Marianella Medelius

IN THE COMMON PLEAS COURT OF HANCOCK COUNTY, OHIO

DORIAN E. LEONARD *
* Case No.:
Plaintiff *
* Judge:
v. *
*
ABRAHAM WILSON * MOTION FOR SUMMARY JUDGMENT
* OF DEFENDANT ABRAHAM
WILSON
*
*
Defendant *
*

Now comes Defendant, Abraham Wilson, by and through the undersigned counsel and pursuant
to Ohio Civ. R. 56, respectfully moves this Honorable Court for an order granting summary
judgment in his favor. The grounds for this motion are set forth in the following memorandum
in support.

Respectfully submitted,

Marianella Medelius (0000944)

535 N. Main St.
Ada, OH 45810
Telephone: (910) 231-4685
E-mail: m-medelius-marsa@onu.edu
COUNSEL FOR DEFENDANT

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MEMORANDUM IN SUPPORT

I. FACTS

Plaintiff, Dorian E. Leonard, is an undergraduate student at the University of Ada.

Defendant, Abraham Wilson, is plaintiff’s professor at the University. Plaintiff filed the

Complaint in this matter on September 2rd, 2010. In that Complaint, plaintiff alleged that the

defendant created and published a libelous statement concerning plaintiff, resulting in plaintiff’s

defamation and humiliation. Specifically, the plaintiff alleges that on or around Friday August

13th, 2010, defendant wrote on his private office’s desktop computer the following statement:

“Reminder – tell Dean that D.E.L. is selling drugs to students.” Plaintiff alleges that the

statement became published when several fellow students saw the notation on defendant’s

computer when they entered the defendant’s office to play a prank on him. Plaintiff alleges that

a result of this defamation he suffered injuries and has requested the court to award him damages

in an amount exceeding $25,000.

II. ARGUMENT AND LAW

A. Summary Judgment Standard

Summary judgment is proper under Civ.R. 56(C) when (1) no genuine issue of material

fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and

(3) it appears from the evidence that reasonable minds can come to but one conclusion, and with

the evidence viewed most strongly in favor of the party against whom the motion for summary

judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977),

50 Ohio St.2d 317, 327, 364 N.E.2d 267. To survive a motion for summary judgment, the

plaintiff must make a sufficient showing of the existence of every element essential to his case.

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Celotex Corp. v. Catrett (1986), 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265. The Ohio

Supreme Court has held that a party seeking summary judgment on the grounds that a non-

moving party cannot prove its case, bears the initial burden of informing the trial court of the

basis for the motion and must identify those parts of the record which demonstrate the absence of

a genuine issue of material fact on the essential elements of the non-moving party's claims.

Dresher v. Burt (1996), 75 Ohio St. 3d 280, 288, 662 N.E.2d 264. If the moving party has

satisfied its initial burden, the non-moving party then has a reciprocal burden to set forth specific

facts showing that there is a genuine issue for trial and, if the non-moving does not so respond,

summary judgment, if appropriate, shall be entered against the non-moving party. Id.

B. Plaintiff Cannot Establish a Libel Claim

Ohio law defines libel as “a false and malicious publication made with the intent to injure

a person's reputation or expose him to public hatred, contempt, ridicule, shame or disgrace, or to

affect him adversely in his trade or profession.” Thomas H. Maloney & Sons, Inc. v. E.W.

Scripps C., (1974), 43 Ohio App.2d 105, 107, 334 N.E.2d 494. The essential elements in a libel

action under Ohio law are: (a) the statement must be false; (b) the statement must be defamatory

towards the plaintiff; (c) the statement must be in writing; (d) the statement must be published by

defendant to a third party; and (e) the defendant must be proven guilty of some degree of fault.

Hersch v. E. W. Scripps Co., (1981), 3 Ohio App. 3d 367, 374-375, 445 N.E.2d 670. The Ohio

Supreme Court has provided that for all prima facie elements of libel, excluding the element of

fault, the proper burden of proof is the preponderance of the evidence standard. For the element

of fault the proper burden of proof is the clear and convincing standard. Lansdowne v. Beacon

Journal Pub. Co. (1987), 32 Ohio St. 3d 180, 181, 512 N.E.2d 979. Plaintiff has failed to set

forth evidence creating genuine issues of material fact with regard to several of the

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aforementioned elements of libel. No reasonable minds could come to the conclusion that

plaintiff has met his burden in proving each and every element of his libel action.

i. Plaintiff Has Not Established that the Statement was About Plaintiff

The element that defendant made a false statement concerning plaintiff has not been met

by the preponderance of the evidence. Lansdowne v. Beacon Journal Pub. Co. (1987), 32 Ohio

St. 3d 180, 181, 512 N.E.2d 979. In this case, the alleged defamatory statement states:

“Reminder – tell Dean that D.E.L. is selling drugs to students.” The University of Ada is

composed by a large student body, hundreds of faculty members, and a large number

administrative and custodial staff. By using the initials “D.E.L.”, defendant could have been

referring to several other individuals besides plaintiff. Plaintiff has failed to set forth any

evidence to support his contention that the initials “D.E.L.” refer to him. Upon review of the

record, it is clear that plaintiff has failed to meet the burden of demonstrating that the initials

“D.E.L.” referred to himself by the preponderance of the evidence. No reasonable minds could

come to the conclusion that defendant’s statement was about plaintiff.

ii. Plaintiff Has Not Established that the Statement was False

Even if the statement concerned plaintiff, which it did not, plaintiff has failed to meet his

burden that the statement was false. An essential element of libel is that the statement published

must be false. Plaintiff has the burden of proving by the preponderance of the evidence that any

alleged statement at issue is false. Lansdowne v. Beacon Journal Pub. Co., (1987), 32 Ohio St.

3d 180, 181, 512 N.E.2d 979. The defendant does not have the burden of proving the truth of

any statement. The record illustrates that the plaintiff has not set forth any evidence to prove the

falsity of the statement, namely, that he was not involved in the sale of drugs to fellow students.

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iii. Plaintiff cannot prove that Defendant Published the Alleged Defamatory Statement
to Third Parties or that he Acted with the Required Degree of Fault in doing
so.

The U.S. Supreme Court has held that a private individual plaintiff cannot recover for

libel unless such plaintiff is able to prove that the defendant not only published the allegedly

defamatory statement to third parties, but that he was “at fault” when he published such

statement. Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 347, 94 S. Ct. 2997, 41 L. Ed. 2d

789. Ohio law has established that in order for the defendant to be at fault, he must have

published the statement with either express or actual malice, or negligence. Horvath v.

Telegraph (1982), 8 Media L. Rep. (BNA) 1657, Ohio App. LEXIS 15776. Here, the plaintiff

has failed to set forth evidence establishing that the defendant published the statement to third

parties. Defendant wrote the notation as a personal reminder to communicate the Dean of

potential criminal activity occurring at the university. The students that saw the notation on

defendant’s computer were not supposed to be in defendant’s office. It is undisputed that

defendant’s office door was closed and that the students wrongfully entered his office with the

intention of playing a prank on him. The plaintiff has clearly failed to set forth evidence

demonstrating that this was an intentional publication done with actual or express malice. No

reasonable fact finder can determine that the publication was intentionally published under the

facts presented.

Under Ohio law, a plaintiff can also meet the element of fault by demonstrating that the

defendant was negligent in publishing the statement. Importantly, Ohio requires plaintiff to

prove by clear and convincing evidence that the defendant was negligent in “fail[ing] to act

reasonably in attempting to discover the truth or falsity or defamatory character of the

publication.” Landsdowne v. Beacon Journal Pub. Co. (1987), 32 Ohio St. 3d 176, 178-80, 512

N.E.2d 979. Strong evidence of negligence is required to meet this burden. Clear and

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convincing evidence “is that measure or degree of proof which is more than a mere

‘preponderance of evidence,’ but not to the extent of such certainty as is required ‘beyond a

reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a

firm belief or conviction as to the facts sought to be established.” Cross v. Ledford (1954), 161

Ohio St. 469, 477, 120 N.E. 2d 118. In determining whether a defendant has been negligent,

courts have looked at the defendant’s state of mind and asking whether the defendant had

reasonable grounds for believing that the communication was true. Bays v. Northwestern Local

School Dist. (1999), 1999 Ohio App. LEXIS 3343, *12 (quoting 3 Restatement of the Law 2d,

Torts (1977) 227, Section 580(B), Comment g). The record illustrates that plaintiff has failed to

meet his high burden by not setting forth evidence that the defendant had no reasonable grounds

to believe that “D.E.L.” was selling drugs to students. No reasonable minds can come to the

conclusion that defendant was at fault, either through express/actual malice or negligence, when

the statement became published.

C. Plaintiff Has Failed To Set Forth Any Evidence Establishing That Defendant’s

Statement was the Proximate Cause of his Alleged Injuries

In a defamation action, the plaintiff has the burden of proving that the statement was

either defamatory per se or caused special harm to the plaintiff, and that defendant’s actions were

the proximate cause of such injuries. Davis v. Jacobs (1998), 126 Ohio App. 3d 580, 581, 710

N.E.2d 1185. In this case the statement states that “D.E.L” sold drugs to students. The Ohio

Supreme Court has established that a libelous statement accusing an individual of criminal

conduct is libelous per se, and therefore damages are presumed. Akron-Canton Waste Oil v.

Safety-Kleen Oil Serv. (1992), 81 Ohio App. 3d 591, 601, 611 N.E.2d 955. That a statement is

libelous per se, however, does not relieve the plaintiff of proving the other critical elements of a

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defamation action. Id. The plaintiff still has the burden of proving the other elements of libel:

that the statement was about him, that the statement was false, that defendant published the

statement to third parties, and that defendant was negligent in doing so or acted with express

malice. As discussed above, plaintiff has clearly failed to meet his burden concerning the

essential elements of a libel action.

In addition, as in any tort action, the plaintiff must demonstrate that there is proximate

cause between his injuries and defendant’s actions. In this case, the plaintiff has failed to set

forth evidence that defendant was the proximate cause of his alleged injuries. First, the fact that

students entered the defendant’s office without permission is clearly an intervening cause. It is

settled law that the causal connection between a defendant's act and the resulting damage may be

broken by an intervening cause. Queen City Terminals, Inc. v. Gen. Am. Transp. Corp. (1995),

73 Ohio St.3d 609, 619, 653 N.E.2d 661. An intervening cause has several requirements: it must

1) be independent of the original act, 2) be a voluntary human act or an abnormal natural event,

and 3) occur in time between the original act and the harm. Id. The students’ action of

wrongfully entering defendant’s office, reading the statement, and publishing it to third parties

was a voluntary act independent from the defendant’s original act of writing the notation on his

computer, and it occurred between the time defendant wrote the notation and the time the

statement was allegedly published.

If the intervening act was foreseeable, it will not break the causal chain. Id. at 620.

Plaintiff, in the instant action has also failed to demonstrate foreseeability. No evidence has been

produced establishing by preponderance of the evidence that acts involving university students

wrongfully entering professors’ offices with the intention of playing pranks were foreseeable by

defendant. Plaintiff did not offer any evidence of similar previous incidents and has therefore

failed to prove foreseeability.

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Under the evidence presented, no reasonable minds could reach the conclusion that

defendant’s notation was the proximate cause of the alleged injuries sustained by plaintiff.

D. Plaintiff Cannot Establish that the Statement Was Done Without Privilege

Even if plaintiff were able to establish the prima facie elements of defamation, which he

has failed to do, the communication at issue here is protected by a qualifiedly privilege based on

public policy. In defamation cases, to fall within the protection of the privilege, the defendant

must establish that: (1) he acted in good faith; (2) there was an interest to be upheld; (3) the

statement was limited in its scope to the purpose of upholding that interest; (4) the occasion was

proper; and (5) the publication was made in a proper manner and only to proper parties. Hahn v.

Kotten (1975), 43 Ohio St.2d 237, 244, 331 N.W.2d 713.

Defendant has properly raised the defense of qualified privilege in his answer and is now

raising it in the present motion. Based on the record, it is clear that defendant meets the required

elements of qualified privilege. The first element, that the statement was made in good faith, is

clearly met. The record holds no evidence of ill will or malice on the part of defendant. The

second element is also met by defendant. There was a clear interest that the defendant sought to

uphold: safety at his workplace. A communication made in good faith on a matter of common

interest between an employer and an employee is protected by a qualified privilege from claims

of defamation. Stearns v. Ohio Savings Assn. (1984), 15 Ohio App.3d 18, 20, 472 N.E.2d 372.

Maintaining a drug-free university is a clear common interest between defendant and the Dean.

In addition to the employer-employee privilege, defendant’s position as educator affords him

additional grounds for privilege. As a matter of public policy, educators share an interest in the

morality and well-being of their students and their institutions. This is clearly portrayed by

Section 22 of the Drug-Free Schools and Communities Act Amendment of 1989, which provides

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that institutions of higher education that receive funds or any other form of financial assistance

under any federal program, such as the University of Ada, must set standards of conduct that

prohibit the unlawful possession, use, or distribution of illicit drugs by students and employees

on its property. 20 U.S.C. § 1011; 34 C.F.R. § 86.1, 55 Fed. Reg. 33,580 (Aug. 16, 1990).

The third element that must be met is that the statement was limited in its scope to the purpose of

upholding the interest. Defendant’s statement was limited to his interest in promoting safety at

the university. Besides the reference to “D.E.L” selling drugs to students, no further allegations

were made concerning the individual. The fourth and fifth elements are also met, since the

statement clearly indicated that it would have been transmitted exclusively to the Dean, a proper

party who also has an interest in maintaining and promoting a drug-free environment at the

university. Therefore, the statement cannot be deemed “improper” for purposes of a qualified

privilege analysis.

III. CONCLUSION

Based upon a review of the applicable law and the facts and circumstances of the case,

Defendant Abraham Wilson has established that he is entitled to judgment as a matter of law.

Defendant requests that this Court GRANT his Motion for Summary Judgment under Ohio Rule

of Civil Procedure 56 and enter judgment in his favor on Plaintiff’s entire complaint.

Respectfully Submitted,

Marianella Medelius (0000944)

435 N. Main St.
Ada, OH 45810
Telephone: (910) 231-4685
E-mail: m-medelius-marsa@onu.edu
COUNSEL FOR DEFENDANT

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CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the foregoing Motion for Summary
Judgment was sent by regular U.S. mail, postage prepaid, this 16th day of November, 2010 to
Pepe Lepieux, Attorney for Plaintiff, 666 S. Main St, Ada, OH 45810.

Marianella Medelius (0000944)

435 N. Main St.
Ada, OH 45810
Telephone: (910) 231-4685
E-mail: m-medelius-marsa@onu.edu
COUNSEL FOR DEFENDANT

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