[Cite as Jones v. Ohio Bur. of Workers' Comp., 2011-Ohio-1855.]


                                                       Court of Claims of Ohio
                                                                          The Ohio Judicial Center
                                                                  65 South Front Street, Third Floor
                                                                             Columbus, OH 43215
                                                                   614.387.9800 or 1.800.824.8263
                                                                              www.cco.state.oh.us




SANDRA JONES

       Plaintiff

       v.

OHIO BUREAU OF WORKERS’
COMPENSATION

       Defendant
       Case No. 2010-09990

Judge Joseph T. Clark

DECISION




        {¶ 1} On September 15, 2010, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B). On December 30, 2010, plaintiff filed a response with leave of
court. On January 10, 2011, defendant filed a motion for leave to file a reply, which is
GRANTED instanter. On January 14, 2011, the court conducted an oral hearing on
defendant’s motion for summary judgment.
        {¶ 2} The basis for defendant’s motion is that plaintiff lacks standing to sue in
this matter. “Lack of standing challenges a party’s capacity to bring an action and is
properly raised by a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon
which relief can be granted.” Cramer v. Javid, Franklin App. No. 10AP-199, 2010-Ohio-
5967, ¶10. Therefore, defendant’s motion shall be construed as a motion to dismiss
pursuant to Civ.R. 12(B)(6).
        {¶ 3} In construing a motion to dismiss pursuant to Civ.R. 12(B)(6), the court
must presume that all factual allegations of the complaint are true and make all
reasonable inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co.
(1988), 40 Ohio St.3d 190. Then, before the court may dismiss the complaint, it must
appear beyond doubt that plaintiff can prove no set of facts entitling her to recovery.
O’Brien v. Univ. Community Tenants Union (1975), 42 Ohio St.2d 242.
       {¶ 4} According to the complaint, plaintiff filed a claim with defendant for
workers’ compensation benefits in April 2007. Plaintiff states that defendant learned in
November 2007 that one of its employees had secretly and improperly provided a
private investigator, Stedson McIntyre, with information from claimants’ files for several
years and that plaintiff was one of the claimants whose information was furnished to
McIntyre. According to plaintiff, McIntyre had been hired by her employer to investigate
her claim.
       {¶ 5} Plaintiff states that defendant subsequently sent her a letter to notify her
that her claim information had been improperly accessed. The letter stated, in part, that
“[t]he records accessed contained personal information from your claim, including your
address and social security number,” and that “[d]efendant believes it is important to
notify you regarding this incident and inform you of the potential exposure for identity
theft.” Plaintiff states that as a result of receiving defendant’s letter and learning that her
claim information had been compromised, she retained the services of Lifelock, a credit
monitoring company, and also suffered mental distress.
       {¶ 6} Plaintiff brings this action on behalf of herself and others similarly situated.
Plaintiff asserts claims of negligence and invasion of privacy, and seeks damages for
the “heightened risk of identity theft,” the cost of professional credit monitoring services,
“aggravation, distress, [and] anxiety.” Defendant argues that plaintiff lacks standing to
sue because she did not suffer an injury in fact.
       {¶ 7} “Elements of standing are an indispensable part of a plaintiff's case. Lujan
v. Defenders of Wildlife (1992), 504 U.S. 555, 561, 112 S.Ct. 2130, 2136, 119 L. Ed. 2d
351. Initially, the plaintiff must have suffered an injury in fact, defined as an invasion of
a legally protected interest that is concrete and particularized, as well as actual or
imminent, not hypothetical or conjectural. Id. at 560.” Bourke v. Carnahan, 163 Ohio
App.3d 818, 2005-Ohio-5422, ¶10.
       {¶ 8} “That a suit may be a class action * * * adds nothing to the question of
standing, for even named plaintiffs who represent a class must allege and show that
they personally have been injured, not that injury has been suffered by other
unidentified members of the class to which they belong and which they purport to
represent.” Woods v. Oak Hill Community Med. Ctr. (1999), 134 Ohio App.3d 261, 269,
citing Simon v. E. Ky. Welfare Rights Org. (1976), 426 U.S. 26, 40, fn. 20.
        {¶ 9} “In the identity theft context, courts have embraced the general rule that
an alleged increase in risk of future injury is not an ‘actual or imminent’ injury.
Consequently, courts have held that plaintiffs do not have standing, or have granted
summary judgment for failure to establish damages in cases involving identity theft or
claims of negligence and breach of confidentiality brought in response to a third party
theft or unlawful access to financial information from a financial institution.” Key v.
DSW, Inc. (2006), 454 F.Supp.2d 684, 689. (Citations omitted.)
        {¶ 10} Accordingly, to the extent that the damages alleged by plaintiff include a
risk of future harm and the cost of credit monitoring, which aims to prevent future harm,
such damages are hypothetical and do not confer standing to sue in this matter. See
Kahle v. Litton Loan Servicing LP (2007), 486 F.Supp.2d 705; Kulpa v. Ohio Univ.
(Sept. 13, 2007), Ct. of Cl. No. 2006-04202.
        {¶ 11} However, as previously stated, plaintiff’s alleged damages also include
mental distress occasioned upon her learning that her claim information had been
improperly accessed. Plaintiff asserts that her mental distress alone is sufficient to
confer standing to pursue a claim for invasion of privacy.1
        {¶ 12} The “wrongful intrusion” type of invasion of privacy, upon which plaintiff
premises her claim, is defined as “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.”2 Housh v. Peth (1956), 165 Ohio St. 35, paragraph two
of the syllabus. (Emphasis added.) “The interest protected is primarily a mental one
rather than economic or pecuniary. * * * Actual damage is not necessary.” LeCrone v.


1
 Plaintiff’s complaint does not support a claim for negligent infliction of emotional distress inasmuch as
such claims are limited to instances “where the plaintiff has either witnessed or experienced a dangerous
accident or appreciated the actual physical peril.” Heiner v. Moretuzzo, 73 Ohio St.3d 80, 86-87, 1995-
Ohio-65.
2
 Four types of invasion of privacy are recognized under Ohio law: 1) wrongful intrusion upon the
seclusion of another; 2) public disclosure of one’s private affairs; 3) unwarranted appropriation of one’s
personality; and 4) publicity that places another in a false light. See Housh, supra; Welling v. Weinfeld,
113 Ohio St.3d 464, 2007-Ohio-2451, syllabus.
Ohio Bell Telephone Co. (1963), 120 Ohio App. 129, 131-32; see also Restatement
(Second) of Torts, § 652H (1977) (A plaintiff who has established an unlawful invasion
of privacy is entitled to recover damages for “harm to his interest in privacy,” “mental
distress” resulting from the invasion, and “special damage of which the invasion is a
legal cause”).
          {¶ 13} However, even if plaintiff were to have standing to bring a claim of
wrongful intrusion, a defendant is subject to liability for this tort “only when he has
intruded into a private place, or has otherwise invaded a private seclusion that the
plaintiff has thrown about his person or affairs.” York v. Gen. Elec. Co. (2001), 144
Ohio App. 3d 191, 194, quoting Restatement of the Law 2d, Torts (1977), Section
652(B), comment c.         “The ‘intrusion’ tort is not dependent upon publicity of private
matters, but is akin to trespass in that it involves intrusion or prying into the plaintiff's
private affairs. Examples would be wiretapping, watching or photographing a person
through windows of his residence, and the kind of harassing collection practices
involved in Housh v. Peth, supra.” Killilea v. Sears, Roebuck & Co. (1985), 27 Ohio
App.3d 163, 166.
          {¶ 14} Plaintiff does not allege that defendant perpetrated an intrusion into the
sphere of any private seclusion which she had placed about her person or affairs.
Rather, defendant possessed plaintiff’s claim information from the beginning and thus
cannot be said to have invaded plaintiff’s private affairs. See Biddle v. Warren Gen.
Hosp. (March 27, 1998), Trumbull App. No. 96-T-5582.
          {¶ 15} While plaintiff’s invasion of privacy claim involves an alleged disclosure of
private information, plaintiff also fails to state a claim for the “public disclosure of private
facts” type of invasion of privacy. This tort requires, inter alia, a disclosure “of a public
nature,” which means a communication “to the public at large, or to so many persons
that the matter must be regarded as substantially certain to become one of public
knowledge as opposed to ‘publication’ as that term of art is used in connection with
liability for defamation as meaning any communication by the defendant to a third-
party.”     Killilea, supra.   Plaintiff’s allegations concern a lone, covert publication to
McIntyre, not a publication to the public at large or a publication substantially certain to
become public knowledge.
      {¶ 16} Based upon the foregoing, the court finds that plaintiff has failed to state a
claim upon which relief can be granted.       Accordingly, defendant’s motion shall be
granted such that plaintiff’s complaint shall be dismissed pursuant to Civ.R. 12(B)(6).



                                              Court of Claims of Ohio
                                                                        The Ohio Judicial Center
                                                                65 South Front Street, Third Floor
                                                                           Columbus, OH 43215
                                                                 614.387.9800 or 1.800.824.8263
                                                                            www.cco.state.oh.us




SANDRA JONES

      Plaintiff

      v.

OHIO BUREAU OF WORKERS’
COMPENSATION

     Defendant
      Case No. 2010-09990

Judge Joseph T. Clark

ENTRY OF DISMISSAL




      An oral hearing was conducted in this case upon defendant’s motion for
summary judgment.         For the reasons set forth in the decision filed concurrently
herewith, defendant’s motion for summary judgment is GRANTED such that plaintiff’s
complaint is DISMISSED pursuant to Civ.R. 12(B)(6). Court costs are assessed against
plaintiff. The clerk shall serve upon all parties notice of this judgment and its date of
entry upon the journal.



                                         _____________________________________
                                         JOSEPH T. CLARK
                                         Judge
cc:


Emily M. Simmons                                         Frank L. Gallucci III
Randall W. Knutti                                        55 Public Square, Suite 2222
Assistant Attorneys General                              Cleveland, Ohio 44113
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

John P. Hurst
W. Craig Bashein
Terminal Tower, 35th Floor
50 Public Square
Cleveland, Ohio 44113-2216

RCV/cmd/Filed March 23, 2011/To S.C. reporter April 12, 2011
