Wednesday, April 19, 2023
Allison Harris v. Dustin Hilderbrand, Case No. 2022-0784
Seventh District Court of Appeals (Jefferson County)
Acuity, a mutual insurance company v. Progressive Specialty Insurance Company et al., Case No. 2022-0863
Eleventh District Court of Appeals (Portage County)
State of Ohio v. Donald R. Bertram Jr., Case No. 2022-1047
Fourth District Court of Appeals (Scioto County)
Can K-9 Officer Be Sued for Injuries Caused by Police Dog at Backyard Barbeque?
Allison Harris v. Dustin Hilderbrand, Case No. 2022-0784
Seventh District Court of Appeals (Jefferson County)
ISSUES:
- Is a police officer who is required to board his K-9 dog at home immune from lawsuits alleging negligence when the dog bites a guest at the officer’s home?
- Does the requirement that a police officer board his K-9 dog at his house give the officer immunity from Ohio’s dog bite statute, which makes a keeper of a dog responsible for any injuries suffered from a dog bite?
BACKGROUND:
Dustin Hilderbrand is a K-9 handler deputy for the Belmont County Sheriff’s Department. His police dog is Xyrem. Xyrem and Hilderbrand’s three other dogs reside with the deputy at his home in Jefferson County. In August 2019, Hilderbrand and his girlfriend hosted a cookout and invited two other couples to their home. One of the guests was Allison Harris.
The cookout started around 4 p.m. and shortly after the guests arrived, Hilderbrand demonstrated some of the commands he gives to Xyrem when they are on duty. Xyrem is trained to identify narcotics and to apprehend criminals by biting them and pulling them to the ground. While consuming alcohol and socializing with the guests, Hilderbrand let Xyrem and the other dogs roam free in the backyard. He demonstrated how Xyrem can sniff out narcotics, and he placed Xyrem on an “alert” command, which placed the dog on alert for danger and the potential need for a take down.
After the demonstration, the partygoers gathered to eat dinner around 5:30 p.m. and the dogs were sent inside. After dinner, the dogs rejoined the guests in the backyard. Around 7 p.m. Harris was helping to set up a game to play in the yard when Xyrem lunged at her and bit her on her chest. Harris started to bleed and was taken for medical care. She required surgery to her breasts.
Bite Victim Sues Deputy
Harris filed a negligence lawsuit in Jefferson County Common Pleas Court against Hilderbrand. She also claimed that under the state strict liability dog bite law, anybody who owns, keeps, or harbors a dog is legally responsible for any injuries caused to another. The suit was seeking damages from Hilderbrand in his personal capacity and not as a sheriff’s deputy. Harris didn’t sue the Belmont County Sheriff’s Department.
Hilderbrand claimed that as a K-9 officer he was immune from liability for Harris’ injuries because he was required by the sheriff’s office as part of his job to keep Xyrem at his home. Since keeping the dog at home was part of his employment as a K-9 officer, he had immunity under R.C. 2744.03. The trial court gave Hilderbrand immunity under the dog bite law, but found that a jury needed to consider Harris’ claim that the officer acted negligently. The trial court found that Hilderbrand may not be immune if he was entertaining house guests by putting Xyrem under alert commands while allowing the police dog to run loose with guests in the backyard.
Both Harris and Hilderbrand appealed the decision to the Seventh District Court of Appeals. The Seventh District found that Hilderbrand wasn’t responsible for the injuries under either of Harris’ legal claims.
Harris appealed to the Supreme Court of Ohio, which agreed to hear the case at a special off-site court session in Cincinnati.
No Immunity When Using Dog for Entertainment, House Guest Asserts
Under R.C. 2744.03(A)(6)(a), a government employee is immune from lawsuits unless the “employee was acting manifestly outside the scope of the employee’s employment or official responsibilities.” She explains that the appeals court gave Hilderbrand blanket protection from any liability because his job description required him to keep Xyrem at home. She maintains, though, that the protection ended when Hilderbrand went from treating the dog like any other pet to putting him on alert through commands and entertaining guests with Xyrem.
Hilderbrand won on summary judgment in the trial court, which happens early in the case before a trial begins. When she appealed, the appeals court was supposed to assume any disputable facts in her favor, she notes. Instead, the appeals court made assumptions favoring the deputy, such as ruling that part of his job was to socialize Xyrem to interact with other people, she contends.
Harris also objects to the appeals court’s conclusion that the time span of more than 90 minutes between the police dog demonstrations and the actual bite indicated Xyrem wasn’t in alert mode when the accident occurred. Harris argues there is no evidence at this point that Xyrem wasn’t still in alert mode when the bite occurred, and that there is no proof that part of the reason Xyrem lives with Hilderbrand is to improve Xyrem’s social skills. She argues those are issues for a jury to hear and decide.
Harris argues that more information is needed before determining if Hilderbrand was negligent because his actions went well beyond the scope of his employment. She points to an analogy accepted by the trial court: If Hilderbrand had been drinking alcohol during the cookout, then passed around his loaded service revolver for guests to handle, and someone got hurt, he would definitely be found liable. She asks why that isn’t the same as placing a K-9 in alert mode and the dog hurting a house guest?
In response to the dog bite law, Harris disputes that under R.C. 2744.03(A)(6)(c), a political subdivision is immune from a strict liability law unless the law expressly states that it can apply to a government body and its employees. Hilderbrand argued that because he is as a K-9 officer employed by a government agency and part of his job duties was to keep Xyrem at his house, then he was immune from the dog bite law.
Harris argues there is no reason to treat the dog bite law differently than the negligence law. Once Hilderbrand was acting manifestly outside of his employment by using Xyrem for entertainment purposes, he had no connection with his government employer. Once that connection is broken, he should be subject to the same laws as any other dog keeper, she maintains. And like any other dog keeper, Hilderbrand should be legally responsible for the injuries caused by dog bites, she concludes.
Officer Always on Duty With Respect to Supervising Dog, Deputy Asserts
A K-9 officer and dog have a special relationship that requires the officer to bond with the dog at all times as a requirement of the job, Hilderbrand explains. That means with respect to Xyrem, Hilderbrand is always “on the clock” and all activities the officer engages in with his dog, including a backyard barbeque, are in the scope of his employment, he maintains. Because he was acting within the scope of his employment, he is immune from lawsuits involving dog bites, he argues.
To sue Hilderbrand, Harris would have to show his conduct was manifestly beyond his job duties. To prove that, she would have to show his actions were so egregious that they were in no way connected to his employment or that he acted maliciously, willfully, or wantonly, he explains. Because the allegations made against him didn’t show a complete disconnection from his duties as a K-9 officer, the lower courts correctly found he was immune from legal responsibility, he asserts.
To demonstrate his actions were severed from his employment, Harris would have to show that supervising and harboring Xyrem doesn’t further the interests of the Belmont County Sheriff’s Department in any way whatsoever, Hilderbrand explains. He notes in several cases where police dogs have bitten civilians, courts have consistently ruled the officer handling the dog was furthering or promoting the employer’s business. Xyrem accidentally bit Harris, Hilderbrand argues, but allowing the dogs to mingle with the guests was not so egregiously disconnected from his duties supervising Xyrem that he loses his immunity as a K-9 officer, he maintains.
Hilderbrand also contends he cannot be held strictly liable for the bites because he is an employee of a political subdivision. Hilderbrand notes that his job requirement as a deputy is to supervise Xyrem at all times, which means he keeps the dog because he’s an employee of a political subdivision. Because the dog bite law, R.C. 955.28(B), doesn’t state that the law applies to government employees, he is immune from lawsuits, he concludes.
Friend-of-the-Court Briefs Submitted
An amicus curiae brief supporting Hilderbrand’s position was submitted jointly by the Fraternal Order of Police of Ohio, the Buckeye Sheriff’s Association, and the Ohio Association of Chiefs of Police. The Ohio Association of Civil Trial Attorneys and the Ohio School Boards Association each filed briefs in support of the deputy.
The Ohio Association for Justice submitted a brief in support of Harris.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Allison Harris: James Bordas, jbordasiii@bordaslaw.com
Representing Dustin Hilderbrand: Matthew Mullen, mmullen@kwgd.com
Which Insurance Covers Teen Who Hit Utility Pole While Driving Someone Else’s Car?
Acuity, a mutual insurance company v. Progressive Specialty Insurance Company et al., Case No. 2022-0863
Eleventh District Court of Appeals (Portage County)
ISSUES:
- Can insurance companies define who qualifies as an insured for liability coverage?
- When a person is covered by an insurance policy and driving someone else’s car, which is covered by another insurance policy, are both policies considered in determining payment?
BACKGROUND:
Ashton Smith was driving in Streetsboro on June 4, 2020, with three passengers. He lost control of the car, went off the road, and hit a utility pole. Smith, age 16 at the time, had permission to drive the car, which was owned by Emily Willingham-Schiavoni.
The passengers in the car said they were injured in the accident, and the city made a claim for the damage to the utility pole.
The car was insured by a policy with liability coverage through Progressive Specialty Insurance Company. Liability coverage generally pays expenses for someone who is found responsible for another person’s injuries or property damage. Progressive covers drivers not listed on the policy who have permission to drive the insured vehicle, but only if the driver doesn’t have liability coverage through another insurance policy. The exception is referred to as an “escape” clause.
Smith’s father had an auto insurance policy for liability with Acuity Insurance, and the policy included Smith as a listed driver. The Acuity policy stated that for a vehicle not owned by Smith’s father, the insurance covers a loss from an accident only as “excess over any other collectible auto liability insurance.” This coverage is called an “excess” clause.
Insurance Companies Disagree Over Which Coverage Applies
In August 2020, Acuity filed a lawsuit in Portage County Common Pleas Court against Progressive. Acuity argued that Progressive’s insurance policy for the car should be primarily responsible for covering the liability claims from the accident. Progressive countered that the teen wasn’t an “insured person,” as defined in its policy, because he had liability coverage through Acuity. Each insurance company asked the trial court for summary judgment in its favor. The companies argued the case could be decided without going to trial.
The trial court determined that Progressive was correct. Acuity appealed to the Eleventh District Court of Appeals, which overturned the trial court decision. The Eleventh District ruled that Progressive’s definition of who qualifies as an insured when driving the vehicle was an escape clause, which isn’t enforceable. The appeals court stated its ruling was required by the Supreme Court of Ohio decision in State Farm Mut. Auto. Ins. Co. v. Home Indem. Ins. Co. (1970).
Progressive appealed to the Supreme Court, which accepted the case. The Court will hear arguments in the case at a special session in Cincinnati.
Driver With Own Insurance Isn’t Covered by Vehicle Owner’s Policy, Progressive Argues
Progressive explains that overlapping insurance policies have led to many legal disputes between insurance companies about which company is primarily responsible for covering a loss and how to allocate the responsibility. To minimize these disputes, Progressive stopped supplying insurance coverage to people with permission to drive a vehicle covered by Progressive but who have their own auto insurance. These individuals can look to their own auto insurance for coverage, Progressive maintains. The company notes that other insurance companies have taken the same approach.
In State Farm, the Supreme Court reviewed a similar situation – a person had possible coverage from two insurance policies. The policy insuring the vehicle had an escape clause, refusing coverage if the driver who borrowed the car was covered by another policy. The driver’s policy contained an excess clause, stating that the loss was insured only in amounts in excess of the coverage provided by the vehicle insurance policy. The Court determined that the excess clause prevails in these situations, and the escape clause is negated. The policy with the escape clause furnishes the primary coverage for the loss, the Court ruled.
Progressive contends, however, that State Farm only applies when someone qualifies as “an insured” in a policy with an escape clause. But Smith didn’t fall under the Progressive definition of “insured” because he is already covered by his father’s Acuity’s policy, Progressive argues.
Driver Has Coverage Under Vehicle Owner’s Insurance, Acuity Responds
Acuity counters that the State Farm ruling makes the escape clause in the Progressive policy unenforceable. Progressive is primarily responsible for paying coverage related to Smith’s accident because he was driving a vehicle insured by Progressive with permission, Acuity maintains.
Acuity notes that Progressive tries to avoid responsibility by excluding Smith from being “an insured” based on the definitions section of the Progressive policy. In State Farm, the escape language appeared in a section addressing “other insurance.” Acuity rejects Progressive’s argument and states that the location of the escape clause in the insurance policy doesn’t matter. The rule from State Farm applies regardless of where the language is placed, Acuity argues.
Acuity maintains that the only way Progressive can succeed in this case is if the Supreme Court overrules State Farm. Acuity notes that Ohio law mandates a minimum amount of liability coverage in auto insurance to protect the public. The public policy concerns have led courts to rule against insurance company attempts to escape providing coverage, Acuity argues. In Acuity’s view, a greater amount of liability insurance coverage – as when two insurers share responsibility for coverage – is a positive because innocent accident victims are covered more adequately.
Insurance Company Group Agrees With Progressive
The Western Reserve Group, an Ohio-based group of mutual insurance companies, filed an amicus curiae brief supporting Progressive. The group, which is involved in a similar case pending in Athens County, notes that its companies changed the definition of “insured” in their policies to exclude those with other auto liability insurance from coverage. The Ohio Department of Insurance, which reviews policy forms and rates from insurers, approved the changes in 2012, the group states. It concludes that the approval indicates the escape clauses are permitted.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Progressive Specialty Insurance Company: David Lester, dlester@cruglaw.com
Representing Acuity Insurance: Kenneth Calderone, kcalderone@hcplaw.net
Did Stealing Leaf Blower From Open Garage as Homeowner Watched Constitute Burglary?
State of Ohio v. Donald R. Bertram Jr., Case No. 2022-1047
Fourth District Court of Appeals (Scioto County)
ISSUE: To prove a burglary charge, must the state show that the offender trespassed by actively avoiding discovery or using deceptive conduct to gain entrance?
BACKGROUND:
On a September 2020 afternoon, Timothy Huff was landscaping his front yard when he heard a loud sound from a passing car. He looked up and made eye contact with the driver, Donald Bertram. As Bertram drove by, Huff went into his home to get his cellphone. The street where Huff lives is a dead end, so when Bertram reached the end, he turned around. Betram then parked on the street at the end of Huff’s driveway, behind Huff’s truck in the driveway. Huff’s garage door was open.
Bertram got out of the vehicle and started walking up the driveway. Huff testified later that he believed Bertram was approaching him. He described Bertram as being glassy eyed and having lesions all over his body. Huff said Betram’s behavior seemed off, and that he was walking with no sense of urgency and with a smile on his face.
Instead of approaching Huff, Bertram walked into Huff’s garage and picked up a leaf blower that Huff recently purchased for between $500 and $600. As Bertram was walking down the driveway with the leaf blower, Huff said he told Bertram to stop and put it down. Huff also said he was worried Bertram was going to harm him. Bertram put the leaf blower on the passenger seat of his car and drove away. Huff called the police.
Bertram was charged with burglary under R.C. 2911.12(A)(2). To prove burglary, the prosecutor must show the offender trespassed by “force, stealth, or deception” into a structure with the intent to commit a crime. At his trial, Bertram asked the judge to acquit him of the charge because the state failed to prove he entered the garage by force, stealth, or deception. The judge denied the request, and a jury convicted Bertram of burglary.
The judge sentenced Bertram to eight to 12 years in prison. Bertram appealed to the Fourth District Court of Appeals, which upheld his conviction.
Bertram appealed to the Supreme Court of Ohio, which agreed to hear his case at a special off-site court session in Cincinnati.
Key Element of Burglary Offense Not Proven, Offender Argues
Bertram explains that terms in Ohio laws are defined within the statutes, and when they aren’t, the terms have their “plain and ordinary meaning.”
Ohio criminal law defines “force” as “any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing.” He notes that Ohio courts have considered trespass by force to be as slight as turning a doorknob or pushing open an unlocked door. In his case, though, there is no allegation that he used force to walk into Huff’s open garage, Bertram notes.
“Stealth” isn’t defined in the Ohio Revised Code, but Bertram notes that Ohio courts have defined it as “any secret, sly, or clandestine act to avoid discovery and to gain entrance into or to remain within a residence of another person without permission.” Acting with stealth means to “avoid detection,” Bertram argues, noting that courts have considered an act to be trespass by stealth when someone simply ducks down after being spotted, or looks around to ensure no one is watching while looking for an unoccupied structure.
“Deception” is defined in Ohio law as “knowingly deceiving another or causing another to be deceived by false or misleading representation, by withholding information, by preventing another from acquiring information, or by an other conduct, act, or omission that creates, confirms, or perpetuates a false impression in another, including a false impression as to law, value, state of mind, or other objective or subjective fact.” Bertram notes that courts have found trespass by deception if it is shown that the offender used a ruse to gain permission to enter a home, or by taking actions that appear to others as having the permission from the owner to enter a premises.
Betram argues there was nothing stealthy about his actions. He didn’t engage in any secret, sly, or clandestine conduct, but walked up the driveway as Huff watched. He didn’t take any action that would reduce the chance of him being noticed, he asserts. His actions weren’t deceptive, he argues. The typical way to trespass by deception is by lying to the resident to gain access to the property. Bertram didn’t speak to Huff, and he didn’t lie or trick Huff as he entered the open garage.
The appeals court found that Bertram’s “demeanor” established he trespassed by stealth or deception because he didn’t give Huff the impression he was going to steal something from his garage. Bertram argues the only cases in which “demeanor” can be considered as stealth or deception is when the offender gives the impression to someone other than the property owner that the offender has the owner’s permission to enter the premises. He argues that couldn’t be the case because the owner, Huff, would know whether Bertram had permission to enter his garage, and Huff testified that he did not invite Betram onto his property.
Because he didn’t use force to enter, took no actions to avoid being seen, and didn’t use trickery to gain access, Bertram argues he didn’t commit burglary, concluding that his conviction should be overturned.
Offender Entered With Intent to Steal, Prosecutor Asserts
The Scioto County Prosecutor’s Office notes that Bertram concedes that he trespassed on Huff’s property with the intent to commit a criminal offense. The office points to the reasoning of the Fourth District, which found that Bertram’s actions were stealth and deception.
The prosecutor maintains that Betram acted with stealth or deception when he slowly passed Huff’s house, turned around, parked the car to the side of the house where the entrance to the garage was located, and approached the garage with a cavalier attitude. Huff testified he was caught off guard by Bertram’s smile and slow movement, which didn’t give him any impression that he intended to steal anything, the prosecutor notes.
The prosecutor argues Bertram’s demeanor and actions as a whole were deceptive conduct calculated to convince Huff that he wasn’t going to steal anything. All of that was sufficient to convince a jury that Betram committed burglary, and his conviction should stand, the prosecutor maintains.
The office notes the prior cases cited by the parties indicate that convictions under the Ohio burglary law are driven by specific facts and that the law cannot possibly be written to account for every factual scenario. The prosecutor maintains that Bertram’s definitions of “stealth” and “deception” are more limited than how they can be defined. The jury in this case believed it was reasonable to find that Betram’s cavalier attitude and sly behavior were deceptive conduct intended to mask his intention to steal the leaf blower, and he was properly convicted of burglary, the prosecutor concludes.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Donald R. Bertram Jr. from the Ohio Public Defender’s Office: Max Hersch, max.hersch@opd.ohio.gov
Representing the State of Ohio from the Scioto County Prosecutor’s Office: Jay Willis, jwillis@sciotocountypo.org