Reasonable minds could differ regarding whether Dep. Hilderbrand was manifestly acting outside the scope of his employment during the events leading up to Ms. Harris’s injury. Therefore, we reverse the Seventh District Court of Appeals’ judgment on the negligence claim, and we remand the matter to the trial court for further proceedings.
Harris v. Hilderbrand
2023 – Ohio – 3005
Supreme Court of Ohio
August 30, 2023
Dustin Hilderbrand, a Belmont County deputy sheriff and canine handler, hosted a cookout for friends at the home he shared with his fiancée, Kelcie Leonard, in August 2019. Dep. Hilderbrand, Allison Harris, attended the cookout, where she was bitten by Dep. Hilderbrand’s canine partner, Xyrem.
Belmont County Canine Policy
At the time of the incident, Dep. Hilderbrand had been in the K-9 unit for about eleven months. As a member of the K-9 unit, he was required to keep Canine Xyrem at his home. James Zusak, the chief deputy sheriff of the Belmont County Sheriff’s Office, testified by affidavit as follows regarding the responsibilities of deputies in the K-9 unit:
As a requirement of their position, K-9 deputies must keep and care for their dogs at their homes when they are off duty, and … supervise the conduct of the dog at all times. The purpose of the arrangement is to solidify the bond between the deputy and the dog, so that they work well together while on duty. The arrangement also allows the deputy and the dog to be on call and available as needed as a unit, and to ensure that the dog is continually supervised. Keeping their dog in their home and caring [for] and supervising the dog is one of their duties as a K-9 deputy. K-9 deputies are not permitted to work in that position if they are not willing or unable to keep and care for their dogs in their home.
Cookout Attendees
Also in attendance at the cookout were Ms. Harris’s boyfriend, Thomas Riedel, who was also a Belmont County deputy sheriff, and a third couple, Carrie and Andrew Chesonis. All of the attendees testified by deposition in this case.
Cookout Canine Demonstration
Dep. Hilderbrand and his guests were drinking alcoholic beverages at the cookout. At some point before dinner, Carrie Chesonis asked for a demonstration of Canine Xyrem’s abilities, so Dep. Hilderbrand demonstrated to the guests three things that Canine Xyrem had been trained to do. First, he had the dog sniff a small item, and then he threw it into the yard for the dog to find. Ms. Harris testified that Dep. Hilderbrand yelled at Canine Xyrem and had possibly used the dog’s shock collar to shock him when he seemed to lose interest in finding the item. Dep. Hilderbrand testified that he administered a vibration through the collar, not a shock, and that he did that only to stop Canine Xyrem from sniffing another dog. Riedel testified that Dep. Hilderbrand was randomly firing off commands to Canine Xyrem.
Utilization of Training Aids During Demonstration
Second, Dep. Hilderbrand retrieved contraband from his police vehicle— illegal drugs used for training—and hid it in his yard. Canine Xyrem found the contraband upon Dep. Hilderbrand’s command. Leonard testified that she had never seen Dep. Hilderbrand hide drugs in their yard before this incident.
Third, Dep. Hilderbrand demonstrated that Canine Xyrem has been trained to bark when Dep. Hilderbrand says a phrase including the words “Belmont County Sheriff’s Office.” He later testified that this command is often said as part of a longer warning that he has been trained to give a suspect before he gives a separate command to Canine Xyrem to bite the suspect. Dep. Hilderbrand described the full warning as, “Belmont County Sheriff’s Office. Show me your hands, come out now, or I’m going to send my dog in and you’ll get bit.” On the evening of the incident, Dep. Hilderbrand gave only the command, “Belmont County Sheriff’s Office.” Leonard testified that Canine Xyrem’s behavior always changes when he hears that command, and Carrie Chesonis testified that the command changed Canine Xyrem’s behavior that evening. According to Leonard’s testimony, upon hearing the command that day, Canine Xyrem lunged at a door to the house and started barking. She also testified that prior to the day of the cookout, Dep. Hilderbrand had never given the command with guests present and she had only seen him give the command a few times before.
Disputed Testimony over Beer for the Canine
Dep. Hilderbrand also had three other dogs, and the guests played with them, too. Riedel testified that Dep. Hilderbrand at one point poured some beer on a cement area for Canine Xyrem to lap up. Dep. Hilderbrand denied that assertion, explaining in his testimony that it was one of his other dogs he had given beer to.
Canine Shock Collar, The Bite of Ms. Harris and Andrew the Shock Collar Tester
Dep. Hilderbrand estimated that after about an hour, he removed Canine Xyrem’s shock collar and took him inside the house to eat his dinner in his kennel. After about 45 minutes to an hour, Canine Xyrem was let back outside without his shock collar.
Andrew Chesonis then asked Dep. Hilderbrand whether he could put the collar on himself to experience a shock. Andrew put the collar on his arm, and Dep. Hilderbrand administered a shock at the lowest setting. Andrew asked to be shocked again. Andrew later testified that Dep. Hilderbrand was administering the second shock when Canine Xyrem approached Ms. Harris, who was in the yard setting up a game, and bit her chest. Riedel testified that Dep. Hilderbrand later told him that his first response had been to activate the shock collar but then he had realized that the collar was not on Canine Xyrem. Dep. Hilderbrand testified that after Canine Xyrem bit Ms. Harris, he commanded Canine Xyrem to lie down, he lay down beside Canine Xyrem, holding the dog by the scruff of his neck, and Canine Xyrem made no further attempts to bite Ms. Harris.
Ms. Harris received medical care for her wound that evening and later had surgery to repair the damage. At the time of her deposition, she was scheduled to have further surgery.
Ms. Harris Sues Dep. Hilderbrand
Ms. Harris sued Dep. Hilderbrand, asserting a claim for common-law negligence and a claim under Ohio’s dog-bite statute, O.R.C. §955.28, which imposes strict liability for injuries caused by a dog in certain situations. Both Dep. Hilderbrand and Ms. Harris moved for summary judgment on both claims. The trial court granted Dep. Hilderbrand’s motion in part.
Trial Court denies Summary Judgment
The trial court acknowledged that Dep. Hilderbrand was required to keep Canine Xyrem at his home but concluded that the dog is meant to be used for police work and that Dep. Hilderbrand is not immune from liability for injuries caused by the dog when it is used for entertainment or amusement. The court analogized the situation to a police officer’s passing around the officer’s loaded service firearm at a party. The court stated that it was not finding that no immunity exists but was “simply overruling the Motion for Summary Judgment on that issue [and] leaving it for the Jury to decide.”
The trial court granted Dep. Hilderbrand’s motion for summary judgment as to the strict-liability claim. The court determined that under O.R.C. §955.28(B), strict liability is triggered by keeping or harboring a dog that bites someone. The court held that Dep. Hilderbrand was immune from liability related to the strict-liability statute because under that statute, the behavior of the keeper of the dog is not an element of the claim. Rather, the court noted, liability attaches to the person merely for harboring the dog, and since Dep. Hilderbrand’s employment required him to harbor the dog, the immunity statute operated to grant him immunity from liability for harboring the dog.
On May 9, 2022 the Seventh District Appellate Court overturned the trial court and granted immunity to Dep. Hilderband as it held “Appellant is immune as an employee of a political subdivision on both the negligence and the strict liability dog bite claim.”. Harris v. Hilderbrand, 2022 – Ohio – 155.
Ms. Harris then appealed to the Supreme Court of Ohio …
Appeal
Therefore, the inquiry in this case is whether Dep. Hilderbrand was plainly and obviously acting outside the scope of his employment prior to Canine Xyrem’s biting Ms. Harris.
“Scope of employment”
O.R.C. §2744 also does not define “scope of employment.” In Theobald v. Univ. of Cincinnati 2006-Ohio-6208, a case involving a statute that provides immunity for state employees unless the employee’s actions were manifestly outside the scope of employment, this court wrote: “For purposes of personal immunity …, a state employee acts within the scope of employment if the employee’s actions are ‘in furtherance of the interests of the state.’ Conley v. Shearer (1992), 64 Ohio St.3d 284, 287. Thus, a state employee’s duties should define the scope of employment.” This court added in Theobald that an employee’s actions are manifestly outside the scope of employment if the actions are “self-serving or have no relationship to the employer’s business.” Id. at ¶ 28.
Reasonable minds could disagree
As noted above, we must view the evidence most strongly in favor of the party against whom the motion for summary judgment was made. Viewing the evidence most strongly in favor of Ms. Harris, reasonable minds could differ as to whether Dep. Hilderbrand’s acts or omissions were obviously outside the scope of his employment during the events leading up to Canine Xyrem’s biting Ms. Harris.
Did Dep. Hilderbrand act Outside or Within His Scope of Employment?
It is undisputed that Dep. Hilderbrand’s position as a K-9 deputy sheriff for the Belmont County Sheriff’s Office required him to keep Canine Xyrem in his home. The issue here is whether Dep. Hilderbrand’s acts and omissions in handling Canine Xyrem prior to his canine partner’s biting a social guest were manifestly outside the scope of his employment.
According to at least one deposed witness, Dep. Hilderbrand was responding to the request of a guest when he decided to demonstrate what Canine Xyrem had been trained to do. Dep. Hilderbrand introduced Canine 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 Dep. Hilderbrand let Canine Xyrem or another dog drink beer that had been poured on the sidewalk.
A Break between the Canine Demonstration and the Bite
While Caine Xyrem was wearing his shock collar, Dep. Hilderbrand worked Canine Xyrem by giving him commands to find contraband and to bark and lunge at a door to the house. After the demonstration was complete, Canine Xyrem was taken inside the house and fed dinner. Approximately an hour later, Canine Xyrem, without his shock collar, was let back outside, where he had previously been responding to work commands. Riedel testified that Dep. Hilderbrand said that his first reaction when Canine Xyrem bit Ms. Harris was to activate his shock collar.
Considering the evidence in a light most favorable to Ms. Harris, we hold that reasonable minds could disagree as to whether Dep. Hilderbrand was obviously acting in a manner that did not further the interests of the Belmont County Sheriff’s Office prior to Canine Xyrem’s biting Ms. Harris.
Conclusion
Ms. Harris’s second proposition of law is not properly before us. As to the first proposition of law, whether an employee was manifestly acting outside the scope of his or her employment is ordinarily a question for a jury. “Only when reasonable minds can come to but one conclusion does the issue regarding scope of employment become a question of law.” Osborne v. Lyles, 63 Ohio St.3d 326, 330.
Within or Outside the Scope of Employment is a Question for the Jury
Reasonable minds could differ regarding whether Dep. Hilderbrand was manifestly acting outside the scope of his employment during the events leading up to Ms. Harris’s injury. Therefore, we reverse the Seventh District Court of Appeals’ judgment on the negligence claim, and we remand the matter to the trial court for further proceedings.
Information for this article was obtained from Harris v. Hilderbrand, 2023 – Ohio – 3005.
Harris v. Hilderbrand, 2023 – Ohio – 3005 was issued by the Supreme Court of Ohio and is binding throughout the State of Ohio.
Lessons Learned:
- Scope of Employment – This is a very challenging case because a canine deputy is required to care for a canine during off duty hours. The question is whether the canine demonstration meant that the deputy and canine were acting withing the scope of employment. The Supreme Court of Ohio did not specifically answer this question, rather the court held that the question is for the jury.
- Canine Off Duty Policy – Every canine handler and canine supervisors should review policies that govern off-duty conduct with the canine. Does the current policy inhibit demonstrations while off duty? If the policy is silent to this type of behavior, then it is recommended that the chain of command create a policy that provides clear direction to the handlers as to what is permitted.
- Issued Equipment Use Off Duty – During the oral arguments before the Supreme Court of Ohio, one of the lawyers compared this incident to an officer playing hot potato with his department firearm, off duty, while at a barbecue. If the firearm was discharged would this be considered within or outside the scope of employment? The question was not answered, but it raises an important issue for all officers. Do not use your department issued equipment, to include a highly trained canine for demonstration purposes while off duty.
Does your agency have a policy on off duty use of department issued equipment?
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