[Cite as Moran v. Lewis, 2018-Ohio-4423.]



                Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA



                                 JOURNAL ENTRY AND OPINION
                                         No. 106634




                                            RICHARD MORAN

                                                       PLAINTIFF-APPELLANT

                                                 vs.

                                        MICHAEL A. LEWIS

                                                       DEFENDANT-APPELLEE




                                              JUDGMENT:
                                               AFFIRMED



                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                     Case No. CV-14-832343

        BEFORE: S. Gallagher, J., Boyle, P.J., and Keough, J.

        RELEASED AND JOURNALIZED: November 1, 2018
ATTORNEY FOR APPELLANT

Mary Jo Hanson
55 Public Square, Suite 1550
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Joseph A. Ferrante
Lavell O. Payne
Nationwide Insurance Co.
4125 Highlander Parkway, Suite 200
Richfield, Ohio 44286


Also listed:

For Kevin Russell

S. Robert E. Lazzaro
Costanzo & Lazzaro
13317 Madison Avenue
Lakewood, Ohio 44107




SEAN C. GALLAGHER, J.:

       {¶1}    Richard Moran appeals the entry of judgment upon the pleadings entered in

Michael Lewis’s favor.    Moran claims that Lewis, a private investigator hired to conduct

surveillance of Moran’s activities for a then-pending civil action, violated Moran’s “right to

privacy” and trespassed by installing global positioning system (“GPS”) tracking devices on two

of Moran’s vehicles. According to Moran, he has an expectation of privacy while traveling on

public roads and that privacy was violated by Lewis’s conduct. Moran further argues that such a

violation should essentially amount to a per se invasion of privacy under Ohio law. As much as
Moran would prefer to argue that he has a recognized expectation of privacy while traveling on

public roads, this case turns on the allegations in the complaint or, better stated, the failure to

properly plead an invasion of privacy claim under Ohio law.

       {¶2} Before the trial court granted judgment in favor of Lewis, Moran joined Lewis in

seeking leave to file dispositive motions on whether the complaint set forth a viable claim for

invasion of privacy and trespass. Thus, any issues with the procedural posture of the dispositive

ruling would be, at best, invited error. Further, in this appeal Moran asked us to disregard any

perceived error in granting judgment in favor of Lewis upon the claims for trespass. The only

issue before this court is whether the allegations that a private citizen installed a GPS tracking

device on another individual’s motor vehicle to track its movement on public roads sufficiently

pled a violation of the right to seclusion that is recognized as an invasion of privacy under Ohio

law. It does not, and therefore, the allegations in the complaint failed to set forth a claim upon

which relief could be granted.

       {¶3} We review a ruling on a motion for judgment on the pleadings de novo.        Thornton

v. Cleveland, 176 Ohio App.3d 122, 2008-Ohio-1709, 890 N.E.2d 353, ¶ 3 (8th Dist.). Motions

for judgment on the pleadings are governed by Civ.R. 12(C), which states as follows: “After

the pleadings are closed but within such time as not to delay the trial, any party may move for

judgment on the pleadings.” “In order to be entitled to a dismissal under Civ.R. 12(C), it must

appear beyond doubt that [the nonmovant] can prove no set of facts warranting the requested

relief, after construing all material factual allegations in the complaint and all reasonable

inferences therefrom in [the nonmovant’s] favor.” State ex rel. Toledo v. Lucas Cty. Bd. of

Elections, 95 Ohio St.3d 73, 74, 2002-Ohio-1383, 765 N.E.2d 854. Parties may seek a dismissal

for failure to state a claim within the context of Civ.R. 12(C). When reviewing a Civ.R.
12(B)(6) motion to dismiss under this framework, we must accept the material allegations of the

complaint as true and make all reasonable inferences in favor of the plaintiff. Johnson v.

Microsoft Corp., 106 Ohio St.3d 278, 2005-Ohio-4985, 834 N.E.2d 791, ¶ 6.

       {¶4} In Ohio, an actionable invasion of privacy is (1) the unwarranted appropriation or

exploitation of one’s personality; (2) the publicizing of one’s private affairs with which the

public has no legitimate concern; or (3) 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. Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340 (1956), paragraph two of

the syllabus. Invasion of privacy under Ohio law is generally derived from the Restatement of

Torts. Under Restatement of the Law 2d, Torts, Section 652B (1977), a defendant may be liable

for intrusion upon another’s seclusion if the defendant intentionally intrudes upon the “solitude

or seclusion” or the private affairs or concerns of another, and if such an intrusion would be

highly offensive to a reasonable person. Moran invoked that third prong of the invasion of

privacy claim as stated in Housh; however, Moran failed to allege any intrusion, much less a

wrongful one, into his private activities or his right to seclusion.

       {¶5} Instead, Moran claims that the installation of the GPS tracking device was a per se

invasion into his private activities and the law should be expanded to prevent private citizens

from using modern technology to track another’s travels on public roads. According to Moran,

the act of attaching a GPS device to another’s vehicle is prima facie evidence supporting the

invasion of privacy claim. He “urges this Court to reject the old thinking that you cannot have

privacy driving your car along Ohio’s highways.” Moran has not cited any authority supporting

the proposition that, as a matter of law, a private citizen tortiously invades the privacy of another

merely through the act of attaching a GPS device on another’s vehicle for the purpose of tracking
public movements. App.R. 16(A)(7); see, e.g., Turner v. Am. Car Rental, Inc., 92 Conn.App.

123, 130, 884 A.2d 7 (2005) (acknowledging the lack of legal authority demonstrating an

expectation of privacy on a public highway). In order to properly plead an invasion of privacy

claim, there must be allegations that the tracking invaded the seclusion or private affairs of

another. See Troeckler v. Zeiser, S.D.Ill. No. 14-cv-40-SMY-PMF, 2015 U.S. Dist. LEXIS

27594, 7 (Mar. 5, 2015) (plaintiffs failed to plead that the placement of the GPS led to the

disclosure of private facts); Villanova v. Innovative Investigations, Inc., 420 N.J. Super. 353, 21

A.3d 650, 652 (N.J.App.2011) (no evidence that the vehicle was driven into a private or secluded

location where one would have a reasonable expectation of privacy). The act of attaching a GPS

device does not in and of itself constitute the invasion into one’s seclusion or private affairs.

       {¶6} Moran alleges that Lewis (1) attached a GPS tracking device to two of Moran’s

vehicles deceptively without his consent, (2) had no right to enter the private property to install

the devices, (3) recorded the locations of Moran’s vehicles on a continuing basis, and (4) hid the

information from Moran. However, there are no allegations that the recording of the tracking

information gleaned any private information or that an intrusion into Moran’s solitude, seclusion,

or private affairs was accomplished. Further, there are no allegations that the GPS tracking of

Moran’s public travels would be highly offensive to a reasonable person when the tracking

occurs with a device rather than physically tailing the vehicles. In this case, the complaint fails

to state a claim upon which relief can be granted — the plaintiff failed to allege facts that would

satisfy the elements of an invasion of privacy claim as articulated in Housh.

       {¶7} In support of Moran’s request to expand the invasion of privacy claim to encompass

his generalized allegations that fail to allege each element of an invasion of privacy tort claim, he

cites the Supreme Court’s decision in United States v. Jones, 565 U.S. 400, 132 S.Ct. 945, 181
L.Ed.2d 911 (2012), in which it was held that law enforcement’s act of trespass, by placing a

GPS tracking device on a suspect’s vehicle, was an unreasonable search. According to Moran,

however, Jones stands for the proposition that citizens have an expectation of privacy while

traveling on public roads, as articulated in Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507,

19 L.Ed.2d 576 (1967). He is mistaken. Justice Antonin Scalia, writing for the majority in

Jones, specifically rejected the government’s claim that the expectation of privacy line of cases

applied or impacted the determination of whether the installation of a GPS tracking device

violated the Fourth Amendment. Jones at 405-406; but see State v. White, 5th Dist. Fairfield

No. 2010-CA-60, 2011-Ohio-4526, ¶ 66 (GPS technology infringes on the reasonable

expectation of privacy). Jones did not recognize an expectation of privacy in this context.

         {¶8} In the alternative, Moran asks to supplant the law stated in Housh, 165 Ohio St. 35,

133 N.E.2d 340, and the Restatement of Torts with a bad faith or corrupt motive standard —

according to Moran any attachment of a GPS tracking device that was done in bad faith or with a

corrupt motive would be an invasion of privacy regardless of whether the device was used to

track public or private movements. In support of this new standard, Moran cites Sustin v. Fee,

69 Ohio St.2d 143, 145, 431 N.E.2d 992 (1982).

         {¶9} That case is not applicable to the particular facts of this case, and it did not create a

new standard for invasion of privacy. Sustin reiterated Ohio’s reliance on the Restatement of the

Law 2d, Torts, Section 652B, as the foundation for the invasion of privacy claims as set forth in

Housh.     Sustin merely added an additional caveat to address the situation in which the

surveillance is conducted by a public official acting within the scope of his or her official duties.

In that situation, an additional pleading requirement is necessary because in order to avoid

immunity, the plaintiff must allege that the official acted in bad faith or with a corrupt motive.
Id. In light of the fact that Lewis is a private citizen, Sustin does not impact our analysis, nor

does it create a new standard to review invasion of privacy claims. The elements of an invasion

into another’s seclusion claim as articulated in Housh have not been altered.

       {¶10} Under Ohio law, in order to properly plead an invasion of privacy claim premised

on the invasion into another’s seclusion, at a minimum, there must be allegations demonstrating

an intrusion, physical or otherwise, into another’s solitude or private affairs. Housh at paragraph

two of the syllabus. The Restatement of the Law 2d, Torts, Section 652B, provides that “‘the

defendant is subject to liability under the rule stated in this Section 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.’”       Salupo v. Fox, Inc., 8th Dist. Cuyahoga No. 82761,

2004-Ohio-149, ¶ 23, quoting Haynik v. Zimlich, 30 Ohio Misc.2d 16, 22, 508 N.E.2d 195, 201

(1986). In Salupo, it was held that the failure to plead particular facts that the defendant

wrongfully intruded upon the plaintiff’s private affairs was dispositive — in such a situation the

complaint fails to set forth a claim upon which relief could be granted and the case should be

dismissed. Id. at ¶ 23-24.

       {¶11} In this case, Moran’s complaint merely alleges that Lewis attached a GPS tracking

device to two of Moran’s vehicles and such conduct was a per se violation of Moran’s privacy

because Ohioans should have an expectation of privacy while traveling on public roads. Such

an allegation is insufficient to state a claim for invasion of privacy under Ohio law. The failure

to plead facts, private or otherwise, establishing that the defendant wrongfully intruded into the

seclusion or private affairs of the plaintiff is fatal to the pleading. The mere act of monitoring

another’s public movements through the attachment of a GPS tracking device is not, in and of

itself, sufficient to state an invasion of privacy claim. As it stands under Ohio law, liability for
intrusion into another’s seclusion or private affairs does not exist where the defendant observes

or records a person in a public place. Salupo at ¶ 25, citing Pollock v. Rashid, 117 Ohio App.3d

361, 369, 690 N.E.2d 903 (1st Dist.1996).

       {¶12} The increased use of readily available technology has transformed an individual’s

expectations of privacy. We appreciate, and empathize with, Moran’s concerns. Nevertheless,

as an intermediate appellate court of law, we cannot change Ohio’s existing tort standard for

invasion of privacy. Although we are sensitive to individual privacy concerns, it is the role of

the Ohio legislature to expand the right to privacy to include a prohibition against tracking

devices as used in this case. See, e.g., Alaska Stat. 11.41.270(b)(4)(H) (prohibiting the use of

global positioning or other similar devices to monitor or track a person); Cal.Pen.Code 637.7

(prohibiting the use of electronic tracking devices to determine the location or movement of a

person); 720 ILCS 5/21-2.5(b) (prohibiting the use of an electronic tracking device to determine

another’s movement or locations). Moving Ohio to a per se standard, in the effort to advance

policy considerations, is beyond the role of this court. Under the existing tort law, Moran

needed to plead facts demonstrating the intrusion into his seclusion or private affairs along with

facts demonstrating mental suffering, shame, or humiliation. Housh, 165 Ohio St. 35, 133

N.E.2d 340.

       {¶13} According to Moran, the GPS tracking devices in this case recorded his movements

on public roads and there were no allegations that the recording or dissemination of the

information intruded into Moran’s solitude, seclusion, or private affairs. The solitary claim that

the use of the GPS device was a per se invasion of privacy is overruled. The complaint fails to

set forth a claim for invasion of privacy under Ohio law, and the judgment on the pleadings in

favor of Lewis is affirmed.
       It is ordered that appellee recover from appellant 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 common pleas

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.




SEAN C. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
