The Indiana Court of Appeals reversed a grant of summary judgment in favor of a national pizza chain and its employee, finding there were genuine issues of fact as to whether the employee's statement to police was protected by privilege.
In Thomas Williams and Sanford Kelsey v. Kelly Eugene Tharp and Papa John's U.S.A. Inc., No. 29A02-0707-CV-625, Thomas Williams and Sanford Kelsey appealed the trial court grant of summary judgment in favor of Papa John's on their claims for defamation, false imprisonment, negligence, and intentional infliction of emotional distress.
Williams and Kelsey picked up a pizza at a Westfield Papa John's. On their way out, an employee, Kelly Tharp, who was using his father's name and information to get the job at Papa John's because he had a criminal past, told a passerby and other employees that Kelsey had a gun. Other employees didn't report seeing a gun. The police were called and Tharp gave the officer the license plate number and description of Kelsey's car.
As the two were returning home with their pizza, police surrounded the car and ordered them out at gunpoint. The two were handcuffed and detained for more than an hour while police searched and discovered they didn't have a gun.
At the store, a police officer stood behind the counter where Tharp would have been and deduced that he wouldn't have been able to see Kelsey pull a gun from his waist because of the location of the counter.
The Court of Appeals found there were many issues of fact in this case and granting Papa John's and Tharp summary judgment on the claims was an error.
"The allegation Tharp reported Williams and Kelsey 'pulled a gun' presented factual issues for trial because, as the trial court correctly noted, it imputed criminal activity to Williams and Kelsey," wrote Judge Melissa May.
The trial court erred in concluding Tharp's statement was privileged, even if it was defamatory, because there is a genuine issue of fact as to whether privilege applied to his statement. Williams and Kelsey offered ample evidence to give rise to that issue of fact whether Tharp acted with reckless disregard for the truth, she wrote.
As a result of the question of whether Tharp's statement was protected by privilege, summary judgment on the false imprisonment count was improperly premised on the qualified privilege.
Because of other issues of fact on the intentional infliction of emotional distress, negligent hiring, and punitive damages claims, granting summary judgment in favor of the pizza chain and Tharp was an error.
The appellate court remanded the case for trial.
"My clients are very happy about it and looking forward to getting their day in court," said Arend J. Abel of Indianapolis-based law firm Cohen & Malad, who represented Williams and Kelsey.
Abel noted that Tharp recently pleaded guilty to false informing, acknowledging he deliberately made a false report.