Privilege defense splits Court of Appeals

June 30, 2015

A split Indiana Court of Appeals found the privilege granted to store owners and employees in making claims to police does have limits.

Tikidanke Bah filed a complaint against Mac’s Convenience Stores LLC, d/b/a/ Circle K and her supervisor, David Ruffin, after she was found not guilty of theft. The store and Ruffin alleged she stole $1,500.

The Court of Appeals upheld summary judgment in favor of the appellees for Bah’s claims of negligent supervision, negligent infliction of emotional distress and malicious prosecution.

However, the majority reversed the trial court’s grant of summary judgment on Bah’s remaining claims based on defenses requiring state-of-mind and credibility determinations.

The appellees argued Bah’s entire case is based on Ruffin’s statements to Indianapolis police. This communication is privileged and, they asserted, Bah provided no evidence to overcome that privilege.

Noting the accusations made by Bah and Ruffin, along with their contentious relationship, the Court of Appeals found the matter should be settled by a jury rather than through summary judgment.

“Viewing the designated evidence and resolving all doubts in favor of Bah as the nonmoving party, as we must, we conclude that a jury must determine whether Ruffin was primarily motivated by ill will in accusing Bah of the alleged theft, whether his accusations were made without belief or grounds for belief in their truth, or whether he made those accusations in good faith,” Judge Terry Crone wrote for the majority. “In other words, we conclude that Appellees are not entitled to summary judgment on Bah’s remaining claims based on the qualified privilege defense.”

Judge Elaine Brown dissented, finding the qualified privilege defense applied. She argued summary judgment for the appellees was proper because there was no evidence that supported Bah’s contention that Ruffin’s statements to police were improperly made.

The case is Tikidanke Bah v. Mac’s Convenience Stores, LLC d/b/a/ Circle K and David Ruffin, 49A02-1407-CT-512.



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