DALE A. CRAWFORD, JUDGE
Sent to S.C. Reporter 12/20/23
DECISION
DALE A. CRAWFORD, JUDGE
{¶1} On August 3, 2023, Defendant The Ohio State University Airport separately filed two motions for summary judgment: Defendant's Motion for Summary Judgment Against Plaintiff Imperial Aviation Services and Defendant's Motion for Summary Judgment Against Plaintiff Carlos Muller. The motions are now fully briefed and before the Court for a non-oral hearing pursuant to L.C.C.R. 4(D).
{¶2} In support of its motions, Defendant submitted: (1) a copy of Plaintiff Carlos Muller's April 18, 2023 deposition, including the exhibits used during the deposition; (2) the affidavit of Jeanna Jacobus, including the exhibits referenced therein; (3) an affidavit of Adam Wolf, including the exhibits referenced therein; and (4) an affidavit of Holly Henley, including the exhibits referenced therein. In response, Plaintiffs submitted: (1) a copy of Adam Wolf's June 28, 2023 deposition, including the exhibits used during the deposition (2) a copy of Holly Henley's August 2, 2023 deposition, including the exhibits used during the deposition; and (3) various other exhibits.
{¶3} For the reasons stated below, the Court GRANTS Defendant's motions.
Factual Background
{¶4} Plaintiff Imperial Aviation Services LLC (IAS) is owned and operated by Plaintiff Carlos Muller (Muller), a graduate of The Ohio State University (OSU) aviation management program in the Center for Aviation Studies (CAS). IAS is a "fixed base operator" that provides aircraft cleaning and detailing maintenance for aircrafts.
{¶5} IAS started as a vendor of The Ohio State University Airport (OSU Airport), performing services on OSU flight school planes. On June 29, 2020, IAS and Defendant entered into a one-year lease agreement in which IAS agreed, as a tenant, to rent a portion of an OSU Airport airplane hangar to support this operation (the Lease). The Lease specifically provides, regarding permitted uses, that: "Tenant shall use the Leased Premises solely for office purposes in support of aircraft operations." Regarding prohibited uses, the Lease provides, in relevant part, that: "Tenant shall not conduct commercial activity of any kind from, in, or around the Leased Property or on Airport property." The Lease did not provide a right to automatic renewal.
Under the Lease, "Tenant" refers to IAS.
{¶6} Thereafter, IAS's role expanded, and it became a commercial operator at the OSU Airport, providing services to private airplane owners who used the OSU Airport. To this end, IAS and OSU Airport entered into a commercial services agreement in which Defendant contracted IAS, as an operator, to perform aircraft cleaning and detailing services at OSU Airport as an independent contractor between December 15, 2020 and June 30, 2021 (Commercial Services Agreement). The Commerical Services Agreement did not provide a right to automatic renewal. With specific regard to advertising, the Commercial Services Agreement provides:
Under the Commercial Services Agreement, "Operator" refers to IAS.
The Operator agrees that it shall not advertise any connection with The Ohio State University, its Board of Trustees, The Ohio State University, or any agency thereof, nor make use of the University's name or other identifying marks or property nor make representation, either expressed or implied, as to the University's promotion or endorsement of the Operator's operation/services, unless it has received prior written permission from the University.
To indicate that IAS was a fixed base operator at OSU Airport, IAS's business name was listed with a link to its business website on OSU Airport's website under the "services" tab for aircraft cleaning and detailing.
{¶7} Both the Commercial Services Agreement and the Lease required that IAS comply with all applicable rules and regulations of The Ohio State Airport-codified in Ohio Adm.Code 3335-105-01 through and including 3335-105-11-and the Airport Operating Policies and Procedures. Particularly relevant, Ohio Adm.Code 3335-105-02(W) provides:
In the case of an apparent violation of Rules 3335-105-01 to 3335-105-11 of the Administrative Code the Airport Manager shall have the authority to take whatever action determined to be appropriate in order to enforce these rules, including, but not limited to, cancellation of leases, revocation of based aircraft agreement, * * * suspension, or prohibition from the airport * * * Except when deemed necessary in the interest of safety or other exceptional circumstances, the airport manager shall take such action after notifying the affected person orally or in writing of a violation of these rules and giving the affected person an opportunity to respond.
Additionally, Ohio Adm.Code 3335-105-02(D) provides: "Without the approval of the airport manager, no person shall offer services for hire, offer products for sale, conduct commercial activity or solicit for any purpose on the airport premises." Also, Ohio Adm.Code 3335-105-02(N) provides: "Special events or demonstrations may be permitted on the airport only with the approval of the airport manager." These rules are in place to ensure the safety and security of the airport and to protect the assets of OSU Airport and the tenants who use OSU Airport.
{¶8} Around 8:00 p.m. on March 22, 2021, Muller used IAS's credentials to access OSU Airport property to allow 7th Gear Exotics, a third-party luxury car rental business, onto the premises to create an advertisement. Specifically, Muller escorted five individuals and four vehicles through a secured gate and into a hanger. While in the hanger, the group took photographs and video of 7th Gear Exotic's vehicles near three privately-owned jets. The goal of this advertisement was to advance IAS's potential partnership with 7th Gear Exotic to provide a car rental service to the private aircraft owners at OSU Airport.
{¶9} However, IAS did not obtain authorization from anyone at OSU Airport to conduct such activity. Additionally, IAS did not obtain permission from any of the private owners to feature their airplanes in an advertisement. OSU Airport's former Director Adam Wolf learned of this activity the same night after a co-worker sent him a video that was posted on Muller's social media. Wolf contacted OSU Airport and instructed Muller that the group needed to leave immediately.
{¶10} On March 23, 2021, Wolf sent Muller a letter informing him that OSU Airport staff received a "social media post" on the evening of March 22, 2021, that depicted potential violations of the terms of its agreements with IAS. As a result, OSU Airport suspended the access privileges granted to IAS under the Lease and Commercial Services Agreement pending an investigation into the potential violations.
{¶11} On March 24, 2021, Muller explained in an email to Wolf that the "social media post" at issue was a business commercial which depicted luxury vehicles in front of the private airplanes at OSU Airport. Muller also informed Wolf that he had done a similar "collaboration" with 7th Gear Exotic the previous fall. Specifically, Muller previously gave 7th Gear Exotic access to OSU Airport to obtain photographs for business advertisement purposes for which 7th Gear Exotic paid Muller $850 for providing access. In the same email, Muller admitted: "Looking back there were many things I could have done differently like request authorization from the airport admin to perform this display. Get approvals from the operators of the aircraft, have an escort from airport line service, and not just assume that it (sic) fine to do * * *."
{¶12} During the investigation, Wolf asked Holly Henley-the Communications Specialist for OSU Airport and CAS-to explore social media for posts depicting unauthorized activity. Henley found several social media accounts, including IAS and 7th Gear Exotic, with pictures and videos of vehicles on OSU Airport property from both October 22, 2020 and March 22, 2021. After the investigation, Wolf concluded that IAS's conduct was not in support of the purpose for which IAS was given access to the airport, i.e. aircraft detailing and cleaning. The overall benefit that IAS contributed to OSU Airport's business activities and revenue did not outweigh the potential risks to the safety and security of OSU Airport posed by IAS's unauthorized conduct.
{¶13} On March 29, 2021, Wolf gave Muller notice that OSU Airport was permanently suspending IAS's access to the premises due to IAS's failure to comply with the Airport Operating Policies and Procedures and the Minimum Operating Standards and Requirements for Commercial Operations. Thereafter, Wolf informed Muller in a July 12, 2021 email that OSU Airport decided not to renew the Lease or Commercial Services Agreement with IAS due to the March 22, 2021 violations of those agreements.
{¶14} Before IAS's access was suspended, Henley contacted Muller and asked if he would like IAS to be included in a social media post she was creating about services OSU Airport has to provide to airport tenants. In response, Muller expressed his appreciation that IAS was given the opportunity to be included in the post and subsequently provided a photograph. While the photograph Muller provided features a side-view image of Muller, Muller's name or other identifying information is not included; the post only mentions IAS. The post was published to OSU Airport's social media platforms on January 30, 2020.
{¶15} In the fall of 2020, Muller volunteered to sponsor a CAS capstone project. Capstone projects are a part of the aviation program's course offerings that upper-level students take for educational credit. To create awareness regarding the capstone program, Henley contacted Muller about doing a news article to highlight the Fall 2020 capstone project that he was sponsoring. In response, Muller provided substantial information about the project. Additionally, Henley provided Muller with a drafted copy of the article before publication, which he reviewed and provided clarifications. He also provided photographs of himself to be included in the article.
{¶16} The finished article was titled "Giving back and coming back: Young alum's business helps propel future aviation professionals" and, on December 29, 2020, was published to the news section of OSU Airport's website and CAS's website. The article currently remains posted in these locations. At the time of publication, the article link was also posted on OSU Airport's social media platforms. Muller was aware the article would be posted to these websites and social media, and informed Henley he would repost it to all his own social media platforms. Muller also specifically requested that IAS's website be linked in the article.
{¶17} To again create awareness regarding the capstone program, Henley wrote a similar article titled "Capstone Program Provide Practice Learning for Aspiring Aviators" regarding the Spring 2021 semester capstone projects, which was published on May 7, 2021. Muller continued to be a sponsor for the capstone program despite his access to OSU Airport being suspended. For this article, Henley contacted all participating sponsors via email in April 2021 to inform them that she was going to be doing a news story about the capstone teams and would like to include information from the sponsors. Henley requested that if the sponsors wanted to participate further or, conversely, if they wanted to be excluded from the news story or any related social media posts altogether, that they contact her by a date certain. In response, Muller provided the requested information, gave permission for IAS's information to be listed, and stated "I would love to participate in the news story for this capstone project." Again, Muller was aware that the article would be published in the news section of OSU Airport's website and CAS's website and that the article link would be posted on OSU Airport's social media platforms at the time of publication. Because Wolf had mentioned to Muller that there was an opportunity for IAS to regain access to OSU Airport when contracts were reviewed for renewal, Muller deponed that he "wanted to participate and still continue on with the capstone project * * * because [he] wanted to remain relevant at the OSU Airport and have a presence and representation. If I had not done that, I would have completely just thrown my business towel away and just said, this is it. I'm just going to give up."
{¶18} After Wolf informed IAS that OSU Airport would not be renewing its contracts with IAS in July 2021, Muller asked for IAS to be removed as a linked fixed base operator listed on OSU Airport's website. IAS was removed from the list on February 16, 2022, after Wolf received an email from Muller on February 15, 2022 that contained this request in writing. Muller also claims that, after July 2021 and before the February 2022 email, he asked Wolf during a phone conversation to remove "any article that had [his] name involved with it." However, Wolf disagrees that any such request was communicated. It is undisputed that Muller never contacted Henley about removing his or IAS's involvement in any article or social media post.
Discussion
{¶19} In its February 22, 2023 decision, the Court found the following claims remain for trial: Muller's claim that Defendant used his persona to sell its airport services in violation of R.C. 2741.02; Muller's common law cause of action for invasion of privacy for appropriation of his name and likeness; and IAS's claims for breach of contract and business interference. Pursuant to Civ.R. 56, Defendant argues it is entitled to judgment as a matter of law on these remaining claims. Motions for summary judgment are reviewed under the standard set forth in Civ.R. 56(C), which states, in part:
Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule.
"[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record before the trial court which demonstrate the absence of a genuine issue of material fact on a material element of the nonmoving party's claim." Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). To meet this initial burden, the moving party must be able to point to evidentiary materials of the type listed in Civ.R. 56(C). Id. at 292-293.
{¶20} If the moving party meets its initial burden, the nonmoving party bears a reciprocal burden outlined in Civ.R. 56(E), which provides that "an adverse party may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." It is well-established that it is not appropriate to grant summary judgment unless,
construing the evidence most strongly in favor of the nonmoving party: (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, that conclusion being adverse to the nonmoving party.
Robinette v. Orthopedics, Inc., 10th Dist. Franklin
No. 97AP-1299,
1999 Ohio App. LEXIS 2038, 7 (May 4, 1999).
IAS's claims for Breach of Contract and Business Interference
{¶21} Initially, the Court notes that IAS "is not pursuing an interference claim which will be treated as merged into the breach of action and Defendant's motion speaking to contract interference is moot." See Plaintiff's Opposition to Defendant's Motion for Summary Judgment on Breach of Contract Claim, p. 11. Because IAS contends that it is not pursuing the business interference claim and the Court finds that the economic-loss rule would preclude the same, Defendant is entitled to judgment as a matter of law as to IAS's claim for business interference. See Corporex Dev. & Constr. Mgmt. v. Shook, Inc., 106 Ohio St.3d 412, 2005-Ohio-5409 ("Tort law is not designed * * * to compensate parties for losses suffered as a result of a breach of duties assumed only by agreement. That type of compensation necessitates an analysis of damages which were within the contemplation of the parties when framing their agreement. It remains the particular province of the law of contracts."). Therefore, the Court will limit its analysis to IAS's breach of contract claims.
{¶22} In order "[t]o prevail on a claim for breach of contract, the claimant must demonstrate the existence of a contract, performance by the plaintiff, breach by the defendant, and damage or loss to the plaintiff." Jarupan v. Hanna, 173 Ohio App.3d 284, 2007-Ohio-5081, 878 N.E.2d 66, ¶ 18. Defendant will "breach" a contract when it "fail[s] without legal excuse to perform any promise which forms a whole or part of a contract, including the refusal of a party to recognize the existence of the contract or the doing of something inconsistent with its existence." Hopkins v. Car Go Self Storage, 135 N.E.3d 1229, 2019-Ohio-1793, ¶ 13 (10th Dist.), quoting Natl. City Bank of Cleveland v. Erskine & Sons, Inc., 158 Ohio St. 450, 110 N.E.2d 598 (1953) (internal quotation marks omitted). To determine the duties owed under the contract, the Court must construe the terms of the contract and determine the intent of the parties. Id. at ¶ 14. When construing the terms of a contract, "'[a] court must presume that the intent of the parties resides in the language that they used in the contract.'" Id. (internal citations omitted). When "the court can determine the parties' intent from the plain language of the contract, then the court must apply that language as written and refrain from further contract interpretation." Id. (internal citations omitted). Indeed, "[w]hen the facts presented in a case are undisputed, whether they constitute a performance or a breach of the contract, is a question of law for the court." Luntz v. Stern, 135 Ohio St. 225, 237, 20 N.E.2d 241 (1939).
{¶23} Defendant argues it is entitled to judgment as a matter of law on IAS's claims for breach of contract because it was authorized to cancel its contracts with IAS. Specifically, Defendant argues that IAS conducted activity outside the scope of the Commercial Operating Agreement and in violation of the Lease, which provided Defendant with a legal excuse to suspend IAS's access to OSU Airport. Additionally, Defendant contends that IAS has no basis for breach of contract claims for Defendant's non-renewal of the contracts because neither the Lease nor Commercial Operating Agreement contained a term entitling either party to automatic renewal, which Muller acknowledged.
{¶24} In response, IAS does not dispute that it violated portions of its contracts and, instead, argues that "supporting aircraft operations means running [a fixed base operator] business which implies the right to advertise for it using the business leased property and given the obvious commercial nature of the agreement OSU made with [IAS] that has to be the only reasonable construction." Plaintiffs Opposition to Defendant's Motion for Summary Judgment on Breach of Contract Claim, p. 13. Additionally, Plaintiff contends that "the lease cannot be construed under the covenant of good faith and fair dealing to allow OSU to deprive [IAS] and [Muller] the right to advertise its business as they see fit to grow the business." Id. at p. 12. Upon review, the Court disagrees.
{¶25} The Lease plainly prohibits IAS from conducting "commercial activity of any kind from, in, or around the Leased Property or on Airport property." IAS providing access into a secured airport in exchange for payment and escorting unauthorized individuals and vehicles into an OSU Airport hanger for the purpose of business advertising is certainly commercial activity. Additionally, the Court is not persuaded by IAS's argument that this unauthorized commercial activity should be excused as being "in support of aircraft operations" under the concepts of good faith and fair dealing. Indeed, IAS specifically agreed to "not advertise any connection with The Ohio State University Airport * * * nor make use of the University's name or other identifying marks or property * * * unless it has received prior written permission from the University" under its Commercial Services Agreement. Furthermore, IAS failed to comply with the relevant Ohio Adm.Code regulations incorporated by reference into both contracts.
{¶26} It's the Court's position that the safety and security of an airport is of the utmost importance. Here, IAS does not dispute that it, on more than one occasion, brought multiple unknown individuals along with multiple unknown vehicles, that could pose any number of dangers, onto OSU Airport property without the permission of airport management. Put simply, the Court finds that IAS has failed to satisfy its reciprocal burden to demonstrate a genuine issue of material fact for trial in accordance with Civ.R. 56(E). Consequently, the Court finds that reasonable minds could come to but one conclusion that Defendant had legal excuse to suspend IAS's access to OSU Airport and thereafter opt not to renew its contracts with IAS.
{¶27} For the reasons stated above, the Court GRANTS Defendant's August 3, 2023 Motion for Summary Judgment against Plaintiff Imperial Aviation Services.
Muller's claims for Invasion of Privacy
{¶28} At the outset, the Court notes that Muller "brings a common law Housh v. Peth, 135 Ohio St 65 (1956) tort action for invasion of privacy and not a RC 2741 claim * * *." See Plaintiffs Opposition to Defendant's Motion for Summary Judgment on Invasion of Privacy Claim, p. 7. Because Muller concedes that he is not pursuing a claim that Defendant used his persona to sell its airport services in violation of R.C. 2741.02, the Court will limit its analysis to Muller's common law cause of action for invasion of privacy for appropriation of his name and likeness. The Court further notes that the common law invasion of privacy claim is asserted as to the appropriation of Muller's name or likeness and, therefore, any allegation regarding IAS's business name or website being used is not relevant to this claim.
{¶29} Regarding Muller's common law claim for invasion of privacy, Defendant argues it is entitled to judgment as a matter of law because Muller provided consent for each use of his name or likeness and its use of Muller's name or likeness was merely incidental. In response, Muller argues that a genuine issue of material fact exists whether he effectively withdrew consent and whether Defendant has benefited from using Muller's name and image to promote OSU Airport and its services. Upon review, the Court finds that Defendant is entitled to judgment as a matter of law.
{¶30} Under Ohio law, "[t]he invasion of the right of privacy may be defined * * * as the wrongful intrusion into one's private activities in such manner as to outrage or to cause mental suffering, shame or humiliation to a person of ordinary sensibilities." Housh v. Peth, 165 Ohio St. 35, 39, 133 N.E.2d 340 (1956) (internal citation and quotation marks omitted). Specifically, "[o]ne 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." Zacchini v. Scripps-Howard Broadcasting Co., 47 Ohio St.2d 224, 227, 351 N.E.2d 454 (1976), paragraph one of the syllabus, rev'd on other grounds in 433 U.S. 562, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977). The determinative question is whether Defendant's use of Muller's name or image appropriated his "exclusive rights to his own likeness and identity." See id. at 231.
{¶31} However, "[c]onsent is generally an absolute defense to an invasion-of-privacy claim." Lunsford v. Sterilite of Ohio, LLC, 162 Ohio St.3d 231, 240, 2020-Ohio-4193, 165 N.E.3d 245; see, e.g., Englert v. Nutritional Scis., LLC, 10th Dist. Franklin No. 07AP-989, 2008-Ohio-5062, ¶ 22 ("In this case, there is no question Englert gave her consent to Nutritional Services, and, therefore, her claim for unauthorized use of likeness fails. For this same reason, her claim for invasion of privacy also fails."). Here, there is no genuine dispute of material fact as to whether Muller provided consent to Defendant for the use of his name and likeness. Muller not only gave permission for the use of his name, image, and personal background for the capstone news articles, but he also provided the relevant photographs depicting his likeness for both the capstone news articles and the January 2020 social media posts involving IAS. Moreover, Defendant did not use Muller's name or likeness outside the scope of Muller's consent.
{¶32} While the parties dispute whether Muller successfully withdrew consent thereafter or the exact timing of any such revocation, the Court finds that Muller could not withdraw his consent under the circumstances presented in this case. Furthermore, Muller acknowledged that the only reason he withdrew consent was because Defendant refused to renew the Lease or Commercial Operation Agreement with IAS. Therefore, any arguable damages stem from the alleged breach of contract, not from Defendant's tortious use of Muller's name and likeness; and, as stated above, tort law is not designed to compensate parties for losses suffered as a result of a soured contractual relationship. See, e.g., Englert at ¶ 62 (Tyack, J., concurring in part and dissenting in part) (“I concur with the majority's disposition of the * * * errors relating to invasion of privacy. Ms. Englert clearly consented to the use of her photographs. Beside that point, if Nutritional Sciences had not breached the contract, Englert would not have withdrawn her consent. Allowing her to collect for invasion of privacy would really be a back-door to recovering for breach of contract. Moreover, there is generally no recovery in tort where the parties' relationship was governed by contract."). Consequently, the Court finds that reasonable minds could come but to one conclusion that consent operates as a defense to Muller's invasion of privacy claim under these circumstances.
{¶33} Even assuming arguendo that Muller could and did successfully withdraw consent, the Court finds that Defendant's uses of Muller's name and likeness were merely incidental and not actionable. See Zacchini at 229-230, citing Restatement of Torts 2d, Section 652C (the court distinguished the "mere incidental use of a person's name and likeness, which is not actionable, from appropriation of the benefits associated with the person's identity, which is."). Indeed, "'the value of plaintiff's name is not appropriated by mere mention of it, or by reference to it in connection with legitimate mention of his public activities.'" Id. at 244, fn. 4, quoting Restatement of the Law 2d, Torts, Section 652(C). Furthermore, "[n]o one has the right to object merely because his name, or appearance, is brought before the public, since neither is in any way a private matter, and both are open to public observation." Id.; see generally Bosley v. WildWetT.com, 310 F.Supp.2d 914, 920 (N.D. Ohio 2004) ("One of the primary limitations upon the right of privacy is that this right does not prohibit the publication of matters of general or public interest, or the use of the name or picture of a person in connection with the publication of legitimate news.").
{¶34} Regarding the January 2020 social media posts, specifically, the Court finds that Muller's likeness was incidental to his role as owner and operator of IAS. The posts provide information regarding the services that tenants of OSU Airport provide. IAS, being a tenant of the OSU Airport at that time, benefited from its business being promoted. To that end, Muller provided a photograph to depict the services that IAS performs, and Defendant did not use the image in any way outside that intended purpose. Moreover, the posts do not mention Muller's name or otherwise reference him in any recognizable manner. Therefore, the Court finds that Defendant's use of Muller's image in the social media posts does not invade Muller's exclusive right to his own likeness or identity.
{¶35} With respect to the capstone news articles, the Court finds that Defendant's use of Muller's name and likeness were incidental to his voluntary involvement with the capstone program. It is undisputed that both the December 2020 and May 2021 capstone news articles were published to create awareness for CAS's capstone program. Certainly, Defendant does not become liable after the fact simply because it promoted an educational program that it may make or seek to make a profit therefrom. See generally, Zacchini at 244, fn. 4, quoting Restatement of the Law 2d, Torts, Section 652(C) ("The fact that defendant is engaged in the business of publication, for example a newspaper, out of which he makes or seeks to make a profit, is not enough to make such incidental publication a commercial use of the name or likeness. Thus a newspaper, although it is not a philanthropic institution, does not become liable * * * to every person whose name or likeness it publishes."). Furthermore, the references to Muller and his accomplishments found therein are purely informational and unactionable. See, e.g., Vinci v. American Can Co., 69 Ohio App.3d 727, 729, 591 N.E.2d 793 (8th Dist.1990) (the court found that summary judgment was appropriate because the reference to the athletes' names, likenesses, and accomplishments "within the context of accurate, historical information was incidental to the promotion of the Dixie Cups by the partnership between Minute Maid Corporation and the United States Olympic Committee."). Therefore, the Court finds that Defendant's use of Muller's image in the social media posts does not invade Muller's exclusive right to his own likeness or identity.
{¶36} For the reasons stated above, the Court finds that no genuine issues of material fact remain for trial and reasonable minds could come to but one conclusion that Defendant is entitled to judgment as a matter of law as to Muller's invasion of privacy claims. Therefore, the Court GRANTS Defendant's August 3, 2023 Motion for Summary Judgment against Plaintiff Carlos Muller.
Conclusion
{¶37} Having reviewed all the evidence, the Court finds no genuine issues of material fact remain for trial in this case. The Court finds that Defendant is entitled to judgment as a matter of law as to IAS's breach of contract claim because Defendant had legal excuse to suspend IAS's access to OSU Airport and thereafter opt not to renew its contracts with IAS. Furthermore, Defendant is entitled to judgment as a matter of law as to IAS's claim for business interference because IAS contends that it is not pursuing the business interference claim and the Court finds that the economic-loss rule would preclude the same. Therefore, the Court GRANTS Defendant's August 3, 2023 Motion for Summary Judgment against Plaintiff Imperial Aviation Services.
{¶38} Additionally, the Court finds that Defendant is entitled to judgment as a matter of law on Muller's common law invasion of privacy claim because Muller provided consent for Defendant to use his image and Defendant's uses of the same were merely incidental. Because Muller contends that he is not pursuing a claim that Defendant used his persona to sell its airport services in violation of R.C. 2741.02, Defendant is also entitled to judgment as a matter of law as to the statutory claim.
{¶39} Therefore, the Court GRANTS Defendant's August 3, 2023 motions for summary judgment pursuant to Civ.R. 56.
JUDGMENT ENTRY
{¶40} For the reasons set forth in the decision filed concurrently herewith, Defendant's motions for summary judgment are GRANTED and judgment is rendered in favor of Defendant. All previously scheduled events are VACATED. Court costs are assessed against Plaintiffs. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.