David McCollough v. Noblesville Schools and Jeff Bryant , 2016 Ind. App. LEXIS 399 ( 2016 )

FILED
Nov 02 2016, 7:49 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES
S. Matthew Cook Andrew A. Manna
Stephen W. Cook Alexander P. Pinegar
Noblesville, Indiana Brent R. Borg
Noblesville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David McCollough, November 2, 2016
Appellant-Defendant, Cross-Appellee Court of Appeals Case No.
29A02-1512-CT-2181
v. Appeal from the Hamilton Circuit
Court
Noblesville Schools and Jeff The Honorable Paul A. Felix,
Bryant, Judge
Appellees-Plaintiffs. Trial Court Cause No.
29C01-1409-CT-8761
Altice, Judge.
Case Summary1
1
We heard oral argument in this cause on October 5, 2016, at Clinton Prairie High School. We would like
to extend our gratitude to the staff, faculty, and students for their hospitality. We also commend counsel for
their excellent written and oral advocacy.
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[1] David McCollough filed a complaint against Noblesville Schools and Jeff
Bryant, Principal of Noblesville High School (Bryant) (collectively, the
Defendants) in which he asserted claims for defamation, intentional infliction of
emotional distress, negligence, breach of contract, and tortious interference with
a contract/business relationship. McCollough also claimed that his due process
rights were violated. The Defendants filed a motion for summary judgment.
The trial court held a hearing and thereafter denied summary judgment as to
McCollough’s defamation claim, but granted summary judgment in favor of the
Defendants on all remaining claims. In this interlocutory appeal, McCollough
challenges the grant of summary judgment while the Defendants cross-appeal
the denial of summary judgment with regard to the defamation claim.
[2] We affirm.
Facts & Procedural History
[3] McCollough was the head boys basketball coach for Noblesville High School
for twenty years, and for each year, he executed and worked under a coaching
contract with a fixed term. During basketball practice on January 28, 2014,
players were engaged in a drill when McCollough called a foul on one of them.
As described by witnesses, the player then threw a basketball more forcefully
than appropriate at McCollough. McCollough admits that “out of frustration”
he threw the ball back toward the player. Appellant’s Appendix at 297. Some of
those who witnessed the incident indicated that the player reached high for the
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ball and the ball grazed his fingertips. Those same witnesses indicated that had
the player not reached for the ball, the ball would not have touched the player.
[4] According to McCollough, on January 29, 2014, Bryant notified him that “a
disgruntled player . . . had alleged that [McCollough] threw a basketball in the
manner of a baseball throw at [him] in anger and intentionally struck [him] in
the head with a ball. . . .” Id. at 296. McCollough claims that he “promptly
denied that [he] ever threw a basketball at any player in the manner of a
baseball pass, threw a pass in anger, or ever hit a player in the head or face with
a ball.” Id. According to Bryant, he and McCollough watched a video
recording of the incident, which apparently shows that the ball stopped when it
reached the player indicating that it did indeed hit the player in some fashion.2
McCollough did not respond to Bryant’s observation, but continued to
maintain that he was not aware the ball hit the player. McCollough claims that
Bryant stated he would conduct further investigation into the matter.
[5] McCollough asserts that Bryant failed to conduct a thorough investigation in
that he did not interview witnesses to the incident. Rather, McCollough claims
that Bryant relied solely on the information conveyed to him by the basketball
player. McCollough further claims that Bryant led administrators and others to
believe that he had conducted a thorough investigation, including interviewing
players and assistant coaches who were present and/or witnessed the incident.
2
The video itself was not designated as evidence for purposes of summary judgment.
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Bryant, on the other hand, asserts that given McCollough’s admission that he
threw a ball toward the player and a player’s description of what occurred, there
was sufficient evidence to inform him of what had transpired and thus, no
further investigation was necessary.
[6] On January 31, 2014, Bryant advised McCollough that he was being placed on
administrative leave for five days as a result of the incident. McCollough was
also asked to attend a press conference on the morning of February 1, 2014, to
address the incident involving the player. He could not attend however because
he became physically ill as a result of the suspension. Instead, McCollough
agreed to work with a public relations director for Noblesville Schools to draft a
statement that would be released to the public. The statement to which
McCollough agreed provides:
An incident occurred at basketball practice earlier this week in
which, out of frustration during a drill, I threw a basketball and
the ball allegedly hit a player. My actions were unacceptable, and
I greatly regret that I allowed this to happen. I am sorry and
publicly apologize to my players, families, and fans. This is not
the behavior that I want to model for my players, and it will not
happen again.
Id. at 297 (emphasis supplied). Later that day, Noblesville Schools sent the
above statement to media outlets in Central Indiana and elsewhere. However,
the word “allegedly”, which McCollough claims he was adamant about
including, had been removed without McCollough’s knowledge or consent.
McCollough maintains that the word “allegedly” was removed at the direction
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of Bryant3 and that its removal completely changed the meaning of
McCollough’s statement such that it read as an admission by McCollough to
hitting a player with a basketball.
[7] On February 4, 2014, McCollough was called into a meeting with Bryant and
an assistant superintendent and was instructed to sign a memo, the substance of
which McCollough claims he did not agree with. 4 McCollough maintains that
he was told that his signature was required before he could return to teaching
and coaching the basketball team. McCollough asserts that he signed the
memo as an acknowledgment of what was alleged and with the further
understanding that he could submit a letter for his file that contained his version
of events. On February 18, 2014, McCollough did just that and submitted to
Noblesville Schools a “[s]tatement for file - to be attached to signed paper from
suspension letter” that set forth his version of what transpired during practice
on January 28, 2014. Id. at 76.
[8] McCollough’s written contract for his position as the head basketball coach
expired by its own terms on March 24, 2014. After that date, McCollough
maintains that he continued to act as the head basketball coach as he had done
for the previous nineteen years by identifying himself as the head coach,
3
McCollough directs us to the deposition of the public relations director in which she states that Bryant,
although not explicitly, “made it very clear” that he wanted the word allegedly removed from McCollough’s
statement. Id. at 184. In contrast, Bryant maintains that he never told the public relations director to remove
the word allegedly from McCollough’s statement.
4
The memo provided that McCollough “threw a ball at a student/athlete in a state of anger” and that “[t]he
ball hit the student/athlete.” Id. at 302.
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corresponding with others in his capacity as head coach, working with
returning players, and talking to college basketball coaches and scouts.
McCollough also notes that at a school board meeting on April 15, 2014, he
was introduced as the head coach of the boys basketball team.
[9] On April 16, 2014, Bryant handed McCollough a letter that informed
McCollough that he was not being recommended for the head coaching
position for the following school year. McCollough claims that he appealed the
decision in writing and asked the Noblesville School Board to review the
matter. However, a hearing was never held. Thereafter, McCollough claims
that he applied for approximately thirty-one basketball coaching positions at
high schools and colleges around Indiana. McCollough asserts that the main
reason he did not receive any of the coaching positions is directly related to the
public statement issued by Noblesville Schools that read as an admission by
him to throwing a ball at and hitting a player.
[10] On September 4, 2014, McCollough filed his complaint against the Defendants,
asserting claims for defamation, intentional infliction of emotional distress,
negligence, breach of contract, and tortious interference with a
contract/business relationship.5 McCollough also claimed the Defendants
violated his due process rights. On December 22, 2014, the Defendants filed a
motion for summary judgment. The trial court held a hearing on October 29,
5
McCollough had previously filed a timely tort claim notice.
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2015, and issued its order on November 17, 2015, granting the Defendants’
motion for summary judgment as to all of McCollough’s claims except for
defamation. McCollough filed a motion to reconsider or in the alternative a
motion to certify the court’s summary judgment order for interlocutory appeal.
After a hearing, the trial court denied the motion to reconsider, but granted the
request for certification. This court accepted jurisdiction on February 1, 2016.
Discussion & Decision
[11] In this interlocutory appeal, we are asked to consider the appropriateness of the
trial court’s summary judgment ruling. We begin by noting that Indiana
follows a heightened summary judgment standard. As our Supreme Court has
recently recognized:
Summary judgment “is a desirable tool to allow the trial court to
dispose of cases where only legal issues exist.” But it is also a
“blunt ... instrument” by which “the non-prevailing party is
prevented from having his day in court”. We have therefore
cautioned that summary judgment “is not a summary trial”; and
the Court of Appeals has often rightly observed that it “is not
appropriate merely because the non-movant appears unlikely to
prevail at trial.” In essence, Indiana consciously errs on the side
of letting marginal cases proceed to trial on the merits, rather
than risk short-circuiting meritorious claims.
Hughley v. State, 15 N.E.3d 1000, 1003-04 (Ind. 2014) (citations omitted).
[12] Summary judgment is appropriate if, after reviewing the designated evidence,
“there is no genuine issue as to any material fact and ... the moving party is
entitled to a judgment as a matter of law.” T.R. 56(C). A fact is material if its
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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, or if the
undisputed material facts support conflicting reasonable inferences. Williams v.
Tharp, 914 N.E.2d 756, 761 (Ind. 2009). When the trial court has granted
summary judgment, the nonmoving party has the burden on appeal of
persuading us that the grant of summary judgment was in error. Adams v.
ArvinMeritor, Inc., 48 N.E.3d 1, 9 (Ind. Ct. App. 2015). We review an order
granting summary judgment de novo. Id.Intentional Infliction of Emotional Distress
[13] The tort of intentional infliction of emotional distress (IIED) occurs when the
defendant “(1) engages in extreme and outrageous conduct (2) which
intentionally or recklessly (3) causes (4) severe emotional distress to another.”
Bah v. Mac’s Convenience Stores, LLC, 37 N.E.3d 539, 549 (Ind. Ct. App. 2015)
(quoting Curry v. Whitaker, 943 N.E.2d 354, 361 (Ind. Ct. App. 2011)), trans.
denied. The requirements to prove this tort are rigorous, and at its foundation is
“the intent to harm the plaintiff emotionally.” Id. at 550. As often quoted from
Comment (d) of the Restatement (Second) of Torts Section 46 (1965),
The cases thus far decided have found liability only where the
defendant’s conduct has been extreme and outrageous. It has not
been enough that the defendant has acted with an intent which is
tortious or even criminal, or that he has intended to inflict
emotional distress, or even that his conduct has been
characterized by “malice,” or a degree of aggravation which
would entitle the plaintiff to punitive damages for another tort.
Liability has been found only where the conduct has been so
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outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.
Generally, the case is one in which the recitation of the facts to
an average member of the community would arouse his
resentment against the actor, and lead him to exclaim,
“Outrageous!”
[14] Id. The question of what amounts to extreme and outrageous conduct depends
in part on prevailing cultural norms and values, and “[i]n the appropriate case,
the question can be decided as a matter of law.” Id. This is the case here.
[15] McCollough argues that Bryant’s conduct in failing to thoroughly investigate
the incident, leading others to believe that he had fully investigated the incident
when he had not, and in directing that McCollough’s statement be altered so
that it read as a purported admission by McCollough was outrageous, or at the
very least, is a matter to be determined by the trier of fact. He also points to
Noblesville Schools and argues that its intentional publication of an altered
statement that was attributed to McCollough as an admission that he hit a
player with a ball, an allegation that McCollough adamantly denied, was
extreme and outrageous conduct.
[16] We agree with the Defendants that even accepting the facts as presented by
McCollough, we cannot say that the Defendants’ conduct, even if intentional,
qualifies as being so outrageous in character or extreme in degree that it is to be
regarded as atrocious or utterly intolerable in a civilized community. See Jaffri
v. JPMorgan Chase Bank, N.A., 26 N.E.3d 635, 640 (Ind. Ct. App. 2015) (holding
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that even assuming defendant intentionally mishandled mortgage-related
documents, such conduct is not “the type of beyond-the-pale, ‘outrageous’
conduct that may be covered by an IIED claim”); cf. Mitchell v. Stevenson, 677
N.E.2d 551 (Ind. Ct. App. 1997) (holding that evidence that decedent’s second
wife secretly decided to disinter decedent’s remains rather than maintain a
grave with a headstone pursuant to an agreement with family members
sufficiently established that wife’s actions were deliberate and extreme and
outrageous for purposes of establishing an IIED claim), trans. denied. Because
we conclude as a matter of law that McCollough cannot establish the
Defendants engaged in extreme and outrageous conduct, we need not address
McCollough’s claims regarding the other elements of his IIED claim. The trial
court did not err in granting summary judgment in favor of the Defendants on
McCollough’s IIED claim.
Breach of Contract
[17] McCollough argues that the trial court erred in granting summary judgment on
his claim for breach of contract. The essential elements of a breach of contract
claim are the existence of a contract, the defendant’s breach of the contract, and
damages. Murat Temple Ass’n, Inc. v. Live Nation Worldwide, Inc., 953 N.E.2d
1125, 1128-29 (Ind. Ct. App. 2011), trans. denied. It is undisputed that
McCollough’s coaching contract was a term contract that expired by its own
terms on March 24, 2014. McCollough nevertheless argues that his tenure as
head basketball coach continued after March 24, 2014, under an implied
contract, which McCollough claims indicates the intentions of the parties that
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he would be awarded a new term coaching contract for the following season.
McCollough relies on the following:
A contract implied in fact derives from the ‘presumed’ intention
of the parties as indicated by their conduct. When an agreement
expires by its terms, if, without more, the parties continue to
perform as theretofore, an implication arises that they have
mutually assented to a new contract containing the same
provisions as the old. Ordinarily, the existence of such a new
contract is determined by the ‘objective’ test, i.e., whether a
reasonable man would think the parties intended to make such a
new binding agreement—whether they acted as if they so
intended.
[18] JKL Components Corp. v. Insul-Reps, Inc., 596 N.E.2d 945, 951 (Ind. Ct. App.
1992) (quoting Martin v. Campanaro, 156 F.2d 127, 129 (2nd Cir. 1946)), trans.
denied. McCollough maintains that even after the term of his coaching contract
expired, he continued to act as head coach in the same manner as he had during
each of the previous nineteen years, and each time, he was presented with a
new term coaching contract. McCollough also notes that he was even
acknowledged as head coach by the school board after his coaching contract
had expired and asserts that he continued working with players, speaking with
college coaches, and using stationery that identified him as head coach, among
other coaching duties, after March 24.
[19] We begin by addressing the applicability of JKL Components, the case upon
which McCollough relies. In that case, the court was asked to consider the
existence of an implied contract under California law. Further, the facts in that
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case are inapposite to the case before us. In JKL Components, the parties were
unaware that the term of the contract had ended and yet each acted as if the
written contract was still in effect. Under these circumstances, we held that the
trial court correctly determined an implied contract existed between the parties.
Here, however, all parties were aware that the coaching contract was a term
contract and that it expired on March 24, 2014.
[20] Although not directly on point, we find Vincennes Univ. v. Sparks, 988 N.E.2d
1160 (Ind. Ct. App. 2013), instructive. In Sparks, the basketball coach was
investigated for falsifying information on a basketball recruit’s application. In
lieu of facing disciplinary proceedings, the coach agreed to forfeit his tenure and
be subject to a zero-tolerance policy. The university manual provided that a
faculty member who forfeited tenure was then employed on a year-to-year
contract and the university was free to renew or not renew the contract each
year as it saw fit. The coach also signed a contract “for a period commencing
on August 15, 2004, and ending on May 15, 2005.” Id. at 1167. At the
conclusion of the 2004-2005 academic year, the coach was notified that his
contract would not be renewed for the following academic year. There was no
allegation that the coach had violated the zero-tolerance policy. This court was
reluctant to infer a promise of continued employment that was not clearly
expressed in the contract. See Sparks, 988 N.E.2d at 1167 (citing Orem v. Ivy
Tech State College, 711 N.E.2d 864, 871 (Ind. Ct. App. 1999), trans. denied).
Thus, looking to the university’s policy and the defined term of Sparks’s written
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contract, the court concluded that Sparks had no reasonable expectation of
continued employment after the term of his contract expired. Id. at 1168.
[21] Here, McCollough’s coaching contracts for the nineteen years preceding the
2013-2014 season were term contracts with a defined start and end date.
Indeed, the coaching contract at issue expired by its own terms on March 24,
2014. None of the coaching contracts contained a promise of continued
employment beyond the expiration of the term. Even if we accept
McCollough’s claim that he continued as head coach under an implied contract
after March 24, 2014,6 McCollough has not established that such implied
contract contained a promise that he would be retained as head coach for the
next season. As in Sparks, supra, we will not infer a promise of continued
employment that was not clearly expressed in the contract, express or implied.
We therefore conclude that the trial court did not err in granting summary
judgment on McCollough’s breach of contract claim.
Tortious Interference with a Business/Contract Relationship
[22] The elements of tortious interference with a business relationship are: (1) the
existence of a valid relationship; (2) the defendant’s knowledge of the existence
of the relationship; (3) the defendant’s intentional interference with that
relationship; (4) the absence of justification; and (5) damages resulting from
6
Presumably, McCollough would then continue to act as the head coach of the basketball team under an
implied contract until such time as he was presented with and executed a term contract for the following
season.
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defendant’s wrongful interference with the relationship. Felsher v. Univ. of
Evansville, 755 N.E.2d 589, 598 n.21 (Ind. 2001) (citing Levee v. Beeching, 729
N.E.2d 215, 222 (Ind. Ct. App. 2000)). Additionally, our Supreme Court has
held that “this tort requires some independent illegal action.” Brazauskas v. Fort
Wayne–South Bend Diocese, Inc., 796 N.E.2d 286, 291 (Ind. 2003). Defamation,
however, “does not constitute illegal conduct for the purpose of determining
whether one tortiously interfered with the business relationship of another.”
Miller v. Cent. Ind. Cmty. Found., Inc., 11 N.E.3d 944, 961 (Ind. Ct. App. 2014).
The elements of an action for tortious interference with a contract are the same
as the elements for interference with a business relationship except that there is
a requirement for a valid and enforceable contract. See Levee, 729 N.E.2d at
221.
[23] McCollough’s tortious interference claim is two-fold. First, he argues that
Bryant interfered with his business and contractual relationship with
Noblesville Schools. Specifically, McCollough asserts that Bryant interfered
with his status as head coach by failing to thoroughly investigate the incident
that McCollough claims led to his firing. In his second claim, McCollough
argues that the Defendants tortiously interfered with his business and
contractual relationship with the thirty-one schools to which he applied for a
coaching position. McCollough maintains that the primary reason he was
passed over for such positions was due to his purported admission to hitting a
player with a ball that came about after Bryant directed that McCollough’s
statement be altered before being published by Noblesville Schools.
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[24] With regard to McCollough’s claims of tortious interference with a business
relationship, McCollough has not alleged any independent illegal action on
Bryant’s part. As noted above, even assuming Bryant’s conduct is deemed to
constitute defamation, such does not satisfy this element of a claim for tortious
interference with a business relationship. This claim therefore fails as a matter
of law and the trial court did not err in granting summary judgment in favor of
the Defendants.
[25] Turning to McCollough’s claims of tortious interference with a contract,
McCollough must establish that a valid contract exists. With respect to his
interference claim involving Noblesville Schools, it is undisputed that
McCollough’s coaching contract was a term contract that expired by its own
terms on March 24, 2014. Moreover, as we concluded above, McCollough was
never promised continued employment as the head boys basketball coach in a
written contract or an implied contract if, in fact, one existed. Thus, the fact
that McCollough was not retained as the coach for the following year was not
the result of interference with a valid and enforceable contract that provided
him with a promise of continued employment. Likewise, McCollough’s
interference claim involving the thirty-one schools at which he applied for a
coaching position fails because McCollough cannot satisfy the element that a
valid and enforceable contract existed between him and any one of the thirty-
one schools. The trial court therefore did not err in granting summary
judgment on McCollough’s claims of tortious interference with a business
relationship and/or contract.
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Negligence
Negligence requires a plaintiff to prove (1) that the defendant owed the plaintiff
a legal duty; (2) that the defendant breached the duty, and (3) that the plaintiff’s
injury was proximately caused by the breach. Jeffrey v. Okolocha, 972 N.E.2d
941, 945 (Ind. Ct. App. 2012). McCollough argues that the trial court erred in
granting summary judgment on his negligence claim, which is based on his
claim that the Defendants failed to adequately investigate the incident.
McCollough’s claim in this regard is based on an assumption-of-duty theory,
which he contends presents a question of fact. Indeed, McCollough argues that
Bryant expressly assumed a duty to investigate by telling McCullough and
members of the administration that he was going to investigate the matter.
McCollough maintains that Bryant breached his duty by failing to interview
any of the witnesses, including coaches and students, present during the
incident at issue. The Defendants maintain that there can be no assumption of
duty under the circumstances because the assumption of duty doctrine applies
only in instances where there is a risk of physical harm.
[26] Our Supreme Court has elaborated on the concept of assumption of duty:
[A] duty may be imposed upon one who by affirmative conduct .
. . assumes to act, even gratuitously, for another to exercise care
and skill in what he has undertaken. It is apparent that the actor
must specifically undertake to perform the task he is charged with
having performed negligently, for without actual assumption of
the undertaking there can be no correlative legal duty to perform
the undertaking carefully.
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South Shore Baseball, LLC v. DeJesus, 11 N.E.3d 903, 910 (Ind. 2014). In
addition, our Supreme Court has adopted the language of The Restatement
(Third) of Torts section 42, which provides:
An actor who undertakes to render services to another and who
knows or should know that the services will reduce the risk of
physical harm to the other has a duty of reasonable care to the
other in conducting the undertaking if:
(a) the failure to exercise such care increases the risk of harm
beyond that which existed without the undertaking, or
(b) the person to whom the services are rendered or another relies
on the actor’s exercising reasonable care in the undertaking.
See id. Where there is no duty, there can be no breach, and thus the party
cannot be found negligent. Yost v. Wabash College, 3 N.E.3d 509, 515 (Ind.
2014).
[27] We have found no cases that support McCollough’s position that the
assumption of duty doctrine applies in the instant case. The alleged assumed
duty was a duty to investigate the incident between McCollough and the player.
Here, the duty to investigate was not tied to an undertaking of services to
reduce the risk of physical harm to McCollough. We decline to extend the
assumption of duty doctrine to situations involving non-physical harm, such as
harm to one’s reputation. The trial court did not err in granting summary
judgment in favor of Bryant on McCollough’s negligence claim.
Due Process
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[28] McCollough argues that “[s]ome of the facts relating to [his] negligence claim
also support his claim under 42 U.S.C. § 1983.” Appellant’s Brief at 28.
Specifically, McCollough claims that he was denied his right to due process as a
result of Bryant’s failure to conduct a reasonable investigation and Bryant’s
failure to accurately report to school administrators regarding the incident.
McCollough, however, does not develop his due process claim with cogent
argument or cite relevant authority. He has therefore waived this issue for our
review. See Loomis v. Ameritech Corp., 764 N.E.2d 658, 668 (Ind. Ct. App. 2002),
trans. denied; Ind. Appellate Rule 46(A)(8)(a).
Cross-Appeal: Defamation
[29] The Defendants cross-appeal and argue that the trial court erred in denying
their motion for summary judgment on McCollough’s claim for defamation. In
order to establish a claim of defamation, a plaintiff must prove (1) a
communication with defamatory imputation, (2) malice, (3) publication, and
(4) damages. Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184, 186 (Ind. 2010).
The first two elements are at issue here.
[30] The Defendants concede that McCollough’s statement was revised without his
knowledge and consent such that the word “allegedly” was removed and that
the revised statement, which was clearly attributed to McCollough, was
published in a press release. Notwithstanding their alteration of McCollough’s
statement, the Defendants argue that McCollough cannot establish a
defamatory imputation or that they acted with malice in publishing the revised
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statement. In response, McCollough argues that the published statement
clearly lowered his reputation in the community and that there is at least a
question of fact as to whether the Defendants acted with malice.
Defamatory Imputation
[31] Defendants argue that the published statement is incapable of defamatory
meaning. A statement is defamatory if it tends “to harm a person’s reputation
by lowering the person in the community’s estimation or deterring third persons
from dealing or associating with the person.” Kelley v. Tanoos, 865 N.E.2d 593,
596 (Ind. 2007). Initially, the determination of whether a communication is
defamatory is a question of law for the court. N. Ind. Pub. Serv. Co. v. Dabagia,
721 N.E.2d 294, 301 (Ind. Ct. App. 1999). The issue becomes a question of fact
only if the statement can reasonably be interpreted as having either a
defamatory or non-defamatory meaning. Id.[32] The Defendants point to McCollough’s admissions in his statement that he
threw a ball toward a player out of frustration, that his behavior was
unacceptable and not the type he wanted to model, and that he wanted to
publicly apologize. They assert that such admissions do more to harm his
reputation in the community than “a misquote that boils down to whether he
had bad aim” and actually hit the player. Appellees’ Brief a 31.
[33] McCollough, on the other hand, asserts that he was adamant about using the
word allegedly in his statement because of the meaning it conveyed. Indeed, as
he has throughout, McCollough denies that he hit a player with a ball and the
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word allegedly conveyed his version of the incident. McCollough argues that
removal of “allegedly” from his statement “conveyed a completely different
meaning to the average person” in that the revised statement read as an
admission by him that he hit a player with a ball. McCollough’s Brief in Response
to Cross-Appeal at 10.
[34] The parties’ arguments demonstrate quite clearly that there is a genuine issue of
material fact as to the defamatory imputation of the altered statement that was
published. The true implication of the statement necessarily requires
consideration of extrinsic evidence by the trier of fact.
[35] The Defendants also argue that the statement cannot be defamatory because it
accurately states what occurred. See Gatto v. St. Richard School, Inc., 774 N.E.2d
914, 924 (Ind. Ct. App. 2002) (holding that truth is a complete defense to
defamation). They point to affidavits of witnesses who stated that the player
toward whom McCollough threw the ball outstretched his arm and the ball
grazed his fingertips and thus, assert there is no dispute that the ball hit the
player, regardless of what McCollough believed. McCollough continues to
deny that the ball hit the player. Having reviewed the record, we find that the
issue is not so much whether the ball hit the player, but the manner in which it
hit the player. Although this distinction is subtle, we conclude that the
accuracy of the statement is an issue for the trier of fact to decide in light of the
circumstances. Use of the word “allegedly” went to the heart of this issue.
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[36] Based on the forgoing, we conclude that the extent, if any, to which the
alteration impacted the defamatory nature of the McCollough’s statement is a
genuine issue of material fact to be decided by the trier of fact.
Malice
[37] Both a public figure and a private individual bringing a defamation action over
a matter of public or general concern must prove by clear and convincing
evidence that the defendant made the alleged defamatory statement with
“actual malice.” Journal–Gazette Co. v. Bandido’s, Inc., 712 N.E.2d 446, 452
(Ind. 1999). The actual malice element required by the United States Supreme
Court and our state courts is not to be confused with the ordinary definition of
“malice” as “an evil intent or motive” arising from spite or ill will. See Masson
v. New Yorker Magazine, Inc., 501 U.S. 496 (1991). Actual malice, as an element
of the tort of defamation, exists when the defendant publishes a defamatory
statement “with knowledge that it was false or with reckless disregard of
whether it was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 279-
80 (1964); Bandido’s, 712 N.E.2d at 456.
[38] The Defendants argue that no reasonable inference can be drawn that Bryant
harbored ill will toward McCollough based on an incident between the two that
occurred ten years earlier when Bryant was a basketball coach under
McCollough or a separate incident involving Bryant and another individual
Bryant never knew was friends with McCollough. McCollough argues that
malice is implicit in the fact that the Defendants knowingly or with reckless
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disregard of whether it was false published McCollough’s statement. Indeed,
the Defendants acknowledge that McCollough’s statement was changed
without his knowledge or permission in order to convey the incident as they
saw fit. The alteration changed the meaning of what McCollough intended to
convey. We find that the designated evidence presents a genuine issue of fact as
to whether the Defendants acted with malice.
Common Interest Privilege
[39] Insofar as they relate to the defamation claim, the Defendants argue that their
communications regarding the incident in question are protected by the
common interest privilege. This privilege applies to “communications made in
good faith on any subject matter in which the party making the communication
has an interest or in reference to which he has a duty, either public or private,
either legal, moral, or social, if made to a person having a corresponding
interest or duty.” Kelly, 865 N.E.2d at 597 (quoting Bals v. Verduzco, 600 N.E.2d
1353, 1356 (Ind. 1992)). The privilege arises out of the necessity for full and
unrestricted communication on matters in which the parties have a common
interest or duty. Chambers v. Am. Trans. Air, Inc., 577 N.E.2d 612, 615 (Ind. Ct.
App. 1991). Application of the privilege is a question of law. Id. If the
privilege applies, it can be disregarded upon a showing by the plaintiff of
“abuse,” which is demonstrated in one of three ways: (1) the communicator
was primarily motivated by ill will; (2) the communication was published
excessively; or (3) the communication was made without belief or grounds for
belief in its truth. Schrader v. Eli Lilly and Co., 639 N.E.2d 258, 262 (Ind. 1994).
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[40] The Defendants argue that they have an interest in communicating with
parents, the local media, and other community members about the conduct of
its coaches. See Gatto v. St. Richard Sch., Inc., 774 N.E.2d 914, 925, 26 (Ind. Ct.
App. 2002) (recognizing a subset of the common interest privilege as “[p]arents
and schools have a ‘corresponding interest’ in the free flow of information
about administrators and faculty members”). In other words, the Defendants
maintain that they have an obligation to tell the community and other
stakeholders about the incident between McCullough and a player. Further,
the Defendants again note their position that the altered statement with the
word “allegedly” removed was an accurate account of what occurred. The
Defendants assert that McCollough has failed to present any evidence from
which an inference of abuse can be made.
[41] In response, McCollough argues that the Defendants cannot assert the common
interest privilege so as to defeat his defamation claim. McCollough first notes
his continued denial that the ball hit the player. Further, McCollough asserts
that the Defendants published a statement that had been revised without
McCollough’s knowledge or permission and that the altered statement
attributed to McCollough an admission to hitting a player with a basketball.
McCollough maintains that the statement had a fundamentally different
meaning without the word “allegedly.” McCollough also argues that the
common interest privilege exists only for the purposes of communicating the
facts to persons who need to know. McCollough asserts that an area-wide press
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release containing the purported admission by him was excessive and published
to more individuals than needed to know.
[42] We begin by noting that the Defendants cited no authority to support expansion
of the common interest privilege to cover communications between schools and
the general public regarding coaching staff. We further disagree with
Defendants’ contention that simply because “high school basketball reaches its
zenith in the Hoosier state,” important stakeholders include the media.
Defendants’ Brief in Reply and in Support of Cross-Appeal at 37. The Defendants
have not demonstrated that in the present case, there is a corresponding interest
or duty between them or the media and general public. In a situation such as
this, the corresponding duty for unrestricted communication would more
appropriately be between the Defendants and the players and their parents
and/or guardians.
[43] This notion carries over to the scope of the publication. We agree with
McCollough that communication with the general public and media outlets was
excessive. The Defendants cannot assert the common interest privilege as a
defense to McCollough’s defamation claim.
[44] In summary, we conclude that the trial court properly granted summary
judgment in favor of the Defendants on McCollough’s claims for IIED, breach
of contract, tortious interference with a business relationship/contract, and
negligence. We also conclude that the trial court properly denied the
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Defendants’ motion for summary judgment with respect to McCollough’s
defamation claim.
[45] Judgment affirmed.
[46] Riley, J. and Bradford, J., concur.
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