Williams v. Tharp, No. 29S02-0901-CV-40.

Docket NºNo. 29S02-0901-CV-40.
Citation914 N.E.2d 756
Case DateOctober 13, 2009
CourtSupreme Court of Indiana
914 N.E.2d 756
Thomas WILLIAMS and Sanford Kelsey, Appellants (Plaintiffs below),
v.
Kelly Eugene THARP and Papa John's U.S.A., Inc., Appellees (Defendants below).
No. 29S02-0901-CV-40.
Supreme Court of Indiana.
October 13, 2009.

[914 N.E.2d 759]

Arend J. Abel, Kelley J. Johnson, Cohen & Malad, LLP, Indianapolis, IN, Attorneys for Appellants.

Julia Blackwell Gelinas, John M.T. Chavis, II, Lucy R. Dollens, Frost Brown Todd LLC, Indianapolis, IN, Attorneys for Appellee, Kelly Eugene Tharp.

John B. Drummy, Eric D. Johnson, Jeffrey D. Hawkins, Kightlinger & Gray, LLP, Indianapolis, IN, Attorneys for Appellee, Papa John's U.S.A., Inc.

On Transfer from the Indiana Court of Appeals, No. 29A02-0707-CV-625.

DICKSON, Justice.


This appeal challenges the trial court's grant of summary judgment which found privileged a restaurant employee's statements to a passerby and a police officer that a customer had "pulled a gun" inside the store. The plaintiffs, Sanford Kelsey and Thomas Williams, respectively, the suspected gun carrier and his companion (neither of whom actually had a gun), sued the restaurant operator, Papa John's U.S.A., Inc., and its employee, Kelly Tharp, for a variety of torts (defamation per se, false imprisonment, intentional infliction of emotional distress, negligent hiring, and negligence) seeking damages, including punitive damages. The Court of Appeals reversed and remanded for trial. Williams v. Tharp, 889 N.E.2d 870 (Ind. Ct.App.2008). We granted transfer and now affirm the trial court's judgment.

On February 19, 2005, around 9:30 p.m., the plaintiffs drove to a Papa John's restaurant to pick up an order. Kelsey wore a full-length tan coat and at the front of his waist a rectangular black fanny pack with silver reflective material. Williams planned to pick up the tab, but inside the restaurant Kelsey contributed by handing cash to Williams, which Kelsey removed from his brown leather bi-fold wallet inside the fanny pack. Williams accepted the money and paid the bill by credit card. The men left the store and drove directly home.

Tharp worked that night as a delivery driver. He had never met and did not know the plaintiffs. While the plaintiffs were paying, Tharp had come to the front

914 N.E.2d 760

of the store and, according to his deposition testimony, "saw a guy at the counter, and he was looking down . . ., and he pulled out what I thought was a gun." Tharp said the man "looked up. . . . He didn't move his head, he moved his eyes, and he saw me looking at him, and he stuck his hand back in his coat." Tharp "went out the door, and whoever was there, the first person it was . . . I said, we need to watch that guy because I think he had a gun. He pulled out a gun, and he stuck it back in when he thought—when he saw me looking at him." The passerby called police. Meanwhile, Tharp returned inside and told another restaurant employee, Christian Martin, that one of the customers had a gun. Martin walked to the front of the store and noticed Kelsey's fanny pack but did not see a gun.

The Westfield, Indiana, Police Department dispatched Officer Jeff Frolick to Papa John's "on a report of a person carrying a weapon." The officer happened to be across the street at the time, so he arrived quickly, but the plaintiffs had already left. After parking, Officer Frolick spoke with two men in the parking lot— one was Tharp, who falsely identified himself as "Arthur Tharp"; the other was the passerby. Tharp told the officer that "two black males came into Papa John's Restaurant, one was wearing a long tan coat and he pulled a hand gun out of his waistband or a holster and then put it back into some type of holder." Tharp gave Officer Frolick the license plate number, which he had written down, and a description of Williams's car. Frolick relayed this information to dispatch. Tharp described the weapon as a medium-sized silver gun with a brown wooden handle with two small silver circles. He told Officer Frolick that he had been standing behind the clerk at the register when he saw the gun. (Later in his deposition Tharp recalled the gun as having a black grip with small silver circles on the handle.) It is undisputed that Tharp never claimed that either plaintiff committed a robbery, made threats, demanded money, or pointed a gun at anyone.

Officer Frolick told Tharp to stay by the police car while he went inside to speak with other employees. None of the three other employees reported that the store had been robbed or that anyone had made threats with a gun or demanded money. Frolick went behind the counter to where he understood Tharp to say he had been standing, but the officer did not think someone standing in that location could see a customer's waist and believed that Tharp, who is shorter than Frolick, could not have seen what he claimed. When Officer Frolick returned outside, Tharp was gone. Tharp explained at his deposition that he fled because he had outstanding warrants and feared arrest once his identity was discovered and that "what I saw was the only motivation. I didn't—I didn't really want to talk to police that night."

After Williams and Kelsey made the short drive to Williams's home and parked, police ordered them out of the car at gunpoint, ordered them to their knees, and handcuffed them, thereafter detaining the men for over an hour while family and neighbors looked on. Police told the men they were investigating a report of someone "flashing a gun around at the Papa John's location" or "pulling a gun out." No officer said they were investigating a robbery. Police found no gun, and the men were released.

Tharp had worked for Papa John's elsewhere twice before. The first stint ended with a firing and a later conviction for theft. He used a false name for his second period of employment, which ended because of his incarceration for fraud stemming

914 N.E.2d 761

from events unrelated to his employment. When hired the third time, he used his father's name, social security number, and driver's license number. After he left the scene on February 19, Tharp did not return to work at Papa John's (he later learned that he was fired). Tharp later returned money to Papa John's that was in his car when he left and penned a letter, maintaining, "I don't care what that Black guy says—he was getting ready to rob the store. Why else put his hand on his gun & start to pull it out[?]"

The plaintiffs sued Papa John's and Tharp, seeking compensatory and punitive damages, alleging that Tharp's statement constituted defamation per se, that the plaintiffs were falsely imprisoned as a result, that Tharp intentionally inflicted emotional distress upon them, and that Tharp's actions were negligent. Papa John's was alleged to be liable under the doctrine of respondeat superior as well as for negligent hiring, retention, and supervision. Papa John's moved for summary judgment, and Tharp joined that motion. Papa John's also moved to strike certain items of evidence that the plaintiffs designated in their opposition to summary judgment, including paragraph 9 of Officer Frolick's affidavit (stating his belief that Tharp could not see a customer's waist from behind the counter) and paragraph 10 (his testimony based on reviewing Papa John's surveillance video), as well as in-car video from Frolick's vehicle and a transcript of that video.

The trial court granted summary judgment on all counts. The court held that a qualified privilege protected Tharp's statements, compelling summary judgment for defamation, as well as for negligence, intentional infliction of emotional distress, punitive damages, and, with no underlying tort, negligent hiring. The court also granted summary judgment on the plaintiffs' claim of false imprisonment, concluding that a false report to police was insufficient to create liability. The trial court granted in part and denied in part Papa John's motion to strike. The court struck the video taken from Officer Frolick's car at the scene as well as paragraph 10 of his affidavit, but declined to strike paragraph 9.1 The Court of Appeals reversed and remanded on each count. We granted transfer.

A grant of summary judgment is reviewed de novo. N. Ind. Pub. Serv. Co. v. U.S. Steel Corp., 907 N.E.2d 1012, 1018 (Ind.2009). Drawing all reasonable inferences in favor of Williams and Kelsey, the non-moving parties, summary judgment is appropriate "if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Ind. Trial Rule 56(C). A fact is "material" if its resolution would affect the outcome of the case, and an issue is "genuine" if a trier of fact is required to resolve the parties' differing accounts of the truth, Gaboury v. Ireland Road Grace Brethren, Inc., 446 N.E.2d 1310, 1313 (Ind.1983), or if the undisputed material facts support conflicting reasonable inferences, Bochnowski v. Peoples Fed. Sav. & Loan Ass'n, 571 N.E.2d 282, 285 (Ind. 1991). If Tharp and Papa John's have "demonstrate[d] the absence of any genuine issue of fact as to a determinative issue," they are entitled to summary judgment

914 N.E.2d 762

unless the plaintiffs "come forward with contrary evidence" showing a triable issue for the trier of fact. Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind.1994).

Furthermore, the trial court's judgment arrives on appeal "clothed with a presumption of validity," and the challenging party "bears the burden of proving that the trial court erred in determining that there are no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law." Rosi v. Bus. Furniture Corp., 615 N.E.2d 431, 434 (Ind.1993) (internal quotation marks omitted). The plaintiffs, the challenging parties in this appeal, present various arguments to support their contention that the trial court erroneously granted summary judgment...

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299 practice notes
  • Gunderson v. State, No. 46S03–1706–PL–423
    • United States
    • Indiana Supreme Court of Indiana
    • February 14, 2018
    ...is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ " Williams v. Tharp , 914 N.E.2d 756, 761 (Ind. 2009) (quoting Ind. Trial Rule 56(C) ). On cross-motions for summary judgment, "we simply consider each motion separately to det......
  • Berian v. Berberian, Docket No. 47122
    • United States
    • United States State Supreme Court of Idaho
    • November 2, 2020
    ...111-12 (2007) ; Fridovich v. Fridovich , 598 So. 2d 65, 67 (Fla. 1992) (surveying case law of various jurisdictions); Williams v. Tharp , 914 N.E.2d 756, 763 (Ind. 2009) ; Caldor, Inc. v. Bowden , 330 Md. 632, 625 A.2d 959, 969 (1993) ; DeLong v. Yu Enters., Inc. , 334 Or. 166, 47 P.3d 8, 1......
  • LBM Realty, LLC v. Mannia, No. 71A03–1402–PL–66.
    • United States
    • Indiana Court of Appeals of Indiana
    • October 28, 2014
    ...is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.2009) (quoting Ind. Trial Rule 56(C) ). A fact is “material” if its resolution would affect the outcome of the case, and an issue ......
  • Estate of Mayer v. Lax, Inc., No. 37A03–1207–PL–323.
    • United States
    • Indiana Court of Appeals of Indiana
    • October 7, 2013
    ...Spangler Jennings claim the absolute privilege would bar all of Lax and Lasco's claims. For this proposition they cite Williams v. Tharp, 914 N.E.2d 756 (Ind.2009). That case, however, dealt with the “qualified privilege” for reporting suspected crimes to law enforcement, not the “absolute ......
  • Request a trial to view additional results
301 cases
  • Gunderson v. State, No. 46S03–1706–PL–423
    • United States
    • Indiana Supreme Court of Indiana
    • February 14, 2018
    ...is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ " Williams v. Tharp , 914 N.E.2d 756, 761 (Ind. 2009) (quoting Ind. Trial Rule 56(C) ). On cross-motions for summary judgment, "we simply consider each motion separately to det......
  • Berian v. Berberian, Docket No. 47122
    • United States
    • United States State Supreme Court of Idaho
    • November 2, 2020
    ...111-12 (2007) ; Fridovich v. Fridovich , 598 So. 2d 65, 67 (Fla. 1992) (surveying case law of various jurisdictions); Williams v. Tharp , 914 N.E.2d 756, 763 (Ind. 2009) ; Caldor, Inc. v. Bowden , 330 Md. 632, 625 A.2d 959, 969 (1993) ; DeLong v. Yu Enters., Inc. , 334 Or. 166, 47 P.3d 8, 1......
  • LBM Realty, LLC v. Mannia, No. 71A03–1402–PL–66.
    • United States
    • Indiana Court of Appeals of Indiana
    • October 28, 2014
    ...is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.2009) (quoting Ind. Trial Rule 56(C) ). A fact is “material” if its resolution would affect the outcome of the case, and an issue ......
  • Estate of Mayer v. Lax, Inc., No. 37A03–1207–PL–323.
    • United States
    • Indiana Court of Appeals of Indiana
    • October 7, 2013
    ...Spangler Jennings claim the absolute privilege would bar all of Lax and Lasco's claims. For this proposition they cite Williams v. Tharp, 914 N.E.2d 756 (Ind.2009). That case, however, dealt with the “qualified privilege” for reporting suspected crimes to law enforcement, not the “absolute ......
  • Request a trial to view additional results

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