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. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

  2. Here is an interesting 2012 law review article for any who wish to dive deeper into this subject matter: Excerpt: "Judicial interpretation of the ADA has extended public entity liability to licensing agencies in the licensure and certification of attorneys.49 State bar examiners have the authority to conduct fitness investigations for the purpose of determining whether an applicant is a direct threat to the public.50 A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided by § 35.139.”51 However, bar examiners may not utilize generalizations or stereotypes about the applicant’s disability in concluding that an applicant is a direct threat.52"

  3. We have been on the waiting list since 2009, i was notified almost 4 months ago that we were going to start receiving payments and we still have received nothing. Every time I call I'm told I just have to wait it's in the lawyers hands. Is everyone else still waiting?

  4. I hope you dont mind but to answer my question. What amendment does this case pretain to?

  5. Research by William J Federer Chief Justice John Marshall commented May 9, 1833, on the pamphlet The Relation of Christianity to Civil Government in the United States written by Rev. Jasper Adams, President of the College of Charleston, South Carolina (The Papers of John Marshall, ed. Charles Hobson, Chapel Hill: Univ. of North Carolina Press, 2006, p, 278): "Reverend Sir, I am much indebted to you for the copy of your valuable sermon on the relation of Christianity to civil government preached before the convention of the Protestant Episcopal Church in Charleston, on the 13th of February last. I have read it with great attention and advantage. The documents annexed to the sermon certainly go far in sustaining the proposition which it is your purpose to establish. One great object of the colonial charters was avowedly the propagation of the Christian faith. Means have been employed to accomplish this object, and those means have been used by government..." John Marshall continued: "No person, I believe, questions the importance of religion to the happiness of man even during his existence in this world. It has at all times employed his most serious meditation, and had a decided influence on his conduct. The American population is entirely Christian, and with us, Christianity and Religion are identified. It would be strange, indeed, if with such a people, our institutions did not presuppose Christianity, and did not often refer to it, and exhibit relations with it. Legislation on the subject is admitted to require great delicacy, because freedom of conscience and respect for our religion both claim our most serious regard. You have allowed their full influence to both. With very great respect, I am Sir, your Obedt., J. Marshall."