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Worpenberg v. Kroger Co.3/8/2002
r false accusations of theft * * *." Identifying this as a claim of "negligent damage to reputation," as opposed to a claim of defamation, Worpenberg argues that the claim was governed by a two-year statute of limitations under the Ohio Supreme Court's holding in Lawyer's Co-Operative Publishing Company v. Muething (1992), 65 Ohio St.3d 273, 603 N.E.2d 969.
Initially we note that Worpenberg's reliance on Muething begs the question whether the Ohio Supreme Court in that case recognized "negligent damage to reputation" as a distinct tort. In Muething, the plaintiff sought to recover for damage to his professional reputation as a result of the defendant's negligence in a product-liability case.
Observing that the plaintiff's claim for damage to his reputation was "indistinguishable from his claim for intentional infliction of emotional distress, and, therefore, could not be maintained in the absence of an assertion that he feared or saw some quantifiable physical loss," the court applied a two-year statute of limitations pursuant to R.C. 2305.10. But the court's holding fell significantly short of recognizing a separate claim for reputational damage on a theory of ordinary negligence.
According to Kroger, the trial court was correct in applying a one- year statute of limitations to this claim, pursuant to R.C. 2305.09(D), because it was, in essence, a "disguised defamation" claim. This argument raises the question of when a claim for reputational harm sounds in defamation. See Silbaugh, Sticks and Stones Can Break My Name: Nondefamatory Negligent Injury to Reputation (1992), 59 U.Chi.L.Rev. 865, 868. Silbaugh identifies two vastly different approaches to this issue. The first approach is simply to treat any claim for damage as necessarily a defamation claim-the "defamation as the only game in town" approach. The second approach is to assume without analysis that injury to reputation is a recoverable item of damage from negligent conduct-an approach represented by "a small number of recent cases in different jurisdictions." Id. at 868, 870. The second approach divides itself into two different groups: (1) courts that limit plaintiffs to defamation claims if an explicit or implicit element of communication is present, and (2) courts that allow negligence claims to survive in spite of a communication if the complaint addresses other, non-communicative negligent conduct by the defendant. Id. at 870-874.
Significantly, Silbaugh observes that some plaintiffs attempt to characterize their claims outside of defamation to avoid the statute of limitations. Id. at 877. The author disapproves of such a practice, arguing that plaintiffs should not be allowed to avoid otherwise applicable procedural requirements "if their claims are otherwise complete under defamation." Id. A claim is "complete under defamation" if, under the facts, it hinges upon the defendant communicating something by speech or conduct. Id. As defined in the Restatement of the Law 2d, Torts, "communication" is a term of art used to "denote the fact that one person has brought an idea to the perception of another." 1 Restatement of the Law 2d, Torts (1977), Section 559, Comment.
Worpenberg's claim presented in her first count concerned the company's failure to take steps to quell the loose talk among its employees concerning the circumstances surrounding her departure from the company. Arguably this was conduct (or, more precisely, a failure to act), rather than communication. Significantly, however, the claim then alleged that Kroger's duty to take such remedial steps arose as a result of the company's "false claims of theft." In other words, the claim was expressly predicated on the company having commu
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