Hersh v. Grumer
176 N.E.3d 1135
Ohio Ct. App.2021Background
- Plaintiff Akiva Hersh worked in the Cleveland Orthodox Jewish community and, after opposing certain conduct, alleges he received threats.
- On August 13, 2018 a group of rabbis published and read a letter to congregations stating they had "recently learned" Hersh was "alleged to have engaged in inappropriate behavior with young men under the age of thirteen," that police reports had been filed, that he was "attempting to create a Boy Scout troop," and warning members not to let young children be in his care.
- The Letter was publicized further through the Cleveland Jewish News and online posts; Hersh alleges the statements were false and defamatory (per se and per quod), placed him in a false light, and caused emotional distress.
- Hersh sued (July 2019). The trial court granted defendants’ motions to dismiss / for judgment on the pleadings after considering police reports attached to some filings.
- The court of appeals (majority) reversed and remanded, holding Hersh’s complaint sufficiently pleaded defamation, false light, and intentional infliction of emotional distress and that the trial court erred by considering extraneous police reports and resolving disputed factual defenses at the Rule 12 stage.
- The panel included a lengthy dissent arguing the trial court effectively treated the motions as summary judgment, that those extrinsic materials justified a Civ.R. 56 standard of review, but agreeing that defendants were not entitled to final judgment as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hersh sufficiently pleaded defamation (per se / per quod) based on the Letter | Letter accuses him (expressly and by innuendo) of sexual misconduct with minors, publication caused reputational injury, malice alleged | Statements are true/substantially true; or are non-actionable opinion; or susceptible to innocent construction | Reversed trial court: complaint state plausible claims for defamation; truth/opinion/innocent-construction were factual defenses not to be resolved on Rule 12 without undisputed proof |
| Whether Hersh’s false-light claim survives dismissal | Letter placed him before the community in a false, highly offensive light; defendants acted with reckless disregard | Publication is true or protected opinion | Reversed: allegations support false-light claim and recklessness/malice not resolved at pleading stage |
| Whether intentional infliction of emotional distress claim survives dismissal | Publication was intentional, extreme and outrageous, and caused severe distress | Conduct did not meet the extreme/outrageous or causation standard; shielded by privilege/opinion | Reversed: allegations, accepted as true, can satisfy elements; dismissal premature |
| Whether trial court properly considered police reports and applied correct standard of review | Court improperly considered police reports (not incorporated) and should have applied Rule 12(B)(6)/12(C) de novo review | Defendants relied on extrinsic police reports to show truth and privileged communications; trial court’s consideration converted proceedings to summary judgment | Majority: trial court erred by considering police reports and resolving factual disputes at Rule 12 stage; case remanded. Dissent: trial court’s consideration invoked Civ.R. 56 standards and summary disposition was improper because genuine factual issues remain |
Key Cases Cited
- Vail v. Plain Dealer Publishing Co., 72 Ohio St.3d 279 (Ohio 1995) (totality-of-circumstances test to distinguish fact from opinion)
- Gosden v. Louis, 116 Ohio App.3d 195 (Ohio Ct. App. 1996) (defamation per se definitions and crimes are per se defamatory)
- Hahn v. Kotten, 43 Ohio St.2d 237 (Ohio 1975) (qualified/common-interest privilege elements)
- Jacobs v. Frank, 60 Ohio St.3d 111 (Ohio 1991) (privileged publication requires actual malice to overcome privilege)
- Welling v. Weinfeld, 113 Ohio St.3d 464 (Ohio 2007) (elements of false-light invasion of privacy)
- Jackson v. City of Columbus, 117 Ohio St.3d 328 (Ohio 2008) (definition of defamation and elements)
- A & B‑Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Const. Trades Council, 73 Ohio St.3d 1 (Ohio 1995) (defamation and qualified privilege framework)
- Mendise v. Plain Dealer Publishing Co., 69 Ohio App.3d 721 (Ohio Ct. App. 1990) (read statements in context of entire publication to determine defamatory meaning)
- Becker v. Toulmin, 165 Ohio St. 549 (Ohio 1956) (court primarily decides whether words are libelous per se)
- York v. Ohio State Highway Patrol, 60 Ohio St.3d 143 (Ohio 1991) (pleading standard and need not prove case at pleading stage)