Vinci v. American Can Co.

459 N.E.2d 507, 9 Ohio St. 3d 98, 9 Ohio B. 326, 1984 Ohio LEXIS 1014
CourtOhio Supreme Court
DecidedFebruary 1, 1984
DocketNo. 83-508
StatusPublished
Cited by44 cases

This text of 459 N.E.2d 507 (Vinci v. American Can Co.) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vinci v. American Can Co., 459 N.E.2d 507, 9 Ohio St. 3d 98, 9 Ohio B. 326, 1984 Ohio LEXIS 1014 (Ohio 1984).

Opinions

Celebrezze, C.J.

The single question to be answered in this appeal is whether the trial court properly certified the case at bar to proceed as a class action. In evaluating this question, we are mindful that a trial court’s determination that a cause proceed as a class action under Civ. R. 23 will not be disturbed absent an abuse of discretion. It is our function to determine whether the trial court abused its discretion in certifying this particular class action.1

Civ. R. 23 provides that, under the proper circumstances, one or more litigants may in a single proceeding represent the interests of a large class of persons similarly situated. In order to maintain a class action, all the requirements of Civ. R. 23(A), as set forth below, must be satisfied:

“One of more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.”

In the case at bar, the trial court found that the class represented by appellee, consisting of sixty-eight members, rendered joinder impracticable under Civ. R. 23(A)(1). The rule itself does not specify the minimum class size which will render joinder impracticable. The rule thus allows for a certain degree of flexibility in the determination of whether the proposed class is sufficiently numerous to qualify under Civ. R. 23(A)(1). In our view, that determination should be left to the sound discretion of the trial court. The thrust of appellants’ argument in this context is that a sixty-eight member class [100]*100does not render joinder impracticable. However, appellants fail to state whyjoinder is not impracticable in this particular instance. It follows that appellants have not established that the trial court abused its discretion in ruling that appellee satisfied Civ. R. 23(A)(1).

With respect to Civ. R. 23(A)(2), appellants argue that the class represented by appellee lacks commonality of interest with the appellee himself. In Zacchini v. Scripps-Howard Broadcasting Co. (1976), 47 Ohio St. 2d 224 [1 O.O.3d 129], reversed on other grounds (1977), 433 U.S. 562, we held at paragraph one of the syllabus:

“One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy, and the use or benefit need not necessarily be commercial.”

Under the standard of liability announced in Zacchini, supra, all members of the class represented by appellee are potentially entitled to recovery in this forum.2 Appellants’ alleged appropriation of the names and/or likenesses of the class members was based on a single advertising promotion. Thus, members of the class represented by appellee do share common questions of both law and fact. The trial court committed no abuse of discretion in so finding.

Appellants argue further that, pursuant to Civ. R. 23(A)(3), appellee’s claim is not typical of the class he seeks to represent because appellee has not achieved the notoriety that some other class members had at the time of the alleged invasion. Appellants’ argument in this respect is simply not relevant to Civ. R. 23(A)(3). Regardless of the notoriety attained by the various class members, under Zacchini, supra, the invasion would nonetheless be actionable. The degree of notoriety may impact on the amount of damages to which each class member may be entitled. However, the nature of a claim and the issue of damages are analytically independent inquiries. Consequently, appellee’s claim is indeed typical of the claims of the class. The trial court correctly found that the requirement of Civ. R. 23(A)(3) had been met.

Appellants pursue their contention further by alleging that appellee will not “fairly and adequately protect the interests of the class” under Civ. R. 23(A)(4). Appellants suggest that appellee has not suffered the same injury as the other class members because several members of the class have achieved prominence which transcends the degree of fame achieved by appellee.3 Again appellants confuse liability with the extent of recoverable damages. While it may be true that the more notable athletes in the class represented by appellee may be entitled to recover more damages than ap[101]*101pellee himself, the injury, i.e., the alleged invasion of privacy, is a common thread connecting all members of the class as defined by the trial court. Appellants make no contentions that appellee’s interest in this litigation is somehow adverse to the interests of the other class members or that appellee’s counsel lacks the competence to advance appellee’s claim. We agree with the following statement by the court of appeals below:

“This requirement [Civ. R. 23(A)(4)] is satisfied where plaintiff’s counsel is able and experienced and where there is no danger of a collusive suit potentially detrimental to the rights of the class * * * [citations omitted]. There has been no suggestion of collusion in this case. And there is no reason advanced to challenge the ability and expertise of plaintiff’s counsel. The protection requirement is satisfied.”

We now turn to the principal argument raised by appellants. After finding that all the requirements of Civ. R. 23(A) had been met, the trial court ruled that appellee’s action also came within Civ. R. 23(B)(3) which states:

“An action may be maintained as a class action if the prerequisites of subdivision (A) are satisfied, and in addition:

u* * *

“(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (a) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (b) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (c) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (d) the difficulties likely to be encountered in the management of a class action.”

Appellants’ position is that the instant proceeding does not come within Civ. R. 23(B)(3) because the amount of damages may vary among class members. Appellants reason that the question of damages affects only individual class members and thus predominates over questions of law or fact common to the class. We disagree. While potential dissimilarity in remedies is a factor to be considered in determining whether individual questions predominate over common questions, that alone does not prevent a trial court from certifying a cause as a class action. The overwhelming body of law so indicates. See Miles v. N. J. Motors (1972), 32 Ohio App. 2d 350, 356 [61 O.O.2d 518]; De La Fuente v. Stokely-Van Camp, Inc. (C.A. 7, 1983), 713 F. 2d 225, 232; Campbell v. New Milford Bd. of Edn. (1980), 36 Conn. Supp. 357, 362, 423 A.

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Cite This Page — Counsel Stack

Bluebook (online)
459 N.E.2d 507, 9 Ohio St. 3d 98, 9 Ohio B. 326, 1984 Ohio LEXIS 1014, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vinci-v-american-can-co-ohio-1984.