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COLUMBUS -- The Ohio Supreme Court recently ruled that a Belmont County police officer was not immune to negligence allegations, a decision stemming from a Belmont County K-9 officer biting a guest at a party.
The case was argued before the Ohio Supreme Court in April. On Wednesday, Chief Justice Sharon L. Kennedy wrote the unanimous opinion of the Court which was joined by the six other justices, reversing the Seventh District Court of Appeals' judgment on a negligence claim against K-9 handler Dustin Hilderbrand of the Belmont County Sheriff's Office.
The case will be remanded to the trial court in Jefferson County for further proceedings.
The argument centered around whether a K-9 handler can be granted immunity if the dog bites a social guest at the officer's home. In August 2019, Hilderbrand hosted a barbecue and his K-9, Xyrem, bit one of the guests, Allison Harris. According to testimony before the court, the woman required surgery after the bite.
The case touched on the extent of a public servant's immunity and what constitutes "off duty."
Attorney Jamie Bordas, managing partner of Wheeling-based Bordas & Bordas, argued on Harris' behalf, saying that the dog's shock collar, which is used for training purposes, was removed during the evening, and when the K-9 attacked Harris, the shock collar was not on, leading to serious injuries that required medical attention and surgeries to repair the damage.
Jefferson County trial court Judge Joseph J. Bruzzese, Jr. acknowledged that keeping the K-9 at Hilderbrand's home was required but also said that the dog was meant to be used for officer work, not entertainment and that Hilderbrand is not immune from liabilities caused by the K-9 when used for amusement.
Hilderbrand appealed the trial court's judgment on the negligence claim and the court of appeals determined that, "(a)lthough this was an unfortunate situation, reasonable minds can find only one conclusion, i.e., [Hilderbrand] is entitled to immunity as a matter of law because there is nothing tending to show that he was acting manifestly outside the scope of his official responsibilities at the time of the incident."
Harris appealed that decision, resulting in the Supreme Court's reversal of the Seventh District's judgment.
"It is undisputed that Hilderbrand's position as a K-9 deputy sheriff for the Belmont County Sheriff's Office required him to keep Xyrem in his home. The issue here is whether Hilderbrand's acts and omissions in handling Xyrem prior to his canine partner's biting a social guest were manifestly outside the scope of his employment," Kennedy wrote Wednesday.
"According to at least one deposed witness, Hilderbrand was responding to the request of a guest when he decided to demonstrate what Xyrem had been trained to do. Hilderbrand introduced Xyrem into a situation in which multiple people were consuming alcohol, including himself, the K-9 handler.
There is a factual dispute as to whether Hilderbrand let Xyrem or another dog drink beer that had been poured on the sidewalk."
She went on to note Xyrem was wearing his shock collar during the demonstration but was then let back outside without his shock collar, at a site where he had previously been issued work commands.
"Hilderbrand said that his first reaction when Xyrem bit Harris was to activate his shock collar," Kennedy wrote.
"Whether an employee was manifestly acting outside the scope of his or her employment is ordinarily a question for a jury." Kennedy wrote, citing another case. "Reasonable minds could differ regarding whether Hilderbrand was manifestly acting outside the scope of his employment during the events leading up to Harris's injury. Therefore, we reverse the Seventh District Court of Appeals' judgment on the negligence claim."
In a statement, Bordas applauded the Ohio Supreme Court's decision.
"We are pleased that the Ohio Supreme Court unanimously held that a police officer does not have immunity as a matter of law for his negligent acts in keeping and harboring a K-9 dog," Bordas said.
"The officer in this case was off duty, drinking alcohol at a party at his home, and using the dog in an inappropriate manner to do tricks for his guests by having him search for drug paraphernalia in his yard and giving him police commands. There is even testimony that he gave the dog alcohol to drink.
"If any individual, including a police officer, engages in negligent acts that harm another person, like Ms. Harris here, they should be held responsible and their insurance company should pay damages for those acts," he continued. "Ms. Harris has had significant injuries and surgeries as a result of this dog attack, and she should be compensated for these things."
During the hearing, Bordas had argued that Hilderbrand had turned the yard into a "crime scene" and that the K-9 was trained both to locate drugs and the incapacitate suspects.
The Ohio Fraternal Order of Police, Buckeye State Sheriff's Association Inc., and the Ohio Association of Chiefs of Police had supported Hilderbrand, stating that the injuries occurred within the confines of his employment and reversing the court of appeals' decision in Hildebrand's favor would "eliminate K-9 programs as they currently exist in Ohio."
The Belmont County Sheriff's Office did not respond to requests for comment.