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Worpenberg v. Kroger Co.3/8/2002
nicated "false claims of theft" to its employees, i.e., having communicated to its employees the idea that Worpenberg was a thief and then doing nothing to repair the damage caused by that false claim.
We hold that the trial court did not err when it characterized Worpenberg's claim in her first count as a "disguised defamation" claim, since the claim was expressly premised upon a "communication" as defined by the Restatement. Indeed, if we were to accept Worpenberg's argument that this claim did not sound in defamation, then every person accused of defaming another would be susceptible to two distinct torts: the first sounding in defamation based upon the statement itself, and the second sounding in negligence based upon the defendant's failure to take reasonable steps to repair or control the damage caused by the statement.
Because we hold that Worpenberg's first claim sounded in defamation and was thus time-barred, we need not reach the larger question whether Ohio does, in fact, recognize a non-defamatory tort for reputational harm. As we have noted, Muething does not stand for such a broad proposition, nor can we find any Ohio case law in which the tort has been independently recognized.
B. Count III
In the third count of her complaint, Worpenberg claimed that Rhoads-Miller gave "false information" to Kroger employees who inquired about her departure, and that this constituted an "unwarranted publicizing of private affairs to members of the public and Kroger employees, about which said persons had no legitimate concern * * *." According to Worpenberg, this was a claim of invasion of privacy rather than of defamation, and should have been subject to a four-year statute of limitation pursuant to R.C. 2305.09(D).
While we agree that a claim of invasion of privacy is subject to a four-year statute of limitations, see Killea v. Sears, Roebuck & Co. (1985), 27 Ohio App.3d 163, 499 N.E.2d, we do not agree that the language of Count III purely set forth such a claim. As can be seen, this claim expressly relied upon the alleged falsity of the information that was disseminated to Kroger employees. Absent the allegations of falsity, there was language that sounded in privacy, e.g., " he conduct of the Defendant Rhoads-Meiller was an unwarranted publicizing of the Plaintiff's private affairs, about which said persons had no legitimate concern." But elsewhere the claim again sounded in defamation, stating that " s a direct and proximate result of the conduct of the Defendant, the Plaintiff's reputation has been damaged, and continues to be damaged, by the circulation of false information that the Plaintiff was involved in theft from Kroger."
In determining which statute of limitations should be applied to a particular action, a court "must look to the actual nature or subject matter of the case, rather than to the form in which the action is pleaded. The grounds for bringing the action are the determinative factors[;] the form is immaterial." Hambleton v. R.G. Barry Corp. (1984), 12 Ohio St.3d 179, 183, 465 N.E.2d 1298, 1302.
Although Count III contained elements of both defamation and invasion of privacy, the predominant subject matter-or gravamen-was the alleged damage to Worpenberg's reputation caused by the alleged "circulation of false information." Therefore, we cannot say that the trial court erred by also treating this count as a defamation claim. After subtracting the element of alleged falsity from the claim, what remained was merely the charge that Kroger and its management personnel had told its employees why Worpenberg had left. Absent any evidence that this information was confidential, there is no basis in the reco
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