Login | April 25, 2024
7th District court reverses sheriff’s K-9 dog bite case
TRACEY BLAIR
Legal News Reporter
Published: June 24, 2022
A Belmont County sheriff’s deputy hosted a cookout at his Jefferson County home in August 2019.
During the cookout, the deputy – a K-9 handler – began demonstrating some of the dog’s police training. The dog, named Xyrem, became agitated and bit one of the guests, and the woman needed medical attention for her physical and emotional injuries.
The victim, Allison Harris, sued Deputy Dustin Hilderbrand in January 2020 for strict liability on the dog bite claim as well as negligence. Hilderbrand argued he is immune as an employee of a political subdivision on both claims.
The deputy appealed a Jefferson County trial court’s decision denying his motion for summary judgment on the negligence claim.
Harris then filed a cross appeal, arguing the trial court erred by granting summary judgment to the deputy on her strict liability dog bite claim. The basis for granting summary judgment to Hildebrand on this claim was the doctrine of sovereign immunity.
The 7th District Court of Appeals recently reversed the trial court’s decision in favor of Hilderbrand.
Court records show that on Aug. 10, 2019, Hilderbrand and his girlfriend, Kelcie Leonard, hosted a cookout at their home. Two other couples attended the cookout – Carrie and Andrew Chesonis and Harris and her boyfriend, Belmont County Deputy Thomas Riedel.
Prior to dinner, Hilderbrand demonstrated some of Xyrem’s police training, which included finding contraband. The deputy used narcotics from his cruiser for Xyrem to find.
Harris testified that Xyrem became very aggressive after receiving an alert command. Xyrem and Hilderbrand’s other dogs were put inside to eat with no incident. Later on, the dogs were returned to the back yard for a frisbee game when Xyrem jumped up and bit her left breast.
In her motion in opposition to summary judgment, Harris alleged Hilderbrand’s actions at the cookout were not in the scope and course of his duties and the strict liability statute for dog bites applied.
The deputy argued because he is the dog’s trainer, he is required to keep Xyrem at his home and therefore immune from liability.
“This court disagrees,” the trial court stated in its decision. “While defendant is required to keep Xyrem in his home, he is not required to entertain house guests, nor to arm the bomb in the presence of house guests. It would be akin to passing around his loaded service weapon cocked and with the safety off at a party and then claiming immunity for an accidental discharge. Both Xyrem and the service weapon are for police work and neither generate immunity when used for entertainment or amusement.
“… If defendant was performing his duties with Xyrem and injuries result, he would be immune even from negligence. For example, if Xyrem escaped confinement, broke his chain or slipped his collar and caused injury, defendant would be immune even if his negligence allowed the escape because defendant was required to keep the dog. There is no evidence that any part of defendant’s job includes entertaining house guests with ‘alert’ commands. In those situations, he is just a man with a dog like any other.”
On appeal, the deputy argued it was a jury issue as to whether he is entitled to immunity protection.
The appellate court agreed, finding Hildebrand was not manifestly acting outside the scope of official responsibilities at the time the bite occurred.
“The demonstration was at the request of the guests, and no act during that demonstration was improper; the attack or bite command was not demonstrated,” 7th District Judge Carol Ann Robb said in a 2-1 opinion. “Appellant acted prudently in removing the dogs during dinner and their feeding time. There was a span of time, around one hour, from the time of the demonstration to when the bite occurred. The testimony indicated the bite was unprovoked, and there was no notice it was about to occur; the bite was spontaneous.”
The appellate court also found Harris’ cross appeal claim to be meritless.
Appellate Judge Cheryl L. Waite concurred, while 7th District Judge David D’Apolito dissented.
“I respectfully dissent with the majority’s opinion of reversal and holding that appellant is entitled to sovereign immunity as a matter of law on appellee’s negligence claim in this case,” Judge D’Apolito said in his dissenting opinion.
Judge D’Apolito noted there were two prior incidents with the same dog.
“Regarding the statute at issue, R.C. 2744.03(A)(6)(a), I believe there is a genuine issue of material fact as to whether appellant was acting manifestly outside his scope of employment,” he wrote.”This is consistent with Hicks v. Allen, 11th Dist. Ashtabula No. 2005-A-0002, 2007-Ohio-693, wherein the appellate court decided that the issue of whether an employee was within the scope of employment is generally a question of fact for the jury to decide. Accordingly, because I believe this matter involves a question of fact, I would affirm the judgment of the trial court.”
The case is cited Harris v. Hilderbrand, 2022-Ohio-1555.