4-6. Case Problem with Sample Answer

During the spring and summer of 1999, Edward and Geneva Irvine received numerous “hang up” phone calls, including three calls in the middle of the night. With the help of their local phone company, the Irvines learned that many of the calls were from the telemarketing department of the Akron Beacon Journal in Akron, Ohio. The Beacon’s sales force was equipped with an automatic dialing machine. During business hours, the dialer was used to maximize productivity by calling multiple phone numbers at once and connecting a call to a sales representative only after it was answered. After business hours, the dialer was used to dial a list of disconnected numbers to determine whether they had been reconnected. If the dialer detected a ring, it recorded the information and dropped the call. If the automated dialing system crashed, which it did frequently, it redialed the entire list. The Irvines filed a suit in an Ohio state court against the Beacon and others, alleging in part an invasion of privacy. In whose favor should the court rule, and why? [Irvine v. Akron Beacon Journal, 147 Ohio App.3d 428, 770 N.E.2d 1105 (9 Dist. 2002)]

4–6. Answer A jury found that the Beacon’s telemarketing practices had invaded the Irvines’ privacy and awarded them more than $200,000 in damages and attorney’s fees on this claim. The court entered a judgment on this verdict. The Beacon appealed to a state intermediate appellate court, which affirmed this judgment. The Beacon argued in part that three late-night phone calls were not enough to sustain an award of damages for an invasion of privacy. The appellate court noted that the lower court had instructed the jury, “[I]t is only when telephone calls are repeated with such persistence and frequency as to amount to a course of hounding the Plaintiffs that * * *the Plaintiffs’ privacy is invaded.” The appellate court stated, “[T]his language should have made it clear to the jury that more than two or three telephone calls were required before liability would attach.” The court also pointed out that there was nothing to indicate the jury based its verdict on the late-night calls only.