Leichtman v. WLW Jacor Communications, Inc.
Nature of the Case
Leichtman (P) sued WLW radio studio, host Bill Cunningham, and host Furman for battery, invasion of privacy, and a violation of a Cincinnati ordinance. The case was dismissed and Leichtman appealed.
Facts
Leichtman (P) appeared on a radio program hosted by WLW’s Bill Cunningham (D) to discuss the effects of smoking and breathing secondary smoke. While on the radio show another host, Furman, lit a cigar and repeatedly blew smoke into Leichtman’s face for the purpose of causing physical discomfort, humiliation and distress. The trial court dismissed the claim of battery from the blowing of the smoke in Leichtman’s face and this appeal resulted.
Issue
- May a battery be committed by even the slightest physical contact if that contact was intended and would be offensive to a person of reasonable sense and dignity?
Holding and Rule of Law
- Yes. A battery may be committed by even the slightest physical contact if that contact was intended and would be offensive to a person of reasonable sense and dignity.
An actor is subject to liability to another for battery if he acts intending to cause a harmful or offensive contact with the person of the other, resulting directly or indirectly with a harmful or offensive contact.
Contact which is offensive to a reasonable sense of personal dignity is offensive contact. Offensive means disagreeable or nauseating or painful because of outrage to taste and sensibilities or affronting insultingness. No matter how trivial the incident, a battery is actionable, even if damages are only one dollar.
In civilized society men must be able to assume that others will do them no intentional injury and that others will commit no intentioned aggressions upon them. Other jurisdictions also have concluded that a person can commit a battery by intentionally directing tobacco smoke at another.
We do not adopt the theory of a ‘smoker’s battery,’ which imposes liability if there is substantial certainty that exhaled smoke will predictably contact a nonsmoker. Nor need we address the substantial certainty issues related to that theory.
Leichtman’s claim for battery is based exclusively on Furman’s commission of a deliberate act. One who is present and encourages or incites commission of a battery by words can be equally liable as a principal. Therefore Furman cannot escape from this charge.
An employer is not legally responsible for the intentional torts of its employees that do not facilitate or promote its business. Whether an employer is liable under the doctrine of respondeat superior because its employee is acting within the scope of employment is ordinarily a question of fact.
Leichtman’s battery claim is sufficient to withstand a motion to dismiss under FRCP 12(B)(6).
Disposition
Reversed in part and remanded in part.