COLUMBUS, Ohio (Legal Newsline) - An Ohio police officer who demonstrated to guests at a party how his K-9 unit dog responded to commands – including finding illegal contraband buried in the back yard – might be liable after the dog bit one guest in the chest, the Ohio Supreme Court ruled.
Testimony in the case suggested Belmont County Deputy Sheriff Dustin Hilderbrand fed his police dog, named Xyrem, beer and was testing the shock collar on another guest when Xyrem attacked plaintiff Allison Harris, the court said in an Aug. 30 decision. The high court reversed an appellate decision granting Hilderbrand immunity under a statute protecting government employees.
“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,” the Ohio Supreme Court ruled.
As a K-9 unit officer, Hildebrand was required to keep Xyrem at home under a policy designed to solidify the bond between dog and officer, the court observed. Hildebrand hosted a cookout for friends in August 2019. All the guests were drinking and at some point one of them asked Hilderbrand to demonstrate Xyrem’s abilities.
Hilderbrand had the dog sniff an item that he threw into the yard and then retrieved some illegal drugs from his car that are used to train the dog, burying them in the yard for the dog to find.
Finally, Hilderbrand demonstrated how Xyrem responds to the verbal command “Belmont County Sheriff’s Office,” which is usually followed by “come out now, or I’m going to send my dog in and you’ll get bit.” The dog’s behavior changed and he began barking at a door, witnesses said. At some point a guest testified Hilderbrand poured beer on the patio for Xyrem to drink, but the officer said one of his other dogs drank the beer.
Hilderbrand put Xyrem away for about 45 minutes and meanwhile a guest asked to test what the shock collar felt like. While he was shocking the guest, Xyrem came out again and bit Harris, causing injuries
The trial court ruled that although Hilderbrand was required to keep the dog at home, he wasn’t immune from injuries caused by the dog “when it is used for entertainment or amusement.” The court compared it to a police officer passing around a loaded service revolver at a party.
Hilderbrand appealed, and the appeals court ruled that the case should be dismissed because keeping the dog at home meant acclimating it to people in different situations.
“To hold otherwise would essentially mean Hilderbrand is not permitted to have house guests or must lock up the canine every time he has a guest,” the court ruled. Unless he received immunity, officers would be discouraged from joining the K-9 squad, the court concluded.
The Ohio Supreme Court reversed again, saying a jury had to decide whether Hilderbrand’s behavior fell under the governmental immunity statute.
“Considering the evidence in a 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’s biting Harris,” the court concluded.
Harris was represented by Bordas & Bordas, while Hilderbrand was represented by Krugliak, Wilkins, Griffiths & Dougherty. The Ohio Association of Justice supported the plaintiff, while the Ohio School Boards Association, the Buckeye State Sheriff’s Association and the Ohio Association of Civil Trial Attorneys submitted briefs in favor of Hildebrand.