Oral Argument Preview: Fleshing Out the Tort of Negligent Misidentification. Foley v. Univ. of Dayton.

Update: On November 3 2016, the court handed down a merit decision in this case. Read the analysis here.

Read the analysis of the oral argument in this case here.

On July 13, 2016, the Supreme Court of Ohio will hear oral argument in the case of Foley v. Univ. of Dayton, 2015-2032. At issue are certified questions of state law from the United States District Court, Southern District of Ohio, Western Division. The Supreme Court of Ohio agreed to answer the following questions:

“What is the statute of limitations for claims of negligent misidentification?”

“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?”

“Is the doctrine of qualified privilege applicable to claims of negligent misidentification?”

Case Background

On March 14, 2013, Plaintiffs-Respondents Andrew Foley, Evan Foley, and Michael Fagans (“Respondents”) mistakenly knocked on the front door of a townhouse shared by Defendants-Petitioners Michael Groff and Dylan Parfitt (“Petitioners”) believing that the residence was the home of a friend of Evan Foley’s. Groff opened the door, informed the three men that they were mistaken as to the occupancy of the residence, and shut the door. Evan Foley then knocked once more. Groff answered the door again and informed the three men that he had contacted the University of Dayton Police Department. Evan Foley and Michael Fagans were University of Dayton students.

When the police arrived, the petitioners misidentified Fagan and the Foley brothers as individuals who had attempted to burglarize Parfitt’s residence. The three men were subsequently arrested and charged with burglary. The criminal cases against Fagans and Andrew Foley were dismissed for lack of probable cause.  Evan Foley’s case was also subsequently resolved.

The Respondents  filed a number of claims in federal court against the University of Dayton and various employees.  The claim pertinent to this appeal is a single claim for negligent misidentification filed by the Respondents against Groff and Parfitt in federal court, alleging that Groff and Parfitt had negligently identified them to police as being responsible for a crime. On December 7, 2015, U.S. District Judge Walter Rice granted the motion to certify the three questions of state law quoted above, which the Supreme Court of Ohio agreed to answer.

Key Statutes and Precedent

R.C. 2305.09 (an action for certain, specified causes of action must be brought within four years.)

R.C. 2305.10 (an action based on a product liability, bodily injury, or injuring personal property must be brought within two years.)

R.C. 2305.11 (A) (an action for libel, slander, malicious prosecution, false imprisonment, malpractice other than an action upon a medical, dental, optometric, or chiropractic claim, or an action upon a statute for a penalty or forfeiture must be commenced within one year.)

Cromartie v. Goolsby, 2010-Ohio-2604 (8th Dist.) (statute of limitations cannot be circumvented by reclassifying claims; one year statute applies to statements given to police.)

Doe v White , 97 Ohio App.3d 585, 647 N.E.2d 198 (2nd Dist.1994) (Substance of the claims controls, regardless of nomenclature.)

Love v. City of Port Clinton, 37 Ohio.St.3d 98, 99, 524 N.E.2s 166 (1988) (an action for damages against a police officer arising from the officer’s subduing and handcuffing a claimant was found to be in the nature of assault and battery rather than negligence, and thus was subject to the one-year statute of limitations.)

M.J. DiCorpo, Inc. v. Sweeney, 69 Ohio St.3d 497, 634 N.E.2d 203 (1994) (syllabus) (“An affidavit, statement or other information provided to a prosecuting attorney, reporting the actual or possible commission of a crime, is part of a judicial proceeding. The informant is entitled to an absolute privilege against civil liability for statements made which bear some reasonable relation to the activity reported”. )

Mouse v. Cent. Sav. & Trust Co., 120 Ohio St. 599, 167 N.E. 868 (1929) (Plaintiff wrongfully arrested after bank negligently reported to police he had bounced a check. Court arguably recognizes tort of negligent misidentification.)

Popke v. Hoffman, 21 Ohio App. 454, 153 N.E. 248 (1926) (An informant’s statements to authorities regarding the commission of a crime, if given in good faith, are subject to a qualified privilege. In such situations, the burden is on the plaintiff to show malice in fact in order to recover from the informant.)

Petitioners’ Argument

The Petitioners filed separate briefs, but their arguments are consolidated here.

Petitioners first argue that there is no specific statute of limitations for negligent misidentification, but the claim in this case is in the nature of defamation, which includes false communications made to others, and is thus subject to the one-year statute of limitations in R.C. 2305.11(A). Previous precedent dictates that substance trumps form in making this determination. In this case, that means applying the one-year statute of limitations. There is no dispute that Respondents’ claims will be barred if the one-year statute of limitations applies. If the court agrees, it need not answer the other certified questions.

Petitioners next argue that the absolute privilege recognized in DiCorpo be extended to statements made to the police, in this case the statements made to the UDPD regarding possible criminal activity. The court has already held that statements made in the course of attorney disciplinary hearings and an affidavit filed with the county prosecuting attorney accusing another person of a crime are absolutely privileged, as long as the statements bear some reasonable relation to the proceedings. Likewise, the privilege should extend to negligent misidentification and other civil actions, if they involve allegedly false statements made to law enforcement.

There is no practical distinction to be made between a person reporting a possible crime to a prosecuting attorney or to the local police department.  In either case, once the report has been made, it is the responsibility of either the prosecutor or the department to investigate and decide whether following up on the report is appropriate. In the present case, the only available option, given the time of night, was to contact law enforcement since the prosecutor’s office would not open until the next morning.

There is no indication that the police were called in bad faith. The statements to police were reasonably related to the purpose of reporting a potential crime. It is a crime under R.C. 2921.22 not to report a felony. The Respondents were charged with burglary, a felony. Failing to apply absolute privilege would be to place Groff in a “catch-22” situation, facing criminal liability for failing to report a crime and facing civil liability for reporting what he saw.

Finally, Petitioners argue that if the court does not find that statements made to police are absolutely privileged, the court should find that the defense of qualified privilege applies in this situation. Prior to DiCorpo, statements made to a police officer implicating another in criminal activity have at least been protected by a qualified privilege.  Qualified privilege is well-recognized in Ohio as extending to protect those who report crimes to the police. There is nothing here to suggest that this standard has changed.

Respondents’ Argument

Negligent misrepresentation is a common-law claim separate and distinct from defamation. The elements of the two torts are different. If the court accepts the Petitioners’ argument and reduces this case to defamation, it would in effect eliminate the tort of negligent misidentification altogether. Simply because claims may overlap is not a reason to eliminate them.

A claim is not automatically a defamation claim when it involves a communication. Respondents argue that if any communication to law enforcement becomes a defamation claim, there could never be a claim for negligent misidentification, since negligent misidentification, by its very elements, requires communication to law enforcement. The claim for negligent misidentification in this case includes additional elements not found in a defamation claim, namely, being arrested.

Thus, Respondents argue, the court should find the statute of limitations for this claim is two years as it involves injury (arrest and imprisonment), or, if not, four years as an uncategorized negligence claim.

Finally, Respondents argue that because this is not a defamation claim, absolute and qualified immunity do not apply. Even if the court analyzes this case under a defamation standard, absolute immunity would never apply because there is no absolute privilege for purposefully, knowingly, or negligently providing false information to law enforcement. Application of absolute privilege has been both narrow and limited, and has never been extended to statements made to police. At most, qualified privilege has been applied to such statements, but only in a defamation context, which has no application to this case.

Petitioner Groff’s Proposed Proposition of Law No. 1

The substance of a negligent misidentification cause of action dictates application of the one year statute of limitations found in R.C. 2305.11 (A).

Petitioner Parfitt’s Proposed Proposition of Law No. 1

In Ohio, the statute of limitations for a negligent identification/misidentification claim is one year per R.C. 2305.11(A).

Petitioner Groff’s Proposed Proposition of Law No. 2

The doctrine of absolute privilege, which applies to claims of negligent misidentification, protects persons who make statements to law enforcement officers implicating other persons in unlawful activities.

Petitioner Parfitt’s Proposed Proposition of Law No. 2

The doctrine of absolute privilege is not limited only to defamation claims and, when it is applicable, the doctrine shields individuals from any and all civil liability regardless of the form of the claim.

Petitioner Groff’s Proposed Proposition of Law No. 3

The doctrine of qualified privilege applies to claims of negligent misidentification.

Petitioner Parfitt’s Proposed Proposition of Law No. 3

The absolute privilege from civil liability recognized in M.J. DiCorpo, Inc. v. Sweeney, 69 Ohio St. 3d. 497 (1994) extends to statements made to police officers.

Petitioner Parfitt’s Proposed Proposition of Law No. 4

Claims for negligent identification/misidentification based on statements made to police officers implicating another person in potential criminal activity are entitled to a qualified privilege.

Votes to Accept the Case

Yes: Chief Justice O’Connor, and Justices Lanzinger, French, and Kennedy.

No: Justices Pfeifer, O’Donnell, and O’Neill

Student Contributor: David López-Kurtz

 

 

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