Williams v. Tharp

Citations: 914 N.E.2d 756; 2009 Ind. LEXIS 1367; 2009 WL 3273219Docket: 29S02-0901-CV-40

Court: Indiana Supreme Court; October 13, 2009; Indiana; State Supreme Court

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The Indiana Supreme Court addressed an appeal regarding the trial court's summary judgment that deemed a restaurant employee's statements about a customer allegedly pulling a gun as privileged. Plaintiffs Thomas Williams and Sanford Kelsey, who were wrongfully suspected of carrying a weapon, sued Papa John’s U.S.A. Inc. and its employee Kelly Tharp for various torts, including defamation and false imprisonment, seeking damages. The Court of Appeals had previously reversed and remanded for trial, but the Supreme Court affirmed the trial court's ruling.

On February 19, 2005, Kelsey, wearing a tan coat and a fanny pack, and Williams visited a Papa John's restaurant to pick up an order. Tharp, a delivery driver who did not know the plaintiffs, reported to a passerby and police that he believed Kelsey had pulled a gun. Tharp described seeing Kelsey reach into his fanny pack, which he interpreted as retrieving a firearm. Following this, the passerby reported the incident to the police, prompting Officer Jeff Frolick to respond. Tharp misidentified himself to the officer and provided a detailed, albeit inaccurate, description of the alleged weapon and the plaintiffs. The situation escalated despite the absence of a firearm and led to the legal claims against the restaurant and Tharp.

Tharp did not accuse either plaintiff of robbery, threats, or gun-related actions. Officer Frolick instructed Tharp to wait by the police car while he spoke with other employees, none of whom reported a robbery or threats. Frolick doubted Tharp's claim about his visibility of a customer’s waist due to Tharp's shorter stature. After Frolick returned from his inquiries, Tharp had left, explaining in his deposition that he fled due to outstanding warrants and a desire to avoid police interaction. 

Following the incident, police confronted the plaintiffs, Williams and Kelsey, at gunpoint, detaining them for over an hour under the pretext of investigating reports of a man brandishing a gun, without any indication of a robbery. No weapon was found, and the men were released. Tharp had a troubled employment history with Papa John's, including a prior firing and convictions unrelated to his employment, and he used false identities during his employment. After the incident, he was terminated and later returned money to the company, claiming he believed the plaintiffs were attempting to rob the store.

The plaintiffs sued Papa John's and Tharp for defamation per se, false imprisonment, intentional infliction of emotional distress, and negligence, with Papa John's alleged liable under respondeat superior and for negligent hiring. Both defendants sought summary judgment, which the trial court granted based on a qualified privilege for Tharp’s statements, dismissing all claims. The court also ruled on evidence motions, striking certain items but maintaining others. The Court of Appeals reversed and remanded all counts, leading to a transfer of the case.

A grant of summary judgment is subject to de novo review, with all reasonable inferences drawn in favor of non-moving parties like Williams and Kelsey. Summary judgment is warranted if the evidence indicates no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, as defined by Indiana Trial Rule 56(C). A material fact is one that would influence the case's outcome, while a genuine issue arises when a trier of fact must resolve conflicting accounts of the truth or when undisputed facts allow for reasonable conflicting inferences. If defendants Tharp and Papa John's can show no genuine issue of fact on a critical issue, they are entitled to summary judgment unless the plaintiffs can produce contrary evidence showing a triable issue. The trial court's judgment carries a presumption of validity, placing the burden on the challenging party to demonstrate error in the trial court's conclusion.

Plaintiffs argue the trial court wrongly granted summary judgment based on several points: 1) Evidence suggests a genuine issue of material fact regarding Tharp's abuse of qualified privilege, impacting their claims of defamation and other torts; 2) The trial court erred in excluding in-car video and Officer Frolick's observations, which could illustrate a genuine issue of material fact; and 3) The complaint sufficiently alleges defamation.

Regarding the qualified privilege defense in defamation claims, the trial court found that Tharp's statements were protected, a conclusion upheld in this context. Qualified privilege applies to good faith communications concerning matters of interest or duty, and serves to rebut the presumption of malice in defamation. The defendant must first demonstrate the existence of a privileged occasion justifying the statements, after which the burden shifts to the plaintiff to prove abuse of that privilege, defined as exceeding the scope of its intended purpose.

The excerpt outlines the legal framework surrounding the privilege of reporting suspected criminal activity in Indiana. It establishes that the determination of privilege abuse rests with the jury unless only one conclusion is evident from the evidence, citing Kelley v. Tanoos. The public interest is emphasized as crucial for encouraging citizens to report crimes, thereby enhancing public safety and facilitating law enforcement investigations. Various law enforcement agencies, such as the Indianapolis Metropolitan Police Department and the Indiana Department of Homeland Security, actively promote citizen reporting of suspicious behavior, reinforcing the idea that vigilance contributes to community safety.

However, the excerpt acknowledges the potential for false accusations made by reporting citizens, which can harm reputations—a central concern of defamation law. To balance these interests, Indiana law recognizes a qualified privilege for communications to law enforcement regarding criminal activity, which protects citizens from civil liability unless there is evidence of ill will, excessive publication, or lack of belief in the truth of the statement. While some jurisdictions assert absolute privilege for complaints made to law enforcement as part of judicial proceedings, the excerpt notes that Indiana courts typically apply a qualified privilege. The right to remedy for reputational injury is also highlighted in the Indiana Constitution, indicating the state's commitment to protecting individual reputations alongside public safety interests.

Citizens reporting suspected criminal activity to law enforcement are granted a qualified privilege, which can expose them to retaliatory civil lawsuits for malicious or unfounded claims. In this case, the plaintiffs acknowledge that Tharp's statements fell under this privilege but argue that there is sufficient evidence to suggest an abuse of that privilege. They do not claim that Tharp acted out of ill will or excessively communicated the accusations, but rather that he made statements without belief or grounds for belief in their truth. 

This raises two critical questions: the definition of making a statement 'without belief or grounds for belief in its truth' and whether the evidence presented allows a reasonable jury to determine that Tharp acted in such a manner. The plaintiffs assert that Tharp either lied or lacked a reasonable basis for his claims, suggesting evidence of deliberate falsehood or recklessness. Conversely, Papa John's argues against a recklessness standard based on prior court decisions, asserting that more than recklessness is required to demonstrate abuse of privilege. 

The trial court applied a recklessness standard but concluded that Tharp did not exhibit reckless disregard for the truth given the detailed information he provided. The Court of Appeals recognized a genuine factual issue regarding Tharp's state of mind but noted the inconsistent application of standards in previous cases. While earlier opinions referenced the 'made without belief or grounds for belief' standard, they ultimately found insufficient evidence of reckless disregard. The case of Bals is pivotal, having shifted the interpretation away from the Restatement (Second) of Torts' standard toward a broader interpretation of qualified privilege, suggesting that knowledge of falsity is requisite for abuse of privilege, a notion supported by subsequent rulings.

The court has recognized a "reckless disregard for the truth" standard in defamation cases involving statements made to law enforcement. In prior cases, such as *May v. Frauhiger*, it has been established that making statements without belief or grounds for belief can equate to reckless disregard. However, in determining the scope of qualified privilege for communications to law enforcement, the court supports a broader latitude as outlined in *Bals*. A recklessness standard is inappropriate because it could deter citizens from reporting suspected criminal activity due to fear of liability, even if the reports are merely speculative or unverified. The qualified privilege defense protects citizens from liability for false reports unless they abuse the privilege by exceeding its intended purpose. The court emphasizes the importance of encouraging citizens to report crimes without the necessity of verifying their suspicions beforehand, as this fosters open communication with law enforcement and helps prevent vigilantism or personal safety risks. While deliberate lies are not protected, a mere failure to verify information does not constitute recklessness sufficient to strip away the privilege. The overall aim is to enhance citizen engagement with law enforcement while allowing trained professionals to investigate the information reported.

The absence of a discernible basis for the truth of a statement can serve as circumstantial evidence of a reporting citizen's knowledge of its falsity, as recognized in Bals. The core issue is whether the evidence presented creates a genuine factual dispute over Tharp's knowledge of falsity when making his statements. The plaintiffs argue this is a critical factual issue, typically for a jury to decide, but the court finds insufficient evidence to establish that Tharp knowingly made false statements. The facts are compared to the Holcomb case, where a gas station employee's erroneous report was protected by a qualified privilege, despite being mistaken. The court upheld the summary judgment in favor of the defendants, clarifying that evidence of incorrect identification alone does not negate the privilege, as it would undermine the purpose of protecting truthful reporting. The plaintiffs cite several pieces of evidence to support their claim against Tharp, including testimony about visibility, lack of corroboration from other employees, Tharp's misconduct, and inconsistencies in his descriptions. However, the court concludes that the reported mistakes do not invalidate the privilege, emphasizing that the nature of qualified privilege inherently involves some level of mistaken reporting, and liability for defamation does not arise from true statements.

The issue centers on whether Tharp's belief that Kelsey had a gun was genuinely held or fabricated. Evidence presented by the plaintiffs, which includes disagreements from other individuals and Tharp's inconsistent descriptions of the gun, fails to demonstrate that Tharp lacked belief in his statement. The plaintiffs argue that Tharp's actions—reporting the gun to both a passerby and a coworker—contradict his claimed belief that a robbery was imminent. However, Tharp consistently reported seeing Kelsey pull out a gun and did not accuse the plaintiffs of robbery or threats. Minor discrepancies in his descriptions do not indicate a deliberate lie but rather reflect imperfect recollection. Tharp's beliefs align with the items Kelsey possessed, supporting that he had grounds for his belief. The plaintiffs' attempt to use Tharp's criminal record to infer dishonesty is deemed improper propensity evidence. Overall, the evidence does not substantiate a claim that Tharp knowingly made false statements.

Tharp falsely identified himself as 'Arthur' and fled the scene due to outstanding warrants, not because he fabricated his account of Kelsey. His flight is circumstantial evidence of guilt regarding his warrants, not deception about Kelsey possessing a weapon. It is significant that Tharp cooperated with authorities, risking arrest. Officer Frolick's observation that Tharp could not have seen Kelsey’s actions from his position supports a slight inference that Tharp's account was fabricated. However, it is undisputed that Kelsey wore a fanny pack containing a wallet, which aligns with Tharp's description of an object he claimed was a gun. Tharp also accurately described Kelsey's appearance and vehicle. The court determined that the coincidences in Tharp's account do not imply he lied, and thus, no genuine issue of material fact exists. The court established a qualified privilege that protects the defendants from defamation claims, which also extends to claims of false arrest, emotional distress, negligence, and punitive damages, as the privilege applies here. Consequently, the plaintiffs' claim against Papa John's for negligent hiring fails due to the absence of an underlying tort. The defendants were entitled to summary judgment on all liability theories based on the established qualified privilege.

The tort of intentional infliction of emotional distress, as established in *Cullison v. Medley*, requires a showing of extreme and outrageous conduct that intentionally or recklessly causes severe emotional distress. For a negligence claim, a plaintiff must demonstrate: 1) a duty owed by the defendant to the plaintiff; 2) a breach of that duty; and 3) an injury to the plaintiff resulting from the breach. Punitive damages are only available with clear and convincing evidence of the defendant's malice, fraud, gross negligence, or oppressiveness, excluding honest errors or mere negligence. 

In the context of a motion to strike, the plaintiffs argue that the trial court improperly excluded evidence essential for demonstrating a genuine issue of material fact, thereby obstructing summary judgment. The trial court's decision to strike in-car video footage from Officer Frolick's police vehicle, along with related testimony, is evaluated for abuse of discretion. The court found the video inadmissible due to hearsay concerns and deemed Officer Frolick’s testimony speculative. The plaintiffs contend that the excluded evidence, particularly Officer Frolick's affidavit and the in-car video, was critical. However, the court upheld the trial court's discretion, concluding that the affidavit's legal conclusions were insufficient and that the video did not substantively support the plaintiff's claims. The video was argued to be non-hearsay, but the defense countered that the plaintiffs failed to establish a proper foundation for its admission.

Tharp's statements and those of other Papa John's employees are considered admissions, while Officer Frolick's testimony is not. The plaintiffs failed to show how the excluded in-car video indicates a genuine material fact dispute, as the transcript supports the conclusion of qualified privilege. Tharp described an individual, Kelsey, as armed but did not claim he was threatened. The plaintiffs' challenge regarding the sufficiency of their defamation claim does not require further analysis due to the resolution of other matters. The court affirms the summary judgment for the defendants, dismissing the plaintiffs' late application for relief based on Tharp's guilty plea to False Reporting, as it was filed without justification after the oral argument. In dissent, Justice Boehm agrees with the legal standard but argues that the evidence suggests Tharp recklessly made false statements to a citizen and then knowingly repeated those to law enforcement, which should negate the qualified privilege and warrant reconsideration of the summary judgment on defamation and false imprisonment claims.

The majority finds that the plaintiffs' facts do not sufficiently challenge the privilege involved. However, the dissenting opinion highlights critical elements that may indicate Tharp knowingly made false statements. Tharp exited a store claiming one of the plaintiffs had brandished a gun, communicated this to a passerby, and subsequently to an employee without contacting the police. The passerby, believing Tharp, reported the incident, leading to police involvement. Tharp misrepresented his identity when questioned and fled the scene while officers interviewed store employees who reported no issue. 

While acknowledging that Tharp's actions could suggest a mistake, the dissent argues they also imply he knowingly made false accusations, supported by his inconsistent descriptions of the alleged weapon and his flight. The dissent references previous cases indicating that false reports do not automatically negate privilege but asserts that the cumulative evidence here—Tharp's flight, inconsistent statements, and absence of corroboration—supports a reasonable inference of defamation. Consequently, the dissent advocates reversing the summary judgment for the defendants and remanding the case for trial.

Boehm's dissent emphasizes significant developments following the trial court's summary judgment that challenge Tharp's claim of qualified privilege. On June 2, 2008, Tharp pleaded guilty to three offenses related to his employment at Papa John’s, including false reporting, acknowledging the submission of a false crime report regarding a male with a gun at the establishment. Tharp's admissions during the guilty plea hearing indicate an acknowledgment of the material facts of the case. The majority acted appropriately in denying the plaintiffs' petition for a Trial Rule 60(B) motion for relief from judgment, which, if granted, would have concluded the appeal. However, the emergence of Tharp's guilty plea after the summary judgment raises critical issues regarding the truthfulness of his statements, suggesting that this new evidence creates a genuine issue of material fact. Consequently, Boehm argues for the reversal of the trial court's judgment and remand for further proceedings, highlighting the importance of addressing this newly discovered evidence in the context of the appeal.