Foley v. Univ. of Dayton (Slip Opinion)

2016 Ohio 7591, 81 N.E.3d 398, 150 Ohio St. 3d 252
CourtOhio Supreme Court
DecidedNovember 3, 2016
Docket2015-2032
StatusPublished
Cited by13 cases

This text of 2016 Ohio 7591 (Foley v. Univ. of Dayton (Slip Opinion)) 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
Foley v. Univ. of Dayton (Slip Opinion), 2016 Ohio 7591, 81 N.E.3d 398, 150 Ohio St. 3d 252 (Ohio 2016).

Opinions

Kennedy, J.

I.Introduction

{¶ 1} The United States District Court for the Southern District of Ohio, Western Division, submitted three certified questions of Ohio law in accordance with S.Ct.Prac.R. 9.01:

1. What is the statute of limitations for claims of negligent misidentifi-cation?
2. Is the doctrine of absolute privilege applicable to claims of negligent misidentification and, if so, does it extend to statements made to law enforcement officers implicating another person in criminal activity?
3. Is the doctrine of qualified privilege applicable to claims of negligent misidentification?

{¶ 2} For the reasons that follow, we conclude that a plaintiff does not have a cause of action in tort for negligent misidentification and that it would contravene public policy to allow such a claim. Accordingly, because we hold that no cause of action for negligent misidentification exists in Ohio, the certified questions are moot.

II. Facts and Procedural History

{¶ 3} These certified questions originate from a lawsuit filed on March 13, 2015. Respondents here, Evan Foley, Andrew Foley, and Michael Fagans, alleged that on March 14, 2013, they knocked on the door of a townhouse on the University of Dayton’s campus, angering the occupant, petitioner Michael Groff, who then called the police. Based on that call, the Foleys and Fagans were arrested for burglary. On March 22, 2014, the criminal charges against Andrew Foley and Fagans were eventually dismissed, and the charge against Evan Foley was resolved.

{¶ 4} Respondents asserted claims of negligence against Groff and petitioner Dylan Parfitt, Groffs roommate, in the federal district court. Petitioners filed motions for judgment on the pleadings or, in the alternative, to certify questions of state law to this court, asserting that a claim of negligent misidentification sounds in defamation and, because defamation is subject to a one-year statute of [254]*254limitations, respondents’ claim was time-barred. Petitioners also argued that because the law in this area is unsettled, the federal court should certify several questions to the Supreme Court of Ohio. The federal district court has now certified three questions to this court and we agreed to answer those questions. 144 Ohio St.3d 1503, 2016-Ohio-652, 45 N.E.3d 1048.

III. Law and Analysis

{¶ 5} The first Ohio court to recognize the tort of negligent misidentification was the Sixth District Court of Appeals in Wigfall v. Soc. Natl. Bank, 107 Ohio App.3d 667, 669 N.E.2d 313 (6th Dist.1995). The court concluded:

Our careful reading of [Mouse v. Cent. Sav. & Trust Co., 120 Ohio St. 599, 167 N.E. 868 (1929)] and of [Walls v. Columbus, 10 Ohio App.3d 180, 461 N.E.2d 13 (10th Dist.1983)] leads us to the conclusion that there is a tort cause of action, separate from defamation, which exists in Ohio for persons who are negligently improperly identified as being responsible for committing a violation of the law, and who suffer injury as a result of the wrongful identification.

Id. at 673.

{¶ 6} We disagree.

{¶ 7} In Mouse, a bank refused to pay a check written by the plaintiff, even though he had sufficient funds in his account. The payee filed an affidavit claiming that Mouse had issued the checks without sufficient funds. Mouse was arrested and jailed. Mouse claimed in an action against the bank that the refusal to pay the checks was the proximate cause of his arrest and confinement. The trial court directed a verdict for the bank on the ground that the bank’s action was not the proximate cause of Mouse’s arrest, a court of appeals affirmed, and Mouse appealed.

{¶ 8} We recognized that Mouse was arrested on a charge that was “concededly erroneous,” 120 Ohio St. at 611, 167 N.E. 868, and Mouse could have a claim for false arrest, id.

{¶ 9} In reversing a judgment of the court of appeals, we held that the intervention of a person responsible for issuing the warrant did not absolve the bank “upon the ground of lack of proximate cause, if the injury ensued in the ordinary course of events and the intervening cause was set in motion by the defendant.” Mouse at paragraph one of the syllabus. Moreover, although G.C. 710-132 shielded banks from liability when a bank, without malice, mistakenly denied payment of a check unless the depositor “allege[d] and prove[d] actual damage,” id., the arrest and imprisonment of Mouse “constitute^ an actual [255]*255damage,” Mouse at paragraph three of the syllabus. Therefore, the court remanded the case to the trial court for a determination on false arrest, stating:

What could be a more real and existing damage to a person of good reputation than confinement in the county jail upon a charge concededly erroneous? Such damage is actual, so real, present, and existing, in fact, that the unlawful restraint by one person of the physical liberty of another gives rise to a cause of action all its own, namely, that of false arrest.

(Emphasis added). Mouse at 611.

{¶ 10} In Wigfall, the Sixth District also misread the Tenth District Court of Appeals’ decision in Walls v. Columbus, 10 Ohio App.3d 180, 461 N.E.2d 13 (10th Dist.1983). The plaintiff in Walls claimed that the state bureau of motor vehicles had acted negligently when it supplied incorrect information to a police officer, which led to Walls’s arrest. The Court of Claims dismissed the action prior to trial. Relying on a general discussion of torts and on Annotation, Liability for Negligently Causing Arrest or Prosecution of Another, 99 A.L.R.3d 1113 (1980), the appellate court reversed the judgment of the Court of Claims and remanded the matter for trial, stating that there was potential liability under the allegations of the complaint. The appellate court noted, “[I]t has been recognized in Ohio through the Mouse case, supra, that giving false information which results in the arrest and imprisonment of another may be grounds for tort liability.” Walls at 182.

{¶ 11} Other Ohio appellate courts have discussed claims for negligent misiden-tification. In Breno v. Mentor, 8th Dist. Cuyahoga No. 81861, 2003-Ohio-4051, 2003 WL 21757504, ¶ 20, while recognizing a cause of action for negligent misidentification, the court noted that the cause had not been pled. And in Woods v. Summertime Sweet Treats, Inc., 7th Dist. Mahoning No. 08-MA-169, 2009-Ohio-6030, 2009 WL 3806179, ¶ 36-38, the court held that summary judgment was proper because no set of facts were established to support a claim for negligent misidentification.

{¶ 12} However, this court has never recognized the tort of negligent misidenti-fication, and we decline to do so today. In the past, we have recognized a new avenue of civil redress when there was a compelling public-policy reason to do so. See Collins v. Rizkana,

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2016 Ohio 7591, 81 N.E.3d 398, 150 Ohio St. 3d 252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foley-v-univ-of-dayton-slip-opinion-ohio-2016.