Merit Decision: Court Nixes Tort of Negligent Misidentification. Foley v. Univ. of Dayton.

“Public policy…encourages all citizens to report crime and to come forward to aid law-enforcement officers during the investigation of those crimes. The tort of negligent misidentification would have a chilling effect on that public policy.”

Justice Sharon Kennedy.

On November 3, 2016, the Supreme Court of Ohio handed down a merit decision in Foley v. Univ. of Dayton,  2016-Ohio-7591. In a 5-2 opinion written by Justice Kennedy, and joined by Justices Lanzinger, French, O’Donnell, and Chief Justice O’Connor, the court held that Ohio does not recognize the tort of negligent misidentification, and mooted the certified questions sent by the United States District Court, Southern District of Ohio, Western Division: These were the questions:

  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?

The case was argued November 3, 2016.

Case Background

Respondents Andrew Foley, Evan Foley, and Michael Fagans knocked on the door of a townhouse on the University of Dayton campus, mistakenly believing it belonged to a friend of Evan’s. Instead, the angered occupant, petitioner Michael Groff, called the police.  Based on the call, the three respondents were arrested for burglary.  The criminal charges against Andrew Foley and Fagans were dismissed, and the charge against Evan Foley was resolved. The Foleys and Fagans filed suit in federal court against Groff and his roommate petitioner Dylan Parfitt. At the request of the petitioners, Judge Rice certified the above questions to the Supreme Court of Ohio.

Read the oral argument preview of this case here and an analysis of that argument here.

Key Precedent

Mouse v. Cent. Sav. & Trust Co., 120 Ohio St. 599, 167 N.E. 868 (1929)

(Case Syllabus):

  1. The mere fact that the intervention of a responsible human being can be traced between the defendant’s alleged wrongful act and the injury complained of does not absolve him upon the ground of lack of proximate cause if the injury ensued in the ordinary course of events, and if the intervening cause was set in motion by the defendant.
  2. Where the record shows that a bank, through mistake or error and though without malice, has refused payment of a check which should have been paid, and that the payee of the check, after consulting with the bank and making an investigation into the circumstances and after having been assured that the depositor has no account, has thereafter sworn out a warrant for the arrest of the depositor, under which warrant such depositor has been confined in jail, it is reversible error for the trial court to direct a verdict for the defendant bank upon the ground that as a matter of law such nonpayment of the check is not the proximate cause of the arrest of the depositor.
  3. Under Section 710-132, General Code, the arrest and imprisonment of the depositor because of the nonpayment, through mistake or error and though without malice, of a check which should have been paid, constitutes an actual damage.

Dailey v. First Bank of Ohio, 2005-Ohio-3152 (public policy favors exposure of crime.)

Trussel v. Gen Motors, 53 Ohio St.3d 142 (1990) (Ohio law permits the right to recover in tort for misuse of civil and criminal actions.)

Case Analysis

While declining to recognize the tort of negligent misidentification, the court simplified a very muddled set of oral arguments.

The Mouse Trap

This 1929 case is what the respondents used as a springboard to persuade the court that it had already recognized the tort of negligent misidentification, separate from defamation. The Sixth District Court of Appeals so held in 1995. The majority in Foley said the Sixth District and the respondents were wrong to so conclude. According to Justice Kennedy, the Supreme Court of Ohio did not recognize the tort of negligent misidentification in Mouse, but rather remanded the matter back to the trial court for a determination of false arrest.  And while other courts of appeals have since discussed procedural aspects of claims for negligent misidentification, none validated such a claim.  In Foley, the court is totally clear that the court has not recognized this tort, and declines to do so.

The Recognition of New Torts

The court has recognized new torts “when there was a compelling public policy reason to do so.” Here are some examples (as a torts professor I have taught them all):

So, why not a new tort for negligent misidentification? Because, says Justice Kennedy, it would have a chilling effect on the public policy of encouraging citizens to come forward and report crimes.

There is Plenty of Other Civil Redress

Ohio recognizes the torts of malicious prosecution, defamation, false arrest, and false-light invasion of privacy for use in the appropriate circumstance. Adding “negligent misidentification” into the mix would expose the victim or eyewitness of a crime to civil liability for an honest mistake. “[C]itizens who in good faith report crimes or come forward as eyewitnesses to crimes can do so without fear of civil liability,” Kennedy wrote.

Ohio Stays Mainstream

The majority cites a number of cases to demonstrate that the majority view in the country is not to recognize the tort of negligent misidentification.

What Happens to this Case?

The court declined to answer the certified questions sent from the Federal court, finding them to be moot.

Justice O’Neill’s Dissent

Justice O’Neill criticizes the majority for being too rigid in its understanding of this tort. He does not agree that the recognition of an intentional tort for false arrest forecloses a negligence action alleging wrongful identification of an alleged wrongdoer by a person who should have known there was no crime. As he notes, many tortious actions can be either intentional or negligence (but not both at the same time). My torts students know this well. He believes the high court actually analyzed the claim in Mouse under traditional negligence principles.  That was my reading of it as well.

O’Neill also takes issue with the majority’s discussion of the public policy supporting its decision. While he agrees that public policy favors the reporting of crime, he argues that public policy does not favor the inaccurate reporting of crime, or the reporting of crime to assuage a personal grievance.

Finally, O’Neill argues that the majority has modified tort law “in a case that lacks an adequate foundation for such a sweeping holding.” He believes any change in tort law should come about in a case that arises in the state court system, fully developed, on direct appeal. While acknowledging that the existence of a duty is a question of law, (something else my torts students learned often and well), “the circumstances and context of a case are vital to determining whether a duty exists.”

O’Neill’s Answers to the Certified Questions

Justice O’Neill would answer the certified questions as follows:

  1. The statute of limitations for negligent misidentification is two years.
  2. and 3. Neither absolute nor qualified privilege apply “because there is no public interest sufficiently important to justify placing the foreseeable risks of inaccurate reporting of crime upon the misidentified person.”

O’Neill also believes a jury is in the best position to determine the reasonableness of a person’s inaccuracies in reporting a crime.

Justice Pfeifer joined this dissent.

Concluding Observations

As I noted after argument, this case was a muddle. I wrote:

“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 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.,  2016-Ohio-3431), or decline to answer it because it says there is no such tort.” So, the court took the latter course.  I also noted that it was very clear that a majority of the justices favored the petitioners in the case.

To me, the majority’s take on Mouse is puzzling. I read Mouse as a negligence action, at least as to the bank, and the question was whether the bank’s negligence (erroneously refusing to pay a check even though there were sufficient funds in the account) was cut off by the intervening act (which was intentional) of the payee/merchant who filed the affidavit leading to Mouse’s arrest for issuing checks without sufficient funds. Whether an intervening action breaks the chain of causation is a very common question for the factfinder in a negligence action.  In Mouse the court held the bank’s original action was not cut off as a matter of law in this circumstance. The bank’s negligence in Mouse wasn’t given a name, but negligent misidentification is a fair reading to me.

And yet, while I read Mouse as a negligence action as to the bank, and agree with Justice O’Neill that the tort of negligent misidentification makes sense as a tort, I don’t think what happened in the Foley case was negligent at all—I think it was intentional.  So, as several of the justices noted, malicious prosecution might be the correct cause of action here, but apparently the plaintiffs missed the one year statute of limitations on that or another intentional tort.

One thing is becoming apparent. The court is uncomfortable answering certified questions in a vacuum.  The justices like a fully developed record. They made that clear in Am. Mun. Power, Inc. v. Bechtel Power Corp. Maybe what this means is the court will be more circumspect in accepting certified questions from federal court.

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