What’s On Their Minds: 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.

“So they (Petitioners) purposefully identified these people-they didn’t negligently identify them.” Chief Justice O’Connor, to counsel for Petitioners.

On July 13, 2016, the Supreme Court of Ohio heard oral argument in the case of Foley v. Univ. of Dayton, 2015-2032. At issue are these three certified questions of state law from the United States District Court, Southern District of Ohio, Western Division:

  1. What is the statute of limitations for claims of negligent misidentification?
  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?

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.

Thereafter, the stories diverge.  According to Respondents, Evan Foley knocked on the door a second time to try and apologize for the mistake.  According to Petitioners, one of the young men tried to enter their place through a kitchen window. In any event, Petitioners called the University of Dayton Police Department. Evan Foley and Michael Fagans were University of Dayton students.

When the police arrived, Petitioners identified Fagans and the Foley brothers as the individuals who had attempted to burglarize the residence. The three men were subsequently arrested, jailed, 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.

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 Respondents against Groff and Parfitt in federal court, alleging that Groff and Parfitt had negligently misidentified 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. Read the oral argument preview of this case here.

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 injury to 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.)

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.)

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.)

Lawyers Coop. Publishing Co. v. Muething, 65 Ohio St.3d 273 (1992) (courts must look to actual nature of the case rather than the form in which the action is pleaded to determine applicable 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”. )

At Oral Argument

Arguing Counsel

Timothy B. Heather, Benjamin, Yocum & Heather, LLC, Cincinnati, for Petitioner Michael Groff.

Jared A. Wagner, Green & Green, Lawyers, LPA, Dayton, for Petitioner Dylan Parfitt.

Michael A. Hill, Spangenberg, Shibley & Liber, LLP, Cleveland, for Respondents Andrew Foley, Evan Foley, and Michael Fagans.

Petitioners’ Argument

The lawyers for the petitioners divided their time, with Mr. Heather discussing the first certified question; Mr. Wagner the other two.

One easy way to resolve this case is to find that this tort does not even exist in Ohio. The Supreme Court has never expressly recognized the tort of negligent misidentification, even in the Mouse case.

If the court does find a cognizable tort here, the claim alleged against the respondents is really a defamation action disguised as a negligence action. A person simply cannot be negligently misidentified without being defamed. In making this kind of determination, the court has always held that substance trumps form.  Here the respondents are trying to put form over substance in characterizing this as a negligent misidentification case.  The central character of this claim is defamation, which is subject to a one-year statute of limitations.

The court unanimously recognized in DiCorpo that statements made to a prosecutor implicating another in criminal activity are entitled to an absolute privilege because they are part of judicial proceedings and start an investigation into possible criminal activity. The same reasoning should apply to statements made to a police officer. The privilege is based on the public policy of encouraging the reporting and investigating of crimes. The policy is based on the nature of the communication, not the nature of the tort. Absolute privilege should apply both to statements to prosecutors and to the police.

If the court agrees there is an absolute privilege here, it need not even reach the issue of qualified privilege.

Respondents’ Argument

Misidentification is an unfortunate term. Improper identification is a more accurate description of this tort. What happened here is a personal injury. When reporting someone to the police for the commission of a crime, there is a duty of care, and the breach of that duty comes about when that reporting is done recklessly or with knowledge of its falsity.

The courts have been clear that in a case like this, there are two distinct claims that can be brought. One is for defamation, and one is for negligent and improper identification, also termed misidentification. And the issue about whether this negligence claim exists or does not exist is not before this court, although it is Respondents’ position that it absolutely does. That is a fair reading of the Mouse decision.

Often multiple torts can arise from the same conduct. Just because one exists doesn’t mean the other doesn’t. While a defamation claim could have been brought in this case, defamation is not an element of negligent misidentification. The claims may be similar but one is not an element of the other. A defamation claim only contains reputational harms. But as discussed in the Mouse case, there is also a loss or confinement of liberty here, which is a personal injury in addition to a reputational harm. In this case that injury was being thrown in jail for a couple of days.  There is a reputational component to that, but that is a personal injury. There was a breach of the duty of care to carefully report a crime, resulting in arrest, confinement, and damages.

Neither absolute nor qualified privilege applies to this tort. Absolute privilege is specific to judicial proceedings. It is a privilege that should be and has been very narrowly construed.  The legislature has carved out specific immunities for specific people reporting potential crimes to the police. This is not such a circumstance. Nor does qualified privilege apply here.  That is strictly a defamation defense.

At Oral Argument

What Was On Their Minds

What Actually Happened

When Petitioners notified the police, they didn’t name Respondents by name, because they don’t know them, commented Chief Justice O’Connor. Did they embellish what happened to the police? Were there criminal consequences? Were the young men expelled from the university? Later, she commented how different the two stories in the case were-in one, the young men were polite and apologetic, in the other, obnoxious and bothersome and one tried to enter the place through a kitchen window. She noted that there was disagreement about what happened, but no disagreement that the young men were on Petitioners’ property.

Were there indictments in the case, asked Justice O’Donnell?

Were charges filed, asked Justice Pfeifer?

Does This Tort Exist?

Does Ohio even recognize a cause of action for negligent misidentification, asked Justice French, right out of the box? Was there any briefing on that in the district court? Justice O’Donnell later asked counsel for Respondents the same thing. (Respondents say the tort exists, Petitioners, that it doesn’t.) When asked his authority for saying yes, Respondents’ counsel cited to Mouse.

Has this court ever set out the elements of negligent misidentification, asked Justice Lanzinger? (no, conceded counsel for Respondents) Later, the Chief asked what those elements should be.

Isn’t the question in this case really whether this claim exists at all in Ohio, asked Justice Pfeifer?

Differentiating the Tort from Defamation

Why should the court accept Petitioners’ argument that this is defamation, not misidentification, asked Justice O’Neill? Was this a misidentification?

Is defamation an element of negligent misidentification, asked Justice O’Donnell? Later, he noted that the individuals who made the report did not misidentify the individuals who were at their home, so there was no misidentification. Chief Justice O’Connor made a similar observation. If I allege that you did something, and I am malicious in that, and am suggesting that you committed some act that you really didn’t commit, isn’t that the maliciousness that forms the basis for the defamation claim, not the misidentification, O’Donnell asked later.

How is this case distinguished from defamation, asked Justice Lanzinger? Falsely stating to the police what the actions were sounds like defamation. How is negligent misidentification different? If this claim had been filed within the statute as a defamation claim, could the respondents have received all of the remedies they are now requesting?

Could Respondents still bring a defamation claim, asked Chief Justice O’Connor? (answer: no-the statute has run.)

Wasn’t there just a language hang-up in this case, asked Justice Pfeifer?

Eek, the Mouse Case

Do Respondents read the tort of misidentification as emanating from the Mouse case, asked Justice O’Donnell? (answer: yes) Wasn’t the gist of that case the dishonor of a check, which resulted in the depositor’s incarceration? Shouldn’t that case be limited to its facts?  Wouldn’t the court be going far afield in extending it? Do the words “negligent misidentification” even appear in that opinion?

Why should the court look back to a decision in 1929 to answer the question in today’s environment of whether the court recognizes the tort of negligently misidentifying people as having committed a crime, asked Justice Pfeifer?

Other Applicable Torts

Was there a malicious prosecution count in the complaint, asked Justice Lanzinger? (when told no, she asked why not.)

Why not false arrest or malicious prosecution, asked Justice O’Donnell?

In a soliloquy, Justice Pfeifer mused that as often occurs in the law, there are fact patterns that don’t neatly fit into categories that were taught in law school. He noted that in this case, the claim was negligent misidentification not of Respondents, but of the crime committed. The mistake wasn’t in fingering Respondents as being on the property, but as to their purpose for being there. A crime was negligently misreported.


Petitioners want the court to extend the cloak of absolute privilege to negligent misidentification and also to extend it to the police, in addition to prosecutors, asked Chief Justice O’Connor? (yes, they did.)

Is the doctrine of absolute privilege or qualified privilege applicable to negligent misidentification suits, asked Justice O’Neill?

How it Looks From the Bleachers

To Professor Emerita Bettman

Like enough to make a retired torts professor weep.

First of all, I think it is a fair reading of the Mouse case to say that the court recognized a tort of negligent misidentification, as counsel for Respondents argued, even if the court did not use those exact words to describe it.  And I don’t think the tort is just limited to facts involving the bank dishonor of a check, as Justice O’Donnell suggested. If anything, in this world of the internet and social media, I think wrongful (as Respondents’ counsel insisted was the better word) identification would have even greater currency. As Justice Pfeifer suggested in his questions, and has said many times, the whole point of the common law is to evolve with the times. I think the elements of this tort, as suggested by some appellate courts, would be giving false information which results in the arrest and imprisonment of another.

BUT, some torts (think infliction of emotional distress) can be either negligent or intentional. This could be such a tort, but as Chief Justice O’Connor pointed out right out of the box, there was nothing negligent about the identification of the respondents in this case. It was clearly intentional, unlike what happened in Mouse. But a tort can’t be both intentional and negligent at the same time.

AND in addition to not being negligent, this also wasn’t a misidentification. The three individuals weren’t misidentified, as several of the justices pointed out. They were clearly the people who were on the property. The dispute is whether their purpose for being on the property was wrongly identified.

From the questioning, it sounded as if at least four of the justices—the Chief and Justices French, Lanzinger, and O’Donnell– are poised to say this tort is the same thing as defamation, or is sufficiently related to it not to be a separate cause of action. If the court so finds, the one year statute of limitations would apply, and the case would be over. But I cringed when hearing the suggestion that defamation is an element of negligent misidentification. An intentional tort can’t be an element of a negligent one, as hopefully my students would tell you.  And more mix and match occurred when Respondents’ counsel described the elements of the tort as a duty in reporting someone to the police for the commission of the crime, the breach of which was recklessly or knowingly pointing somebody out.

The argument over whether negligent misidentification exists as a separate tort reminded me of the debate some years ago over whether to recognize the tort of false light invasion of privacy, or whether that tort was too duplicative of defamation to be a separate tort.   Ultimately, in Welling v. Weinfeld, 113 Ohio St.3d 464 (2007), authored by Justice Pfeifer, the Supreme Court of Ohio joined the jurisdictions that do recognize false light invasion of privacy, although many do not, finding it too overlapping of defamation.

The problem, then, is with the first certified question. Judge Rice didn’t ask if the court recognized the tort of “negligent misidentification.” If a majority of the justices want to find there is no such tort in Ohio, or that what was pled is really a defamation claim, I don’t know what that the spirit of comity means for the answer. The court could simply decline to answer the question (as it recently did in Am. Mun. Power, Inc. v. Bechtel Power Corp. Slip Opinion No. 2016-Ohio-3431), or decline to answer it because it says there is no such tort. (By comparison, in De Vries Dairy, L.L.C. v. White Eagle Cooperative, 2012-Ohio-3828 the court was specifically asked if it recognized a cause of action for tortious acts in concert under the Restatement (2d) of Torts, § 876, and it said no).  Or, the court could elaborate and declare that it finds the tort to be one of defamation, subject to a one year statute of limitations, which would mean petitioners would win, and the court needn’t answer the other two questions.

Regardless of how it answers the questions, it seemed to me that a majority of the justices clearly favored the petitioners in this argument. Justices Pfeifer and O’Neill were sympathetic to the respondents. My student contributor David López-Kurtz and I see this differently.

To Student Contributor David López-Kurtz

It is difficult to say how the justices will rule on the three certified questions because so little time was spent discussing them. The vast majority of the time was spent discussing whether or not the Supreme Court of Ohio should recognize negligent misidentification as a distinct tort. I believe it will. While there was significant skepticism on the part of Justice O’Donnell and Chief Justice O’Connor, I believe that Justices Pfeifer and Lanzinger did the respondents a great service by clarifying the distinction between the tort of defamation and the tort of misidentification. I believe that, in no small part due to that clarification, the court will find that the tort of negligent misidentification exists in Ohio.

Justice O’Donnell and Chief Justice O’Connor each took issue early on in the respondents’ argument with the characterization of “misidentification,” since the parties identified were the parties intended to be identified – thus there was no misidentification, only identification. Justice O’Donnell went on to ask whether, should such a tort be recognized, based on Mouse, it should be limited to the facts present in that case. Respondents’ counsel said “no,” but the justice seemed unimpressed. If the questions had left off there, there would have been little chance of the court siding with the respondents and finding that the tort of negligent misidentification exists. Fortunately for the respondents, it did not.

Justice Pfeifer clarified that in the tort of negligent misidentification it is not the parties who are negligently misidentified, but the crime allegedly committed. So, looking to the elements of a tort: there is a duty of care when reporting a crime, that duty can be breached by negligently misidentifying a party as the perpetrator of a crime, and that breach can cause the damage of wrongful loss of liberty and reputation via wrongful incarceration. It is the element of damage that most significantly distinguishes negligent misidentification from defamation.

The issue remains, even if the justices decide to recognize negligent misidentification, how will they answer the three certified questions? I believe that the court will decide to recognize negligent misidentification as a tort and, thus, find that the statute of limitations is two years since the tort involves injury (arrest and imprisonment). Second, since it would then be inconsistent to allow for a claim of negligent misidentification and then preclude the pursuit of such a claim by affording blanket privilege to all communication with law enforcement, I believe that, while the Supreme Court of Ohio has previously held that statements made in the course of attorney disciplinary hearings and affidavits 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), it does not follow that the same privilege should extend to negligent misidentification and other civil actions if they involve false statements made to law enforcement. Finally, I believe that the court will find that the defense of qualified privilege is in the public interest and should apply to negligent misidentification cases, requiring plaintiffs to show either actual malice or negligent disregard for the truth in order to maintain a negligent misidentification cause of action.

Beyond the three certified questions, there is also the issue of whether or not this fact pattern is consistent with negligence at all – the identification was not negligent, it was intentional. Intentional torts and negligence-based torts may arise out of the same set of facts, but they are distinct in their elements and in their character. This, however, will be a matter for the trial court to decide once it has been affirmed that the State of Ohio does, in fact, recognize the tort of negligent misidentification.




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