*1
June
granted
On
writ of
peremptory
prohibition.
1404,
Probate Court and its have offered no new fact legal argument warrant reconsideration. We got this case time. A right first motion for reconsideration not the vehicle party should be permitted to reargue positions. earlier motion reconsider should be denied. I dissent.
O’Connor, C.J., concurs in foregoing opinion. Waldick, Juergen A. Allen County Prosecuting Attorney, and Terri L. Kohl- rieser, Prosecuting Attоrney, Assistant for relator. Fox, K. County
Matthew Mercer Prosecuting Attorney, Amy B. Ikerd and Hinders, Andrew J. Prosecuting Attorneys, Assistant for respondents. Haverfield, David W. urging denial the motion for reconsideration for amicus curiae, Public Children Services of Ohio.
Foley University Dayton et al. v. al. et
I.Introduction Ohio, District for the Southern The United States District Court {¶ 1} Division, of Ohio law accordance questions three certified submitted Western 9.01: S.Ct.Prac.R. for misidentifi- negligent of limitations claims 1. What is the statute cation? of negligent to claims applicable Is absolute privilege
2. the doctrine of law so, made to and, if it extend to statements does misidentification in criminal person activity? officers another implicating enforcement of negligent to claims privilege applicable Is qualified the doctrine of misidentifiсation? follow, does not have plaintiff that that we conclude For the reasons that it would contravene and negligent action in tort for misidentification
cause of cause of we hold no Accordingly, because to allow such a claim. public policy questions the certified exists action for misidentification negligent moot. History and Procedural
II. Facts 13, 2015. on March originate from a lawsuit filed questions These certified Fagans, alleged here, Foley, and Michael Foley, Evan Andrew Respondents University of of a townhouse on on the door they on March knocked Groff, then Michael petitioner campus, occupant, Dayton’s angering call, were arrested Foleys Fagans Based police. on called Foley Andrew against charges the criminal On Mаrch burglary. dismissed, Foley Evan against the charge eventually were Fagans resolved. against petitioner Groff claims of asserted Respondents filed Petitioners roommate, court. Parfitt, federal district
Dylan
Groffs
alternative,
certify
or,
questions
in the
on
pleadings
judgment
motions
misidentification
claim of
court, asserting that a
law to this
of state
one-year
statute
and,
subject
is
defamation
sоunds
defamation
because
limitations, respondents’ claim was time-barred. Petitioners also
argued
unsettled,
because the law in this area
court
the federal
should certify several
to the
questions
Supreme Court of Ohio. The federal district court has now
questions
certified three
court
we agreed
questions.
answer those
1503,
III. Law and
first
recognize
the tort of negligent misidentification
Apрeals
Bank,
was the Sixth District Court of
in Wigfall v. Soc. Natl.
107 Ohio
(6th Dist.1995).
App.3d
Id. at 673. disagree. We
{¶ 6} Mouse, In a bank a pay by refused check written the plaintiff, {¶ 7} even though had he sufficient in payee funds his account. The an filed affidavit claiming that Mouse had issued the without checks sufficient funds. Mouse was jailed. arrested in and Mouse claimed an action against the bank that the refusal pay the checks was the proximate cause of his arrest and confinement. The trial court directed a verdict for the bank on ground the that the bank’s action was not proximate arrest, affirmеd, the cause of Mouse’s of appeals court Mouse appealed. that We was charge Mouse arrested on a was “conceded- erroneous,”
ly
intervention of a person for responsible issuing the warrant did absolve the bank “upon ground cause, the of lack proximate of if the injury ensued ordinary course of events and the intervening by cause was set in motion defendant.” Mouse at Moreover, one of paragraph syllabus. although G.C. 710-132 bank, shielded banks from liability malice, when without mistakenly denied payment of a check “allege[d] unless the depositor prove[d] actual id., damage,” imprisonment arrest and of Mouse an actual “constitute^ Therefore, the court syllabus. three of the paragraph at damage,” Mouse arrest, stating: on false trial court for determination the case to the remanded good to a existing damage person be more could real What concededly jail charge the county upon than confinement reputation actual, real, fact, present, existing, damаge so Such erroneous? another person liberty of the physical restraint one unlawful own, arrest. namely, all cause of action its gives rise false added). at 611. (Emphasis Mouse also misread the Tenth District Court In Sixth District Wigfall, (10th Columbus, App.3d in Walls v.
Appeals’ decision
Dist.1983).
motor
that the state bureau of
vehicles
Walls claimed
plaintiff
The
officer,
police
to a
it
incorrect information
suрplied
had acted
when
negligently
prior
the action
The Court
Claims dismissed
which led to Walls’s arrest.
Annotation, Liability
and on
general
discussion
torts
Relying
trial.
on
for
Another,
fication,
past,
In the
we have
today.
decline to do so
we
reason to do so.
a compelling public-policy
of civil
when there was
avenue
redress
(1995)
Rizkana,
65,
(recognizing
N.E.2d 653
v.
73 Ohio St.3d
652
Sеe Collins
based on sexual
policy
discharge
public
cause
action
violation
wrongful
464, 2007-
discrimination);
Weinfeld,
v.
113 Ohio St.3d
Welling
harassment or
false-light
tort of
invasion
Ohio-2451,
(recognizing the
consortium);
(1912)
Flandermeyer
Cooper,
v.
85 Ohio St.
“Ohio like the common law has English long recognized before right in tort recover for the misuse of civil and criminal causing actions as means of harm.” Trussell v. Corp., Gen. Motors 53 Ohio St.3d (1990). Since at least has the tort of malicious Buchanan, (1834). prosecution. Wright Anderson v. prosecution Malicious a prosecution established when is initiated or continued with malice and probable cause, without prosecution injured favor, has ended party’s and in cases founded on civil proceedings, injured party seizure or his property has during prior proceedings occurred. at 144. See Trussell state, prosecution Malicious but applies only also to an individual or corporation. misidentification, however, Id. Recognizing would diminish the tort prosecution of malicious to mere negligence action in turn would victim a an expose eyewitness of crime or to civil an liability for mistake, honest thereby turning eyewitnesses victims of crime and into “guaran- Mellon, tors оf accuracy of their identifications.” Turner v. 41 Cal.2d P.2d While we must balance the of public policy right interests and the relief, civil we also believe that a line should be drawn so citizens who good faith report crimes come as eyewitnesses forward crimes can do so without fear liability. of civil Ohioans not limited the tort of malicious prosecution seeking
{¶ 16} *5 1823, redress for an injury by caused anоther’s false reporting of crime. Since we recognized have tort of defamation. Goodenow v. 1 60 Tappan, (1823). 1863, Since have we the tort of or false or wrongful arrest Steinruck, 213, (1863). imprisonment. Spice William T. v. 14 & Son Ohio St. 216
257
false-light
invasion of
And,
2007,
privacy.
also
the tort
¶
IV. Conclusion for the tort is cause action Ohio conclude there no We the questions we decline answer Accordingly, misidentification. negligent District of for the District Court Southern by law certified the United States Ohio, Division, moot. they because Western JJ., French, Lanzinger,
O’Connor, C.J., O’Donnell, concur. Pfeifer, J. O’Neill, J., dissents, by jоined with an opinion O’Neill, J., dissenting. I Respectfully, must dissent. citizens of the state limiting in tort Rather than further recourse to us the United certified Ohio, questions I would to answer the proceed Western Division. District of District Court the Southern
States misidentification case law on reading a narrow majority adopts public selectively by appealing correctness of its position bolsters the then us. crimes, befоre ignoring questions all while reporting in favor of policy law, case I will address the simple, that this ease is agree do not in turn. procedure policy, guiding principle the fundamental alleging negligence, In all cases obeyed, and risk duty defines the to be reasonably perceived to be risk “[t]he range apprehen- relation; others within the risk another or to
imports it is *6 258 Co., (1928). v. Palsgraf Long
sion.”
Island RR.
248 N.Y.
fact that in recognized we the intentional tort of false arrest v. Mouse Cent. Sav.
&
167
pleading
Trust
120
St.
N.E. 868
does not foreclose
negligence
wrongful
cause in
the
an
alleging
alleged
identification of
wrongdoer
by a
should have
no
person
true,
known there was
crime. The same is
fist,
car,
example,
accidentally
when someone
another
or
strikes
a bullet:
the existence of the tort of
does
battery
not foreclose
in
pleading
cause
if
negligence
might
the evidence
show that the conduct was unintended rather
court,
than
phase
intended. And at the
in a
pleadings
federal district
where
underlying
pending,
matter is
it may
plead
be wise to
both the intentional
unintentional tort because a court could
that phase
recovery
decide at
on one
of the causes of action
given
is unavailable
the facts that were pled. See Bell
Corp.
(2007);
Atlantic
v.
550
127
Twombly,
U.S.
929
S.Ct.
L.Ed.2d
Iqbаl,
U.S.
129 S.Ct.
L.Ed.2d
Ashcroft
There is
to
from
glaring
plaintiff
conclusion
draw
Mouse.
had
The
pled his claim in
negligence,
contributory
defendant answered alleging
negligence,
analyzed
and this court
the claim one
in
sounding
as
while
ruling on the issue whether an intervening
proximate
act cuts off
causation.
short,
at
Mouse
600. In
we reviewed Mouse
traditional
applying
negligence law
back
dating
years.
some 200
guidance
Id. Ohio courts have followed
Mouse
have drawn an obvious conclusion from it:
this court
duty
allegations
to
make
to
if
law enforcement
one
know
reasonably
should
Columbus,
allegations
those
are untrue. E.g., Walls v.
10 Ohio App.3d
(10th Dist.1983).
recognize majority cause opinion mistaken as to the import its already decision. There is cause action negligence. sweep With of a pen, majority effectively what negates previously we an be legal duty falsely actionable not to accuse the innocent. majority’s The the public policy discussion of its supporting decision is
one dimensional. can readily agree public policy favors the reporting crime. But public policy does not favor inаccurate of crime or the reporting vindication of a personal quarrel through embellished or inaccurate reports Today, crime. Ohio loses an bulwark important against these risks to the public. If we are going talk talk it all public policy, let’s about from realistic climate electronically enhanced today’s The bottom line is
perspectives. on call things say сan a 9-1-1 response, you there are some heightened police those who regularly reports news on cavalry out force. The bring that will or reports to inaccurate false injured police response killed during are threats respond appropriately to be going If able police crime.1 our era, it will can trust information received. they modern be becаuse *7 duty in to a of this area is enforce range of the needs balance appropriate out system. go Let word through justice the civil accurately report to crime crime, if of a and you your neighbor accuse wrongfully across land in act, day jail your negligent your in summarily placed upon is based neighbor court will arrive. adequate in a modifies law case lacks an majority Finally, law, it court to holding. change If this wants sweeping
foundation for such and us system in the comes before do in a case that arises state’s should so law, the of duty question the existence of Although on direct appeal. duty to determining context a case vital whether circumstances and of 314, David, 318, Ohio St.3d exists. Mussivand Beavercreek, Ohio, attempting 2014, police that a man was August repоrted to 1. In a 9-1-1 caller Charged Wing, Not Be pointing it in a Walmart store. 911 Caller Will to load a at children rifle 2016; (Apr. 7, updated Huffington Giving Shooting, The Post Cops Fatal Police Bad Before Info 18, 2016), http://www.huffingtonpost.com/entry/ronald-ritchie-john-crawford_us_ at Apr. available (accessed 2016). man, III, holding 19, was The John Crawford October 57065a21e4b0b90ac2714e86 by police. was shot killed toy pellet gun had a shelf in the stоre. Crawford that he taken off Cleveland, 2014, person who was reported police in that a a 9-1-1 to In caller November gun was gun juvenile” pointing a recreation center “probably was around outside shooting MacDonald, ‘significant’ by police “probably ivorker fake.” Errors radio of factor fatal (Dee. 28, 2105), http://www.cleveland.com/ Rice, says, at prosecutor available Tamir Cleveland.com (accessed 2016). 19, dis- The metro/index.ssf/2015/12/errors_by_police_radio_workers.html October scaring people gun with a did not responding person was but patcher that the told the officers Responding officers probably gun probably was fake. report person was a child or that the that the immediately upon arriving Rice at the scene. Tamir shot killed Avon, Ohio, 2016, police man in Arabian July reported that a traditional In a 9-1-1 caller Johnson, Grinberg For during cell-phone garb pledged allegiance conversation. & had to ISIS 5, 2016), http: visitor, (updated July at ugly apology, available CNN Muslim encounter leads 2016). (accessed 19, responded //www.cnn.eom/2016/07/03/us/ohio-false-isis-report/ Police October determining that the guns of Arab Emirates before and handcuffed a citizen the United drawn man, seeking treatment medical The had been man had made statements related ISIS. light States, hospitalized stroke. during for a collapsed in the United encounter See, e.g., reports Victim examples property damage to false of crime. There due are also 7, 2016), home, damage Washington (September police The Post 911 call sues Ohio over fake https://www.washingtonpost.com/national/victim-of-fake-911-call-sues-ohio-police-over- available at (accessed October damage-to-home/2016/09/07/458c5aee-74fd-lle6-9781-49e591781754_story.html 2016). of a in a duty existence action is a question law for the (1907), court to Harvey determine. See Railroad Co. v. Ohio St. 83 N.E. 68. There is no formula for ascertaining duty whether a “ * * * Duty ‘expression exists. is the court’s of the sum tоtal of those considerations policy say lead law the particular (4th ed.1971) (Prosser, plaintiff is entitled to protection.’ Law Torts pp. 325-326.) Any may number of considerations justify imposition duty circumstances, particular including guidance our history, continually concepts refined justice, morals and the convenience rule, (Prosser, and social judgment as to where the loss fall. should ” * * * 15). (1953), Palsgraf Rеvisited 52 Mich.L.Rev. Weirum v. RKO General, Inc. 15 Cal.3d Cal.Rptr. 539 P.2d sic.) (Ellipses Id. We questions should answer the submitted the federal
{¶ court. 27} two-year would hold that the statute of limitations for actions for bodily injury, *8 2305.10(A), R.C. applies one-year because the statute of limitations in R.C. 2305.11(A) not, terms, does its plain govern suits I negligence. would further hold that qualified absolute privileges are not applicable, because there is no intеrest sufficiently justify important placing the foreseeable risks of inaccurate reporting upon Keeton, of crime person. misidentified Dobbs, Owen, Torts, Keeton & Prosser Keeton on the Law Section * * * * * * (5th Ed.1984) (“The idea, of privilege upon defense rests conduct otherwise would be actionable is to escape liability because the defendant is acting furtherance of soсial some interest of which is importance, entitled to protection even at the expense uncompensated harm to the plaintiffs reputation”). juries And I believe that are better able determine the person’s reasonableness of a reporting inaccuracies than crime are courts. Respectfully, dissent. J., concurs in foregoing opinion. Pfeifer, Green,
Green & Lynch, Jane M. A. Wagner, Dylan Jared for petitioner Parfitt. Heather,
Benjamin, L.L.C., Heather, Yocum & P. Timothy and R. David Weber, petitioner Michael R. Groff. Liber,
Spangenberg, Shibley L.L.P., Hill, & Michael A. and Dennis R. Lans- downe, respondents.