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Majority upholds false statement is protected

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A split Indiana Supreme Court Tuesday upheld a trial court's ruling that a Papa John's employee's false statement to police that a customer had pulled out a gun is protected by qualified privilege. The dissenting judges believed because the employee first made the false statement to a passerby and then police, he knowingly reported false information so his statement shouldn't be protected.

At issue in Thomas Williams and Sanford Kelsey v. Kelly Eugene Tharp and Papa John's U.S.A. Inc., No. 29S02-0901-CV-40, is whether Kelly Tharp's false statement to police that he saw Sanford Kelsey pull out a gun while in the pizza place should be protected by qualified privilege. Tharp told a passerby outside the store that he had seen Kelsey pull out the gun; he also told another employee, who didn't see a gun. The passerby called police, who pulled the two men over, detained them for an hour, and then determined there was no gun. Tharp gave his father's name and information to police - which he had used to get his job at Papa John's - and then left because he knew he had outstanding warrants.

Williams and Kelsey sued seeking compensatory and punitive damages, alleging defamation per se, false imprisonment, emotional distress, negligence, negligent hiring, retention, and supervision. The trial court granted summary judgment in favor of the defendants on all counts. The Indiana Court of Appeals reversed and remanded on each count.

Chief Justice Randall T. Shephard, and Justices Brent Dickson and Frank Sullivan affirmed Tharp's statement to police was protected by qualified privilege. The high court determined that qualified privilege in Indiana requires more than reckless disregard of the truth to support a claim of defamation or false imprisonment based on an inaccurate report to police of possible criminal activity. The reckless standard would subject a person to liability for reporting criminal conduct not only when the speaker actually knew the statement was false but also if it could be shown they should have known the statement wasn't true, wrote Justice Dickson.

Williams and Kelsey argued there is a genuine issue of whether Tharp made his statement "without belief or grounds for belief in its truth." But the majority determined the plaintiffs hadn't designated sufficient evidence to give rise to a genuine issue about whether Tharp made his statement knowing it was false or that he was so obviously mistaken as to support a reasonable inference that he lied, the justice continued.

Justices Theodore Boehm and Robert Rucker dissented in separate opinions, agreeing with the Court of Appeals' decision. In their dissents, the justices emphasized that Tharp originally gave his false statement to a passerby, which isn't protected by qualified privilege, and then gave the same statement to police. They also noted Tharp didn't call police, misidentified himself to police, and later fled.

The majority also rejected the plaintiffs' application for leave to file a Trial Rule 60(B) motion for relief of judgment because Tharp later pleaded guilty to false reporting. The majority ruled they could file a T.R. 60(B)(8) motion. Justice Rucker, who agreed with Justice Boehm's dissent, believed Tharp's guilty plea was important to the case and the high court shouldn't turn a "blind eye" to the evidence just because the plaintiffs waited to file their motion until after the oral arguments. The justice believed the plea raises a genuine issue of material fact as it could be considered newly discovered evidence, so the high court should at least reverse the trial court's judgment and remand for further proceedings.

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  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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