Hicks v. Allen , 2007-Ohio-693: The Eleventh District Court of Appeals reversed the trial court's grant of summary judgment, which held that sovereign immunity applied to a sheriff's deputy who kept a police dog at his home. The dog knocked down an elderly neighbor when the deputy was getting ready to leave for work. The court found that there was a genuine issue of material fact as to whether the deputy was acting outside the scope of his employment. Additionally, sovereign immunity does not apply because ORC 955.28 imposes liability upon the owner, keeper or harborer of a dog.
The political subdivision was immune under ORC 2744.03(A)(3), which creates immunity when injury results from an employee's exercise of discretion with respect to policy making, planning or enforcement powers. ORC 955.28 does not expressly impose liability upon a political subdivision.
The concurring and dissenting opinion of Judge O'Neill states that there was also a genuine issue of material facts as to whether the deputy acted recklessly. If the deputy acted recklessly, this would deprive him of an immunity defense. O'Neill disagreed with the majority's finding that the employee was engaged in a discretionary policy making function.
The concurring and dissenting opinion of Judge Grendell states that the uncontroverted evidence shows that the deputy was acting within the scope of his employment. Additionally, case law has held that ORC 955.28 does not impose liability upon political subdivisions who harbor dogs. Thus, ORC 955.28 can not impose liability on political subdivision employees either.
See Police Dog Handler can be Liable by Karen Farkas, The Plain Dealer, Mar. 7, 2007.