## Facts

- Ahron Leichtman, a nationally known antismoking advocate, appeared as a guest on WLW’s “Bill Cunningham” radio talk show on the Great American Smokeout to discuss the harms of smoking and secondhand smoke.
- During the in-studio appearance, WLW host Andy Furman allegedly lit a cigar and repeatedly blew smoke in Leichtman’s face to cause physical discomfort, humiliation, and distress.
- Leichtman sued WLW Jacor Communications, host Bill Cunningham, and Furman for (1) battery, (2) invasion of privacy, and (3) violation of a Cincinnati Board of Health anti-smoking regulation.
- The trial court dismissed all claims under Ohio Civ. R. 12(B)(6).
- Leichtman appealed; the appellate court reviewed de novo, accepting well-pleaded allegations as true and asking whether it appeared beyond doubt that no set of facts could entitle him to relief.

## Issues

1. Whether intentionally and repeatedly blowing cigar smoke into a guest’s face can satisfy the “contact” and “offensiveness” elements of common-law battery.
2. Whether the alleged conduct stated an invasion-of-privacy claim under any recognized Ohio privacy theory.
3. Whether Cincinnati Board of Health Regulation No. 00083 created an express or implied private right of action for civil damages.

## Decision

- The court affirmed in part, reversed in part, and remanded.
- It reversed dismissal of the battery claim, holding the complaint stated a claim against Furman and sufficiently pleaded potential liability theories as to Cunningham and WLW at the pleading stage.
- It affirmed dismissal of the invasion-of-privacy claim.
- It affirmed dismissal of the claim based on violation of the health regulation, holding the regulation did not create a private damages remedy.

## Legal Principles

- Battery lies where a defendant intends to cause harmful or offensive contact, and such contact directly or indirectly results.
- “Offensive contact” is evaluated by whether it would offend a reasonable sense of personal dignity; minimal physical impact does not bar liability if the contact is offensive.
- Particulate matter (including tobacco smoke) can constitute “contact” for battery when intentionally directed at another person.
- A defendant who is present and encourages or incites a battery by words may be liable as a principal under common-law participation theories, and such claims may proceed under notice pleading when adequately alleged.
- Invasion of privacy in Ohio is limited to recognized categories (intrusion upon seclusion, public disclosure of private facts, appropriation, and false light); voluntary participation in a public radio appearance undermines a seclusion-based theory absent additional facts fitting a recognized category.
- A local health regulation will not be treated as creating a private right of action for damages without clear intent; where the regulation provides administrative enforcement mechanisms, courts will not infer a private damages remedy.

## Conclusion

The appellate court held that a complaint alleging an intentional, targeted act of repeatedly blowing cigar smoke into a guest’s face states a claim for battery, but it rejected an invasion-of-privacy theory on these facts and refused to infer a private civil damages remedy from the Cincinnati health regulation.


Leichtman v. WLW Jacor Commc’ns, Inc., 92 Ohio App. 3d 232, 634 N.E.2d 697 (Ohio Ct. App. 1994)