Count Three alleges that SexSearch negligently inflicted emotional distress by failing to remove Roe’s profile from its website

He had agreed to the Terms and Conditions, which state that SexSearch is not responsible for verifying users’ ages, and had gone through the registration process himself and thus knew that SexSearch took no steps to check the accuracy of users’ promises that they are eighteen

To state a claim for negligent infliction of emotional distress under Ohio law, the plaintiff must allege that he was aware of real physical danger to himself or another. See King v. Bogner, 88 Ohio App.3d 564, 624 N.E.2d 364, 367 (Ohio Ct.App.1993); see also Heiner v. Moretuzzo, 73 Ohio St.3d 80, 652 N.E.2d 664, 669 (Ohio 1995) (Ohio courts have limited “recovery for negligent infliction of emotional distress to instances where the plaintiff has either witnessed or experienced a dangerous accident or appreciated the actual physical peril”). Doe’s alleged injuries result from embarrassment and harm to social standing and employment prospects; he does not allege that he experienced a dangerous accident or appreciated actual physical peril and, consequently, has not stated a claim for negligent infliction of emotional distress. See Wigfall v. Society Nat’l Bank, 107 Ohio App.3d 667, 669 N.E.2d 313 (Ohio Ct.App.1995) (affirming trial court’s grant of summary judgment for defendant on plaintiff’s claim for negligent infliction of emotional distress, where defendant falsely accused plaintiff of robbing a bank, resulting in plaintiff’s arrest and interrogation and the publication of his photograph).

Here, there was no likelihood that SexSearch’s warning that all users are over eighteen would induce a state of mind in Doe that was not in accord with the facts

Count Four alleges negligent misrepresentation based on the warning that all members of SexSearch are adults. A defendant is liable for negligent misrepresentation if he (1) supplies false information (2) for the guidance of others in their business transactions (3) causing pecuniary loss to the plaintiff (4) while the plaintiff justifiably relied upon the information (5) and the defendant failed to exercise reasonable care or competence in obtaining or communicating the information. Delman v. City of Cleveland Heights, 41 Ohio St.3d 1, 534 N.E.2d 835, 838 (Ohio 1989). Courts have also recognized that a claim for negligent misrepresentation requires “a special relationship under which the defendant supplied information to the plaintiff for the latter’s guidance in its business transaction.” Ziegler v. Findlay Indus., Inc., 464 F.Supp.2d 733, 738 (N.D.Ohio 2006). The information at issue in this case was not supplied to guide others in their business transactions; nor is Doe complaining about any pecuniary losses; nor (as noted) was his reliance justifiable; nor has he alleged any “special relationship” between himself and SexSearch. Therefore he has failed to state a claim for negligent misrepresentation.

Count Five alleges a breach of warranty, likewise based on the same warning about users being over eighteen. Under Ohio Rev.Code § , “[a]ny affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.” The section only applies to the sale of goods, not to services. See Brown v. Christopher Inn Co., 45 Ohio App.2d 279, 344 N.E.2d 140 (Ohio Ct.App.1975) (holding that § does not apply when there is no sale of goods, as defined by the Uniform Commercial Code). Because SexSearch is a service and Doe has not alleged that the dispute concerns the sale of goods, he has not stated a claim for breach of warranty.

Counts Six through Ten allege violations of the Ohio Consumer Sales Practices Act. Counts Six and Seven allege deceptive trade practices in violation of Ohio Rev.Code § . When determining whether an act or practice is deceptive, the court views the incident from the consumer’s standpoint. Chesnut v. Progressive Cas. Ins. Co., 166 Ohio App.3d 299, 850 N.E.2d 751, 757 (Ohio Ct.App.2006). “The basic test is one of fairness; the act need not rise to the level of fraud, negligence, or breach of contract.” Id. “Furthermore, a deceptive act has the likelihood of inducing a state of mind in the consumer that is not in accord with the facts.” Id. Because the warning was not deceptive, when viewed from Doe’s perspective, Counts Six and Seven do not state a claim for deceptive sales practices.


Leave a Reply

Avatar placeholder