, appellant's complaint at paragraph 5, states: Plaintiff, Sandra Geraci, brings this action on behalf of herself, and all other persons similarly situated, who changed their clothes or otherwise undressed in the bathroom of the home owned by the Conte defendants *** where a one-way peephole mirror had been installed. Paragraphs 13 through 16 then state that appellant and other potential class members were at the home of Walter Conte when he directed all of them to change clothes in the room where the peeping device was installed. Since the intrusion-upon-seclusion -8- branch of the tort of invasion of privacy does not depend upon any publicity given to the person whose interest is invaded, we find appellant's complaint to sufficiently allege a claim for invasion of privacy. Accordingly, appellant's first assignment of error is well taken. II. In her second assignment of error, appellant argues that, since the Board of Education is a political subdivision, it is subject to the immunities and liabilities established by R.C. 2744 et seq. For purposes of the statute, all acts of a political subdivision are classified as either governmental or proprietary functions. R.C. 2744.02(A)(1). Generally, governmental functions of a political subdivision are immune from liability while proprietary functions are not immune. It is appellant's position that, in this instance, the Board of Education was engaged in a proprietary function (i.e. an informal swimming party at the principal's private residence) the negligent performance of which subjects the Board to liability. R.C. 2744.02(B)(2). In Neelon v. Conte (Nov. 13, 1997), Cuyahoga App. No. 72646, unreported, this court addressed the issue of whether the Board of Education was engaged in a governmental or proprietary function regarding its involvement, or lack thereof, in the swimming parties at the Conte residence. In Neelon, this court stated in pertinent part: The dispute between the parties centers around whether the Board was engaged in a proprietary -9- function or a governmental function at the time of the incident that resulted in Neelon's injury. A proprietary function is defined as one that promotes or preserves the public peace, health, safety, or welfare and that involves activities that are customarily engaged in by a non-governmental person. R.C. 2744.01(G)(1)(b). Proprietary functions include the operation of a hospital, a public cemetery, a utility such as a light, gas, power, or heat plant, a railroad, busline or other transit company, an airport, and a municipal corporation water supply system, a sewer system, a public stadium, auditorium, civic or social center, exhibition hall, arts and crafts center, band or orchestra, or off- street parking facility. A governmental function is one that is imposed upon the state as an obligation of sovereignty and that is performed by a political subdivison voluntarily or pursuant to legislative requirement; a function that is for the common good of all citizens of the state; and a function that promotes or preserves the public peace, health, safety, or welfare; that involves activities that are not engaged in or not customarily engaged in by non-governmental persons and is not specified as a proprietary function. R.C. 2744.01(C)(1)(a)-(c). Governmental functions include the provision of a system of public education and the maintenance and repair of public roads. We conclude that, at the time of the incident which gave rise to Neelon's injuries, the Board was engaged in a governmental function the provision of a system of public education. The Board acknowledges that it was aware of the parties in Conte's home and that it allowed Board school buses to be used to transmit students to Conte's home. The party was an extracurricular activity conducted with the knowledge and cooperation of the Board. * * * Id. at 3, 4. Based upon this court's ruling in Neelon, and after full consideration of all cases cited by the parties, this court finds -10- that the Board of Education was a political subdivision engaged in a governmental function and, as such, immune from liability pursuant to R.C. 2744.01. See Hall v. Fort Frye Local School District Bd. of Ed. (1996), 111 Ohio App.3d 690; Hackathorn v. Springfield Local School Dist. Bd. of Edn. (1994), 94 Ohio App.3d 319, 325. Accordingly, appellant's second assignment of error is not well taken. Judgment of the trial court is affirmed in part, reversed in part and remanded for proceedings consistent with this opinion. -13- This cause is affirmed in part, reversed in part and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that plaintiff-appellant Geraci pay two-thirds of the costs herein taxed and defendants-appellees Contes pay one-third of the costs herein taxed. 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. ANN DYKE, P.J., CONCURS; MICHAEL J. CORRIGAN, CONCURS IN PART AND DISSENTS IN PART (WITH SEPARATE OPINION). TIMOTHY E. McMONAGLE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 clerk per App.R. 22(E). See also, S.Ct. Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72440 SANDRA GERACI : : Plaintiff-Appellant : CONCURRING : AND : DISSENTING OPINION -vs- : : WALTER CONTE, ET AL. : : : Defendants-Appellees : DATE: JUNE 18, 1998 MICHAEL J. CORRIGAN, J., CONCURRING IN PART AND DISSENTING IN PART: While I agree with the conclusion that appellee South Euclid- Lyndhurst School District is immune from liability for the acts alleged in appellant's complaint, I respectfully dissent from the majority opinion as it relates to the reinstatement of appellant's complaint for invasion of privacy against the Conte defendants. It has been suggested that the trial court erred in dismissing appellant's complaint against Walter and Susan Conte pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted. I disagree. The relevant portion of appellant's complaint states: 13. Plaintiff and the class members in this case are individuals (including minor children) who were at the home of defendant Walter Conte and invited to go swimming.2 2It should be noted that, although pled as a class action, appellant's request for class certification was never ruled upon by -2- 14. Defendant Walter Conte required all of them to change clothes in a specific room of the house (hereinafter referred to as the peeping room ). 15. Without their knowledge or consent, defendant Walter Conte installed a peephole by use of a one-way mirror, to peep and spy on them while they were in the peeping room. 16. Additionally, and without their knowledge and consent, defendant Walter Conte installed a video camera which videotaped persons in the peeping room in various states of undress. * * * The majority maintains that these allegations state a viable claim for invasion of privacy, recklessness and emotional distress against Walter and Susan Conte. This conclusion is based upon the premise that a plaintiff need not demonstrate that a particular individual utilized an alleged spying device, but that the mere installation of such a device is sufficient to constitute an invasion of privacy for purposes of surviving a motion to dismiss for failure to state a claim upon which relief can be granted. Four out-of-state cases are cited in support of this contention. See, Hamberger v. Eastman (N.H. 1964), 206 A.2d 239, 242; Carter v. Innisfree Hotel, Inc. (Ala. 1995), 661 So.2d 1174, 1179; Harkey v. Abate (Mich. App. 1983), 346 N.W. 2d 74, 76; New Summit Assoc. Ltd. Partnership v. Nistle (Md. App. 1987), 533 A.2d 1350, 1354. However, these cases are distinguishable from the case at bar in that each cited case dealt with a plaintiff that personally discovered the spying apparatus in question and acted upon the the trial court. -3- discovery. In this case, the appellant does not allege that she ever discovered the hidden viewing device nor does she allege that the device was ever used to spy upon her. She merely alleges that, at some point in time, she used the Contes' bathroom where a hidden viewing device was eventually discovered by another individual on a later date. The appellant herein has pled her complaint in the third person, this is no accident. In essence, appellant asserts a vicarious claim for invasion of privacy against the Contes' through the experiences of other Brush High School students who were, in fact, spied upon in the manner alleged. If appellant's invasion of privacy claim is permitted to proceed under these circumstances, anyone who had ever been to the Conte residence during this time period and used the room in question could also pursue such a claim even where the elements of the tort of invasion of privacy had not been sufficiently pled. In addition, appellant's complaint is completely devoid of any meaningful cause of action against Susan Conte. The mere fact that she resided in the same household as Walter Conte as his spouse does not, in the absence of some other contention, establish a cause of action against her sufficient to survive a Civ.R. 12(B)(6) motion to dismiss the underlying claims. .