The Ohio Supreme Court today returned a case to federal court, ruling that the state does not recognize the tort of negligent misidentification. The case was filed by three young men who alleged they were wrongly identified as burglars and arrested after they knocked on a townhouse door on the University of Dayton’s campus.

The U.S. District Court for the Southern District of Ohio, Western Division, submitted three questions of state law to the Ohio Supreme Court about the statute of limitations for negligent misidentification claims and whether people making reports to police are protected by some level of privilege. In a 5-2 decision, Justice Sharon L. Kennedy wrote that the federal court’s questions are moot because the tort of negligent misidentification does not exist in Ohio. She added that allowing such claims would defy public policy.

Justice William M. O’Neill dissented, stating that the decision further limits the options a citizen has when an allegedly inaccurate wrongdoing is reported to police and results in harm.

Men File Suit After Arrests
Evan Foley, Andrew Foley, and Michael Fagans said they knocked on a campus townhouse door in March 2013, and the occupant, Michael Groff, became angry and called the police. Police then arrested the trio for burglary.

About a week later, the criminal charges against Fagans and Andrew Foley were dismissed, and the charge against Evan Foley was resolved.

In March 2015, the Foleys and Fagans filed a lawsuit in federal court, alleging negligence against Groff and his roommate, Dylan Parfitt, for the report made to police that accused them of a crime. The federal court stated that Ohio law is unclear on some of the issues and submitted questions to the Supreme Court for resolution.

Court Rejects Negligent Misidentification Claims
Although the Sixth District Court of Appeals ruled in 1995 that Ohio has a separate cause of action for those who are negligently identified as committing a crime and who are harmed as a result, the Supreme Court today disagreed.

“[T]his [C]ourt has never recognized the tort of negligent misidentification, and we decline to do so today,” Justice Kennedy wrote.

The Foleys and Fagans relied on a 1929 Ohio Supreme Court decision, which they believed recognized the tort of negligent misidentification. However, Justice Kennedy explained this decision was about false arrest and proximate cause. It did not establish the tort of negligent misidentification.

Noting that the Court has sometimes recognized a new civil remedy for important public policy reasons, she reasoned that recognizing a tort for negligent misidentification would instead conflict with public policy. She explained that public policy encourages people to report crimes and to help police.

“The tort of negligent misidentification would have a chilling effect on that public policy,” she noted.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Judith Ann Lanzinger, and Judith L. French joined Justice Kennedy’s opinion.

Dissent Says Court’s Reading Too Narrow
Justice O’Neill maintained that the majority has too rigidly interpreted the case law on negligent misidentification.

“[T]he 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,” he wrote. “The tort of negligence really is that simple, and it is that broad.”

“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,” he added.

Justice Paul E. Pfeifer joined the dissent.

2015-2032. Foley v. Univ. of Dayton, Slip Opinion No. 2016-Ohio-7591.

View oral argument video of this case.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

PDF files may be viewed, printed, and searched using the free Acrobat^® Reader
Acrobat Reader is a trademark of Adobe Systems Incorporated.