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Court News Ohio
Court News Ohio

Jury Should Decide if K-9 Officer Liable for Dog’s Bite at Backyard Barbecue

Image of a German Shepherd dog.

Supreme Court rules that a jury must decide if a K-9 officer can be held responsible for injuries suffered when his police dog bit a house guest.

Image of a German Shepherd dog.

Supreme Court rules that a jury must decide if a K-9 officer can be held responsible for injuries suffered when his police dog bit a house guest.

An off-duty K-9 officer hosted a cookout at his home. About an hour after demonstrating his canine partner’s skills, the dog bit a guest. The Supreme Court of Ohio ruled today that a jury should decide whether the officer can be held financially responsible for the guest’s injuries.

An Ohio statute, R.C. 2744.03(A)(B)(3), makes government employees immune from liability for injuries caused by their on-the-job acts or omissions unless “[t]he employee’s acts or omissions were manifestly outside the scope of the employee’s employment or official responsibilities.” In a unanimous opinion, the Supreme Court reversed a Seventh District Court of Appeals decision that found Belmont County Sheriff Deputy Dustin Hilderbrand was immune from liability because he was not “manifestly acting outside the scope of his employment or official duties” during the events leading up to the bite by Xyrem, his canine partner.

Writing for the Court, Chief Justice Sharon L. Kennedy explained that the Seventh District granted Hilderbrand summary judgment, meaning the victim’s case was dismissed before a trial court jury could consider the matter. After examining the statements of cookout attendees and the state law regarding immunity for government employees, the Court remanded the case to the trial court for further proceedings to determine whether immunity is justified.

“Based on the facts of this case, reasonable minds could disagree regarding whether the officer was acting outside the scope of his employment,” she wrote.

The decision affirmed the ruling of a Jefferson County Common Pleas Court, which had ruled that based on the preliminary information submitted to the court, Hilderbrand was not automatically entitled to immunity under the statute and that the question should be decided by a jury.

Dog’s Skills Demonstrated at Cookout
Hilderbrand had been a K-9 handler for about 11 months when the incident happened. A Belmont County chief deputy told the trial court that as a requirement of the position, K-9 deputies must keep and care for K-9 dogs in their homes and supervise their conduct at all times. The chief deputy stated that the arrangement also allows the deputy and the dog to be on call and available as needed as a unit.

Allison Harris attended the backyard barbecue in August of 2019 at Hilderbrand’s home in Jefferson County. After Xyrem bit her, she filed a negligence lawsuit against Hilderbrand. All six of the cookout attendees provided depositions as part of the lawsuit.

Hilderbrand shared his home with his fiancée, Kelsie Leonard, and three other dogs plus Xyrem. Harris attended the cookout with her boyfriend, Thomas Riedel, who was also a Belmont County deputy sheriff. A third couple, Carrie and Andrew Chesonis, were there.

Hilderbrand and his guests were drinking alcohol during the cookout. Before they began eating, Carrie asked Hilderbrand if he could demonstrate some of Xyrem’s abilities. Hilderbrand had Xyrem, who was wearing a shock collar, find some items in the yard. Harris said that when the dog began to lose interest, Hilderbrand sent a shock through the collar. In his deposition, Hilderbrand said that he administered a vibration through the collar only to keep Xyrem from sniffing another dog. Then Hilderbrand hid some illegal drugs used for training purposes in the yard and had Xyrem search for them. Hilderbrand’s fiancée said that was the first time she had seen Hilderbrand hide drugs in their yard.

The officer also demonstrated that Xyrem was trained to bark when he said a phrase that included “Belmont County Sheriff’s Office.” Hilderbrand said it was part of an extended warning he had been trained to give to alert the suspect that the dog could be sent toward the suspect and “you’ll get bit.”

Hilderbrand’s fiancée and Carrie both testified that Xyrem’s behavior changed after the command.

The fellow deputy, Reidel, testified that at one point, Hilderbrand poured some beer on a cement area for Xyrem to lap up. Hilderbrand denied it and explained that he poured the beer for one of his other dogs. After the skills demonstration, Hilderbrand took Xyrem’s shock collar off, and the dogs were sent into the house while the guests ate dinner outside.

Dog Bites Guest
After dinner, the dogs, including Xyrem without his shock collar, were let back in the yard. Andrew Chesonis asked if he could put on the shock collar to experience the shock. He put it around his arm, and Hilderbrand administered a shock at the lowest setting. As Andrew asked for a second shock, he testified he saw Xyrem approach Harris, who was setting up a game in the yard. Xyrem bit Harris on the chest.

Reidel testified that Hilderbrand later told him his first reaction was to activate the shock collar but he realized it was not on Xyrem. Harris was treated that evening for her wound and later had surgery. At the time of her deposition, she was scheduled for further surgery.

Officer Sought to Dismiss Lawsuit
Hilderbrand requested summary judgment from the common pleas court, claiming he was immune from any liability because he acted within the scope of his employment when the incident happened. The trial judge disagreed, noting that while Hilderbrand was required to keep Xyrem at his home, the purpose of it was for police work. Hilderbrand was not immune when the injuries were caused by using the dog for “entertainment or amusement.” The judge compared the situation to a police officer passing around the officer’s loaded firearm at a party and indicated that an officer doing that would not have immunity. The trial court stated that its ruling was only to deny summary judgment and that it was leaving the immunity issue for a jury to decide.

Hilderbrand appealed the decision to the Seventh District, which reversed the trial court’s decision and directed that the case be dismissed because Hilderbrand was immune from liability. Harris appealed to the Supreme Court, which agreed to hear the case.

Supreme Court Analyzed Immunity Law
R.C. 2744.03(A)(6)(a) states that political subdivision employees are immune from liability for injuries caused by their acts or failure to act unless “the employee’s acts or omissions were manifestly outside the scope of the employee’s employment or official responsibilities.”

Chief Justice Kennedy explained that an essential issue in this case is determining whether Hilderbrand’s acts or omissions leading up to the dog biting his guest were manifestly outside the scope of his employment or official responsibilities. She noted that the statute does not define “manifestly” or the term “scope of employment.”

The Court turned to Webster’s Third New International Dictionary, which defines “manifestly” as “plainly” or “obviously.” The opinion stated that it looked to prior cases where public employees claimed immunity to define “scope of employment.” In its 1992 Conley v. Shearer decision, the Court found a state employee acts within the scope of employment if the employee’s actions are “in furtherance of the interests of the state.” In its 2006 Theobold v. Univ. of Cincinnati decision, the Court ruled that an employee’s actions are manifestly outside the scope of employment if they are “self-serving or have no relationship to the employer’s business.”

The opinion explained that since the case was decided on summary judgment, the Supreme Court must view the evidence most strongly in favor of Harris. That evidence included that Xyrem was introduced to guests while Hilderbrand and the others were drinking alcohol, that Hilderbrand demonstrated Xyrem’s work responsibilities at a social event, and that Hilderbrand may have allowed Xyrem to lap up some beer.

“Considering the evidence in the light most favorable to Harris, we hold that reasonable minds could disagree as to whether Hilderbrand was obviously acting in a manner that did not further the interests of the Belmont County Sheriff’s Office prior to Xyrem biting Harris,” the Court concluded.

2022-0784. Harris v. Hilderbrand, Slip Opinion No. 2023-Ohio-3005.

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