Supreme Court of Ohio: Ohio Does Not Recognize the Tort of “Negligent Misidentification”

November 4, 2016
I thought I knew of every possible common law tort, but apparently not. Today the Supreme Court of Ohio released an opinion holding that there is no recognized cause of action in Ohio for “negligent misidentification.” 
The case is Foley v. Univ. of Dayton, Slip Opinion No. 2016-Ohio-7591. The basic facts were as follows:
{¶ 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 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.  


So, essentially, while we are not provided with much information about the underlying Federal Court lawsuit by the guys who were arrested against the occupants of the house (who called the police on them), that lawsuit hinged on the statute of limitations for negligent misdentification because the other claim the Plaintiffs (the respondents here) could have brought – defamation – was time-barred by the statute of limitations. The Federal Court “certified” this question to the Supreme Court of Ohio for an answer, but the Justices’ answer (with one dissent) was that there is no such tort in Ohio to begin with.

So what is negligent misrepresentation? “[A] tort cause of action,
separate from defamation…for persons who
are negligently improperly identified [not intentionally – negligence is enough] as being responsible for
committing a violation of the law, and who suffers injury as a result
of the wrongful identification.” I am not positive what the need would be for this cause of action (other than a longer statute of limitations). Perhaps some “misidentifications” would not technically qualify as defamation? Or perhaps the degree of negligence required would be lower than that required for defamation or malicious prosecution? In any event, the Supreme Court of Ohio, for public policy reasons, decided not to recognize the tort:

“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.”
The Court also recognized that most other states do not recognize this tort either.
A shout-out to the law firm of Benjamin, Yocum & Heather, L.L.C., and prominent attorneys Timothy P. Heather and R. David
Weber, who successfully represented one of the occupants of the house.

Update: The Springfield News-Sun reported on this case, providing some background.



About the author: Alex J. Durst is a Cincinnati employment attorney, consumer protection attorney and divorce attorney with Croskery Law offices. He is licensed to practice in Ohio state courts and the United States District Court for the Southern District of Ohio, as well as other state and federal courts by permission on a case-by-case basis (most recently, Kentucky, the United States District Court for the Southern District of Indiana, Massachusetts and Florida). To contact Alex, call (513) 338-1947.

Contact The Durst Law Firm Today.

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