[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Foley v. Univ. of Dayton, Slip Opinion No. 2016-Ohio-7591.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.



                         SLIP OPINION NO. 2016-OHIO-7591
                  FOLEY ET AL. v. UNIVERSITY OF DAYTON ET AL.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
 may be cited as Foley v. Univ. of Dayton, Slip Opinion No. 2016-Ohio-7591.]
Certified questions of state law—No cause of action exists in Ohio for the tort of
        negligent misidentification—Questions certified by the federal court are
        moot.
    (No. 2015-2032—Submitted July 13, 2016—Decided November 3, 2016.)
                ON ORDER from the United States District Court for the
                     Southern District of Ohio, Western Division,
                 Certifying Questions of State Law, No. 3:15-cv-96.
                               _____________________
        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:
                             SUPREME COURT OF OHIO




                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?


        {¶ 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, Groff’s 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




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                                January Term, 2016




misidentification sounds in defamation and, because defamation is subject to a
one-year statute of limitations, 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




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                             SUPREME COURT OF OHIO




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[d] an actual
damage.”    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




                                          4
                                January Term, 2016




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.” Id. at
182.
         {¶ 11} Other Ohio appellate courts have discussed claims for negligent
misidentification. In Breno v. Mentor, 8th Dist. Cuyahoga No. 81861, 2003-
Ohio-4051, ¶ 20, while recognizing a cause of action for negligent
misidentification, the court noted that the cause was not pled. And in Woods v.
Summertime Sweet Treats, Inc., 7th Dist. Mahoning No. 08-MA-169, 2009-Ohio-
6030, ¶ 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
misidentification, 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, 73 Ohio St.3d 65, 652 N.E.2d 653 (1995)
(recognizing a cause of action for wrongful discharge in violation of public policy
based on sexual harassment or discrimination); Welling v. Weinfeld, 113 Ohio
St.3d 464, 2007-Ohio-2451, 866 N.E.2d 1051 (recognizing the tort of false-light
invasion of privacy); Gallimore v. Children’s Hosp. Med. Ctr., 67 Ohio St.3d 244,
617 N.E.2d 1052 (1993) (recognizing that parents can recover damages for loss of
filial consortium); Flandermeyer v. Cooper, 85 Ohio St. 327, 98 N.E. 102 (1912)
(recognizing an action against a person who wrongfully and maliciously interferes




                                         5
                             SUPREME COURT OF OHIO




with the marital relationship).         Recognition of the tort of negligent
misidentification, however, would contravene public policy.
       {¶ 13} “ ‘ “Public policy favors the exposure of crime.” ’ ” Dailey v. First
Bank of Ohio, 10th Dist. Franklin No. 04AP-1309, 2005-Ohio-3152, ¶ 14, quoting
Miller v. Omar Baking Co., 24 Ohio Law Abs. 375, 380 (2d Dist.1937), quoting
18 Ruling Case Law 11 (1917). It encourages all citizens to report crime and to
come forward to aid law-enforcement officers during the investigation of those
crimes. Manis v. Miller, 327 So.2d 117 (Fla.App.1976). The tort of negligent
misidentification would have a chilling effect on that public policy. See Lundberg
v. Scoggins, 335 N.W.2d 235, 236 (Minn.1983); Jaindl v. Mohr, 541 Pa. 163, 167,
661 A.2d 1362 (1995), quoting Davis v. Equibank, 412 Pa.Super. 390, 392–393,
603 A.2d 637 (1992).
       {¶ 14} That is not to say that public policy prevents the right of civil
redress. “Ohio law, like the English common law before it, has long recognized a
right to recover in tort for the misuse of civil and criminal actions as a means of
causing harm.” Trussell v. Gen. Motors Corp., 53 Ohio St.3d 142, 144, 559
N.E.2d 732 (1990). Since at least 1834, this court has recognized the tort of
malicious prosecution. Anderson v. Buchanan, Wright 725 (1834). Malicious
prosecution is established when a prosecution is initiated or continued with malice
and without probable cause, the prosecution has ended in the injured party’s
favor, and in cases founded on civil proceedings, a seizure of the injured party or
his property during the prior proceedings has occurred. See Trussell at 144.
Malicious prosecution applies not only to the state, but also to an individual or
corporation. Id. Recognizing the tort of negligent misidentification, however,
would diminish the tort of malicious prosecution to a mere negligence action and
in turn would expose the victim of a crime or an eyewitness to civil liability for an
honest mistake, thereby turning victims of crime and eyewitnesses into




                                         6
                                   January Term, 2016




“guarantors of the accuracy of their identifications.” Turner v. Mellon, 41 Cal.2d
45, 49, 257 P.2d 15 (1953).
        {¶ 15} While we must balance the interests of public policy and the right
to civil relief, we also believe that a line should be drawn so that citizens who in
good faith report crimes or come forward as eyewitnesses to crimes can do so
without fear of civil liability.
        {¶ 16} Ohioans are not limited to the tort of malicious prosecution in
seeking redress for an injury caused by another’s false reporting of a crime. Since
1823, we have recognized the tort of defamation. Goodenow v. Tappan, 1 Ohio 60
(1823). Since 1863, we have recognized the tort of wrongful or false arrest or
imprisonment. William T. Spice & Son v. Steinruck, 14 Ohio St. 213, 216 (1863).
And, in 2007, this court also recognized the tort of false-light invasion of privacy.
Welling v. Weinfeld, 113 Ohio St.3d 464, 2007-Ohio-2451, 866 N.E.2d 1051,
¶ 61.
        {¶ 17} Our decision today that Ohio does not recognize the tort of
negligent misidentification is in keeping with decisions of other courts across the
United States. See Ramsden v. W. Union, 71 Cal.App.3d 873, 881, 138 Cal.Rptr.
426 (1977). See also Lundberg v. Scoggins, 335 N.W.2d 235, 236 (Minn.1983);
Campbell v. San Antonio, 43 F.3d 973, 981 (5th Cir.1995); Shelburg v. Scottsdale
Police Dept., D.Ariz. No. CV-09-1800-PHV-NVW, 2010 WL 3327690, *11
(Aug. 23, 2010); Jaindl, 541 Pa. at 167, 661 A.2d 1362. Our decision is also in
keeping with the decisions of those courts that have declined to replace the
standard of malice with the lesser standard of negligence in claims of false arrest
or imprisonment. See LaFontaine v. Family Drug Stores, Inc., 33 Conn.Supp. 66,
78, 360 A.2d 899 (C.P.1976). See also Baggett v. Natl. Bank & Trust Co., 174
Ga.App. 346, 348, 330 S.E.2d 108 (1985); Manis v. Miller, 327 So.2d 117, 118
(Fla.App.1976); see also Shires v. Cobb, 271 Or. 769, 772, 534 P.2d 188 (1975);
see also Powers v. Carvalho, 117 R.I. 519, 529, 368 A.2d 1242 (1977).




                                           7
                               SUPREME COURT OF OHIO




                                     IV. Conclusion
          {¶ 18} We conclude that there is no cause of action in Ohio for the tort of
negligent misidentification. Accordingly, we decline to answer the questions of
law certified by the United States District Court for the Southern District of Ohio,
Western Division, because they are moot.
          O’CONNOR, C.J., and O’DONNELL, LANZINGER, and FRENCH, JJ., concur.
          O’NEILL, J., dissents, with an opinion joined by PFEIFER, J.
                                 _________________
          O’NEILL, J., dissenting.
          {¶ 19} Respectfully, I must dissent.
          {¶ 20} Rather than further limiting recourse in tort for the citizens of the
state of Ohio, I would proceed to answer the questions certified to us by the
United States District Court for the Southern District of Ohio, Western Division.
The majority adopts a narrow reading of the case law on negligent
misidentification and then bolsters the correctness of its position by appealing
selectively to public policy in favor of reporting crimes, all while ignoring the
questions before us. I do not agree that this case is simple, and I will address the
case law, public policy, and procedure in turn.
          {¶ 21} In all cases alleging negligence, the fundamental guiding principle
is that “[t]he risk reasonably to be perceived defines the duty to be obeyed, and
risk imports relation; it is risk to another or to others within the range of
apprehension.” Palsgraf v. Long Island RR. Co., 248 N.Y. 339, 344, 162 N.E. 99
(1928).      So the entry-level question whether a tort such as negligent
misidentification exists is answered by considering whether there are any
reasonably foreseeable risks inherent in falsely reporting a crime. The tort of
negligence really is that simple, and it is that broad.
          {¶ 22} The majority’s understanding of the tort of negligence is too rigid.
The fact that we recognized the intentional tort of false arrest in Mouse v. Cent.




                                           8
                                January Term, 2016




Sav. & Trust Co., 120 Ohio St. 599, 167 N.E. 868 (1929), does not foreclose
pleading a cause in negligence alleging the wrongful identification of an alleged
wrongdoer by a person who should have known there was no crime. The same is
true, for example, when someone accidentally strikes another with a fist, a car, or
a bullet: the existence of the tort of battery does not foreclose pleading a cause in
negligence if the evidence might show that the conduct was unintended rather
than intended. And at the pleadings phase in a federal district court, where the
underlying matter is pending, it may be wise to plead both the intentional and the
unintentional tort because a court could decide at that phase that recovery on one
of the causes of action is unavailable given the facts that were pled. See Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929
(2007); Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
       {¶ 23} There is a glaring conclusion to draw from Mouse. The plaintiff
had pled his claim in negligence, the defendant answered alleging contributory
negligence, and this court analyzed the claim as one sounding in negligence while
ruling on the issue of whether an intervening act cuts off proximate causation.
Mouse at 600. In short, we reviewed Mouse applying traditional negligence law
dating back some 200 years. Id. Ohio courts have followed the guidance of
Mouse and have drawn an obvious conclusion from it: this court recognized a
duty to not make allegations to law enforcement if one should have reasonably
known that those allegations were untrue. E.g., Walls v. Columbus, 10 Ohio
App.3d 180, 461 N.E.2d 13 (10th Dist.1983).
       {¶ 24} Although couching its decision in terms of recognizing or declining
to recognize a cause of action, the majority opinion is mistaken as to the import of
its decision. There is already a cause of action for negligence. With the sweep of
a pen, the majority effectively negates what we previously recognized to be an
actionable legal duty not to falsely accuse the innocent.




                                         9
                                  SUPREME COURT OF OHIO




         {¶ 25} The majority’s discussion of the public policy supporting their
decision is one dimensional. I can readily agree that public policy favors the
reporting of crime. But public policy does not favor the inaccurate reporting of
crime or the vindication of a personal quarrel through embellished or inaccurate
reports of crime. Today, Ohio loses an important bulwark against these risks to
the public. If we are going to talk public policy, let’s talk about it from all
realistic perspectives. The bottom line is that in today’s electronically enhanced
climate of heightened police response, there are some things you can say on a 9-1-
1 call that will bring the cavalry out in force. The news regularly reports on those
who are injured or killed during the police response to inaccurate or false reports
of crime.1 If our police are going to be able to respond appropriately to threats in

1
  In August 2014, a 9-1-1 caller reported to police in Beavercreek, Ohio, that a man was
attempting to load a rifle and pointing it at children in a Walmart store. Wing, 911 Caller Will Not
Be Charged for Giving Cops Bad Info Before Fatal Police Shooting, The Huffington Post (Apr. 7,
2016; updated Apr. 18, 2016), available at http://www.huffingtonpost.com/entry/ronald-ritchie-
john-crawford_us_57065a21e4b0b90ac2714e86 (accessed October 19, 2016). The man, John
Crawford III, was holding a toy pellet gun that he had taken off a shelf in the store. Crawford was
shot and killed by police.
         In November 2014, a 9-1-1 caller reported to police in Cleveland, Ohio, that a person
who was “probably a juvenile” was pointing a gun around outside a recreation center and that the
gun was “probably fake.” MacDonald, Errors by police radio worker ‘significant’ factor in fatal
shooting of Tamir Rice, prosecutor says, Cleveland.com (Dec. 28, 2105), available at
http://www.cleveland.com/metro/index.ssf/2015/12/
errors_by_police_radio_workers.html (accessed October 19, 2016). The dispatcher told the
responding officers that the person was scaring people with a gun but did not report that the person
was probably a child or that the gun was probably fake. Responding officers shot and killed
Tamir Rice immediately upon arriving at the scene.
         In July 2016, a 9-1-1 caller reported to police in Avon, Ohio, that a man in traditional
Arabian garb had pledged allegiance to ISIS during a cell-phone conversation. Grinberg &
Johnson, For Muslim visitor, ugly encounter leads to apology, CNN (updated July 5, 2016),
available at http://www.cnn.com/2016/07/03/us/ohio-false-isis-report/ (accessed October 19,
2016). Police responded with guns drawn and handcuffed a citizen of the United Arab Emirates
before determining that the man had not made statements related to ISIS. The man, who had been
seeking medical treatment in the United States, collapsed during the encounter and was
hospitalized for a light stroke.
         There are also examples of property damage due to false reports of crime. See, e.g.,
Victim of fake 911 call sues Ohio police over damage to home, The Washington Post (September
7, 2016), available at https://www.washingtonpost.com/national/victim-of-fake-911-call-sues-
ohio-police-over-damage-to-home/2016/09/07/458c5ace-74fd-11e6-9781-
49e591781754_story.html (accessed October 19, 2016).




                                                10
                                January Term, 2016




the modern era, it will be because they can trust information received. The
appropriate balance of the range of public needs in this area is to enforce a duty to
accurately report crime through the civil justice system. Let the word go out
across the land that if you wrongfully accuse your neighbor of a crime, and the
neighbor is summarily placed in jail based upon your negligent act, your day in
court will arrive.
        {¶ 26} Finally, the majority modifies tort law in a case that lacks an
adequate foundation for such a sweeping holding. If this court wants to change
the law, it should do so in a case that arises in the state’s court system and comes
before us on direct appeal. Although the existence of a duty is a question of law,
the circumstances and context of a case are vital to determining whether a duty
exists. Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989).


        The existence of a duty in a negligence action is a question of law
        for the court to determine. See Railroad Co. v. Harvey (1907), 77
        Ohio St. 235, 240, 83 N.E. 66, 68.        There is no formula for
        ascertaining whether a duty exists. Duty “ * * * is the court's
        ‘expression of the sum total of those considerations of policy
        which lead the law to say that the particular plaintiff is entitled to
        protection.’ (Prosser, Law of Torts (4th ed.1971) pp. 325-326.)
        Any number of considerations may justify the imposition of duty
        in particular circumstances, including the guidance of history, our
        continually refined concepts of morals and justice, the convenience
        of the rule, and social judgment as to where the loss should fall.
        (Prosser, Palsgraf Revisited (1953), 52 Mich.L.Rev. 1, 15). * * * ”
        Weirum v. RKO General, Inc. (1975), 15 Cal.3d 40, 46, 123
        Cal.Rptr. 468, 471, 539 P.2d 36, 39.




                                         11
                             SUPREME COURT OF OHIO




       {¶ 27} We should answer the questions submitted by the federal court. I
would hold that the two-year statute of limitations for actions for bodily injury,
R.C. 2305.10(A), applies because the one-year statute of limitations in R.C.
2305.11(A) does not, by its plain terms, govern suits in negligence. I would
further hold that absolute and qualified privileges are not applicable, because
there is no public interest sufficiently important to justify placing the foreseeable
risks of inaccurate reporting of crime upon the misidentified person. Keeton,
Dobbs, Keeton & Owen, Prosser and Keeton on the Law of Torts, Section 114,
815 (5th Ed.1984) (“The defense of privilege * * * rests upon the * * * idea, that
conduct which otherwise would be actionable is to escape liability because the
defendant is acting in furtherance of some interest of social importance, which is
entitled to protection even at the expense of uncompensated harm to the plaintiff’s
reputation”).    And I believe that juries are better able to determine the
reasonableness of a person’s inaccuracies in reporting a crime than are courts.
       {¶ 28} Respectfully, I dissent.
       PFEIFER, J., concurs in the foregoing opinion.
                               _________________
       Green & Green, Jane M. Lynch, and Jared A. Wagner, for petitioner
Dylan Parfitt.
       Benjamin, Yocum & Heather, L.L.C., Timothy P. Heather, and R. David
Weber, for petitioner Michael R. Groff.
       Spangenberg, Shibley & Liber, L.L.P., Michael A. Hill, and Dennis R.
Lansdowne, for respondents Andrew Foley, Evan Foley, and Michael Fagans.
                               _________________




                                          12
