Marianella Medelius


v. *

* * * * * * * * * * *

Case No.: Judge:




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 insupport.

Respectfully submitted,

Marianella Medelius (0000944) 535 N. Main St. Ada, OH 45810 Telephone: (910) 231-4685 E-mail: COUNSEL FOR DEFENDANT


477 U. is an undergraduate student at the University of Ada. that conclusion is adverse to that party. Celotex Corp. II. 2010.Plaintiff alleges that a result of this defamationhe suffered injuries and has requested the court to award him damages in an amount exceeding $25. the plaintiff allegesthat on or around Friday August 13th. 2010.defendant wrote on his private office¶s desktop computer the following statement: ³Reminder ± tell Dean that D. the plaintiff must make a sufficient showing of the existence of every element essential to his case. Defendant.R. is selling drugs to students. 106 S. FACTS Plaintiff. v. 364 N.E. and (3) it appears from the evidence that reasonable minds can come to but one conclusion.2d 265. Plaintiff filed the Complaint in this matter on September 2rd. ARGUMENT AND LAW A.S.2d 317. To survive a motion for summary judgment. 56(C) when (1) no genuine issue of material fact remains to be litigated. Wean United. 327. The 2 . 50 Ohio St. 317. (1977).Ct.000.2d 267. Dorian E. Inc. 2548. In that Complaint. is plaintiff¶s professor at the University.L. Summary Judgment Standard Summary judgment is proper under Civ. Specifically.´ 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. resulting in plaintiff¶s defamation and humiliation.Marianella Medelius MEMORANDUM IN SUPPORT I.E. plaintiff alleged that the defendant created and published a libelous statement concerning plaintiff. (2) the moving party is entitled to judgment as a matter of law. and with the evidence viewed most strongly in favor of the party against whom the motion for summary judgment is made. Catrett (1986).Ed. Temple v. 91 L. Abraham Wilson. Leonard.

if appropriate.E. 75 Ohio St.If the moving party has satisfied its initial burden. (1987). shame or disgrace. Id. 512 N.Marianella Medelius OhioSupreme Court has held that a party seeking summary judgment on the grounds that a nonmoving party cannot prove its case.E. excluding the element of fault. 181.´ Thomas H. 3d 180.Plaintiff has failed to set forth evidence creating genuine issues of material fact with regard to several of the aforementioned 3 .E. Lansdowne v. (1974). ridicule.E. Hersch v.2d 264. shall be entered against the non-moving party. W.W.Co. if the non-moving does not so respond. Scripps C. Dresher v. (d) the statement must be published by defendant to a third party.2d 494. 3 Ohio App. E. 288. Beacon Journal Pub. E. 445 N. and (e) the defendant must be proven guilty of some degree of fault. Maloney & Sons. The essential elements in a libel action under Ohio law are: (a) the statement must be false. or to affect him adversely in his trade or profession. B. 334 N. summary judgment. 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. 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. Scripps Co. (c) the statement must be in writing. Inc. (1981). 43 Ohio App. 3d 280.. 107. Burt (1996).2d 979. 374-375. Plaintiff Cannot Establish aLibel Claim Ohio law defines libel as ³a false and malicious publication made with the intent to injure a person's reputation or expose him to public hatred. 3d 367.. 32 Ohio St. the non-moving party then has a reciprocal burden to set forth specific facts showing that there is a genuine issue for trial and.2d 670. v.The Ohio Supreme Court has provided that for all prima facie elements of libel.662 N.2d 105. (b) the statement must be defamatory towards the plaintiff. contempt.

´.E.2d 979.E. 32 Ohio St.´ refer to him. 32 Ohio St.The defendant does not have the burden of proving the truth of any statement.Co. An essential element of libel is that the statement published must be false. By using the initials ³D. plaintiff has failed to meet his burden that the statement was false.´ referred tohimself by the preponderance of the evidence. (1987).L. 3d 180.In this case. Upon review of the record.Co. Plaintiff Has Not Established that the Statement was False Even if the statement concerned plaintiff. which it did not.Marianella Medelius elements of libel.Lansdowne v..E. it is clear that plaintiff has failed to meet the burden of demonstrating that the initials ³D. ii. the allegeddefamatory statement states: ³Reminder ± tell Dean that D. Plaintiff has the burden of proving by the preponderance of the evidence that any alleged statement at issue is false.E. 512 N. defendant could have been referring to several other individuals besides plaintiff. i.L. Plaintiff has failed to set forth any evidence to support his contention that the initials ³D. (1987). is selling drugs to students. 3d 180.L. Beacon Journal Pub. that he was not involved in the sale of drugs to fellow students. Plaintiff Has Not Established that theStatement was About Plaintiff The element that defendant made a false statement concerning plaintiff has not been met by the preponderance of the evidence.E.E. 4 . The record illustrates thatthe plaintiffhas not set forth any evidence to prove the falsity of the statement.´ The University of Ada is composed by a large student body. Beacon Journal Pub. 181.L. 512 N. hundreds of faculty members.Lansdowne v. and a large numberadministrative and custodial staff.2d 979. 181. No reasonable minds could come to the conclusion that defendant¶s statementwas about plaintiff. namely. No reasonable minds could come to the conclusion that plaintiff has met his burden in proving each and every element of his libel action.

but that he was ³at fault´ when he published such statement. Defendant wrote the notation as a personal reminder to communicate the Dean of potential criminal activity occurring at the university. Rep.Ohio law has established that in order for the defendant to be at fault.Horvath v. 418 U.S.Co.2d 979. Ed. No reasonable fact finder can determine that the publication was intentionally published under the facts presented. Robert Welch.S. Clear and 5 .512 N. 347. the plaintiff has failed to set forth evidence establishing that the defendant published the statement to third parties. Inc. Telegraph(1982). 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.Marianella Medelius iii. Strong evidence of negligence is required to meet this burden. 323. 178-80. Ohio requires plaintiff to prove by clear and convincing evidence that the defendant was negligent in ³fail[ing] to act reasonably in attempting to discover the truth or falsity or defamatory character of the publication. The plaintiff has clearly failed to set forth evidence demonstrating that this was an intentional publication done with actual or express malice.E. Gertz v. 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. he must have published the statement with either express or actual malice.´Landsdowne v. (BNA) 1657. Beacon Journal Pub. 41 L. 94 S. The students that saw the notation on defendant¶s computer were not supposed to be in defendant¶s office. (1974).(1987). 32 Ohio St. Ct. The U. LEXIS 15776. 2997. 3d 176. Importantly.Here. Plaintiff cannotprove that Defendant Published the Alleged Defamatory Statement to Third Parties or that he Acted with the Required Degree of Fault in doing so. 8 Media L. a plaintiff can also meet the element of fault by demonstrating that the defendant was negligent in publishing the statement. Under Ohio law. 2d 789.Ohio App. or negligence.

Jacobs (1998).´ was selling drugs to students. 1999 Ohio App. 601. 611 N. In this case the statement states that ³D. when the statement became published. courts have lookedat the defendant¶s state of mind and asking whether the defendant had reasonable grounds for believing that the communication was true.2d 955.however. 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. 581. the plaintiff has the burden of proving that the statement was either defamatory per se or caused special harm to the plaintiff. 126 Ohio App.E.Akron-Canton Waste Oil v. either through express/actual malice or negligence.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 ³D.That a statement is libelous per se. 2d 118.E. 161 Ohio St. 3d 580.E. Bays v. 469. Comment g). The Ohio Supreme Court has established that a libelous statement accusing an individual of criminal conduct is libelous per se. 477. C. Section 580(B). No reasonable minds can come to the conclusion that defendant was at fault. does not relieve the plaintiff of proving the other critical elements of a 6 . (1999).L.Marianella Medelius convincing evidence ³is that measure or degree of proof which is more than a mere µpreponderance of evidence.E.120 N.L´ sold drugs to students. (1992). Torts (1977) 227.¶ but not to the extent of such certainty as is required µbeyond a reasonable doubt¶ in criminal cases. 710 N. 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.Davis v. 3d 591.In determining whether a defendant has been negligent. Safety-Kleen Oil Serv. 81 Ohio App. LEXIS 3343. Ledford (1954).E.*12(quoting 3 Restatement of the Law 2d. and that defendant¶s actions were the proximate cause of such injuries.´Cross v. Northwestern Local School Dist.2d 1185. and therefore damages are presumed.

The plaintiff still has the burden of proving the other elements of libel: that the statement was about him. Plaintiff did not offer any evidence of similar previous incidents and has therefore failed to prove 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. and 3) occur in time between the original act and the harm.Plaintiff.3d 609. Gen.Marianella Medelius defamation action. Queen City Terminals. that the statement was false. Am. Inc. v. plaintiff has clearly failed to meet his burden concerning the essential elements of a libel action. If the intervening act was foreseeable. In this case. 73 Ohio St.An intervening cause has several requirements: it must 1) be independent of the original act. the plaintiff has failed to set forth evidence that defendant was the proximate cause of his alleged injuries. at 620. As discussed above. and that defendant was negligent in doing so or acted with express malice. and it occurred between the time defendant wrote the notation and the time the statement was allegedly published. Corp.2d 661. First. as in any tort action.Id. 619. the plaintiff must demonstrate that there is proximate cause between his injuries and defendant¶s actions.(1995). 7 . it will not break the causal chain.It is settled law that the causal connection between a defendant's act and the resulting damage may be broken by an intervening cause. Transp. In addition.Id.The students¶ action of wrongfully entering defendant¶s office. 2) be a voluntary human act or an abnormal natural event. Id.E. the fact that students entered the defendant¶s office without permission is clearly an intervening cause. and publishing it to third parties was a voluntary act independent from the defendant¶s original act of writing the notation on his computer. in the instant action has also failed to demonstrate foreseeability. that defendant published the statement to third parties. 653 N. reading the statement.

Defendant has properly raised the defense of qualified privilege in his answer and is now raising it in the present motion. and(5) the publication was made in a proper manner and only to proper parties. The second element is also met by defendant.2d 713.W. 15 Ohio App. defendant¶s position as educator affords him additional grounds for privilege. 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.3d 18. There was a clear interest that the defendant sought to uphold: safety at his workplace. Ohio Savings Assn. which provides 8 . the defendant must establish that:(1) he acted in good faith.(2) there was an interest to be upheld. to fall within the protection of the privilege.2d 237. 43 Ohio St. educators share an interest in the morality and well-being of their students and their institutions.Hahn v. no reasonable minds could reach the conclusion that defendant¶s notation was the proximate cause of the alleged injuries sustained by plaintiff. the communication at issue here is protected by a qualifiedly privilege based on public policy. Maintaining a drug-free university is a clear common interest between defendant and the Dean.(4) the occasion was proper. 331 N.Marianella Medelius Under the evidence presented. it is clear that defendant meets the required elements of qualified privilege. that the statement was made in good faith. 20. As a matter of public policy.E. which he hasfailed to do.2d 372. Kotten (1975). 472 N. The first element. This is clearly portrayed by Section 22 of the Drug-Free Schools and Communities Act Amendment of 1989. Plaintiff Cannot Establish that the Statement Was Done Without Privilege Even if plaintiff were able to establish the prima facie elements of defamation.Based on the record. In defamation cases. D. The record holds no evidence of ill will or malice on the part of defendant.Stearns v. (1984). 244.(3) the statement was limited in its scope to the purpose of upholding that interest. In addition to the employer-employee privilege. is clearly met.

55 Fed. OH 45810 Telephone: (910) 231-4685 E-mail: m-medelius-marsa@onu. 34 C.L´ selling drugs to students. The third element that must be met is thatthe statement was limited in its scope to the purpose of upholding the interest.C.S. or distribution of illicit drugs by students and employees on its property. the statement cannot be deemed ³improper´ for purposes of a qualified privilege analysis. such as the University of Ada. use. Respectfully Submitted. § 1011. Defendant¶s statement was limitedto his interest in promoting safety at the university. must set standards of conduct that prohibitthe unlawful possession. Marianella Medelius(0000944) 435 N. a proper party who also has an interest in maintaining and promoting a drug-free environment at the university. 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. The fourth and fifth elements are also met.Therefore. CONCLUSION Based upon a review of the applicable law and the facts and circumstances of the case. § 86. 16. Main St.580 (Aug. Ada. 1990). 20 U. no further allegations were made concerning the individual.E.R. Besidesthe reference to ³D. 33.Marianella Medelius that institutions of higher education that receive funds or any other form of financial assistance under any federal program. Reg.F. COUNSEL FOR DEFENDANT 9 .1. Defendant Abraham Wilson has established that he is entitled to judgment as a matter of law. since the statement clearly indicated that it would have been transmitted exclusively to the Dean.

mail. Main St.Marianella Medelius CERTIFICATE OF SERVICE I hereby certify that a true and accurate copy of the foregoing Motion for Summary Judgment was sent by regular U. 2010 to PepeLepieux. OH 45810. 666 COUNSEL FOR DEFENDANT 10 . Main St. Marianella Medelius(0000944) 435 N. Ada.S. Ada. this 16th day of November. OH 45810 Telephone: (910) 231-4685 E-mail: m-medelius-marsa@onu. postage prepaid. Attorney for Plaintiff.