Court orders suit against Papa John's to trial

Jennifer Nelson
January 1, 2008
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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.

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  1. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues