Tikidanke Bah v. Mac's Convenience Stores, LLC d/b/a Circle K and David Ruffin ( 2015 )

Jun 30 2015, 8:19 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Swaray Edward Conteh Craig M. Borowski
The Law Office of Swaray Conteh, LLC Rozlyn M. Fulgoni-Britton
Indianapolis, Indiana Faegre Baker Daniels LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tikidanke Bah, June 30, 2015
Appellant-Plaintiff, Court of Appeals Case No.
49A02-1407-CT-512
v. Appeal from the Marion Circuit
Court
Mac’s Convenience Stores, LLC The Honorable Louis Rosenberg,
d/b/a Circle K and David Judge
Ruffin,
Case No. 49C01-1004-CT-16980
Appellees-Defendants
Crone, Judge.
Case Summary
[1] Tikidanke Bah was a store manager for Mac’s Convenience Stores, LLC d/b/a
Circle K (“Circle K”). Bah’s supervisor, David Ruffin, suspected that she had
stolen money from the store, which she denied. Ruffin terminated Bah’s
Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015 Page 1 of 25
employment and contacted the police. The prosecutor charged Bah with theft.
After a trial, the jury found her not guilty.
[2] Bah filed a complaint against Circle K and Ruffin (collectively “Appellees”)
asserting eight counts: false imprisonment, two counts of defamation,
malicious prosecution, negligent supervision, vicarious liability, intentional
infliction of emotional distress, and negligent infliction of emotional distress.
Appellees filed a motion for summary judgment as to all eight counts as well as
a motion to strike certain evidence designated by Bah.
[3] The trial court granted Appellees’ motion to strike and motion for summary
judgment. Bah filed a motion to correct error asserting that the trial court erred
in granting the motion to strike and the motion for summary judgment. The
trial court denied Bah’s motion to correct error.
[4] On appeal, Bah first contends that the trial court erred in granting Appellees’
motion to strike on procedural and substantive grounds. We conclude that Bah
has waived these arguments because she failed to object on either basis and in
fact consented to the procedure.
[5] Bah also contends that the trial court erred in granting Appellees’ summary
judgment motion. Bah has withdrawn her negligent supervision claim, and we
conclude that her negligent infliction of emotional distress claim fails as a
matter of law; therefore, we affirm the trial court’s grant of summary judgment
in Appellees’ favor on those claims. We also affirm the trial court’s grant of
summary judgment on Bah’s malicious prosecution claim. But we conclude
Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015 Page 2 of 25
that Appellees are not entitled to summary judgment on Bah’s remaining claims
based on defenses requiring state-of-mind and credibility determinations.
Therefore, we affirm in part, reverse in part, and remand for further
proceedings.
Facts and Procedural History
[6] The relevant facts most favorable to Bah as the nonmoving party on summary
judgment are as follows. In 2006, Bah started working for Circle K as a cashier.
In 2007, she was promoted to manager of a store at 82nd Street and Allisonville
Road in Indianapolis. Bah reported to Ruffin, the market manager. In 2008,
over Bah’s objection, Ruffin transferred her to a smaller store at 86th Street and
Ditch Road.
[7] In June 2008, Ruffin received a job performance evaluation from Circle K
stating that he needed “significant improvement” in implementing “loss
prevention techniques.” Appellant’s App. at 126. Around the beginning of
September 2008, Ruffin asked Bah if she would resign because he thought that
Circle K was going to close her store. Bah said that she would prefer to assist
other managers with their stores. Ruffin said that Bah “should instead resign
and that the option [she] proposed was not viable.” Id. at 108 (Bah’s affidavit).
[8] At that time, Bah was having problems with some of her employees “error
correcting cigarettes” and, she believed, “stealing money.” Id. Bah informed
Ruffin and asked him to come to her store. Ruffin refused. Since Bah “needed
Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015 Page 3 of 25
immediate action and [Ruffin] was not helping, [she] bypassed him and
contacted [Ruffin’s] boss” on September 12, 2008. Id.
[9] Ruffin received weekly sales reports from the stores that he managed and
reviewed them for financial “irregularities that required investigation.”
Appellees’ App. at 4 (Ruffin’s affidavit). In mid-September 2008, Ruffin
“noticed a negative number for grocery/C-store sales” in a report from Bah’s
store, which was “very unusual.” Id. He also “found that refunds totaling
$1,500 were issued” at Bah’s store on September 12. Id.
[10] On September 18, Ruffin went to Bah’s store to investigate, but she was not
there. He looked for various “store financial reports” for September 12 but was
unable to locate them, which he found “odd.” Id. 1 Ruffin used the store’s cash
register to print the cashier’s report from September 12. “Each store employee
who has access to the cash register and store funds has a unique cashier number
that they [sic] are not to share with others.” Id. at 5. Sometimes, however, Bah
“would give her code to the cashiers” to allow them to unlock the register if she
was unavailable. Appellant’s App. at 109 (Bah’s affidavit). Ruffin also “had
the codes for everyone in the store.” Id. The cashier’s report indicated that
Bah’s
cashier number was used to enter a total of $1,500.00 in refunds for
non-tax grocery items on September 12, 2008, between 5:53 a.m. and
1
According to Ruffin, Bah said that she had “accidently [sic] thrown all of these reports away while
cleaning.” Appellees’ App. at 6 (Ruffin’s affidavit). According to Bah, this claim is “completely false.”
Appellant’s App. at 109 (Bah’s affidavit).
Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015 Page 4 of 25
6:07 a.m., and [Bah] was one of the employees on duty at this time.
There was no grocery item for sale in the store at the time that cost
$1,500.00. The majority of the items for sale in the store are grocery
items, drinks, food items, and other miscellaneous goods that are far
less expensive.
Appellees’ App. at 5 (Ruffin’s affidavit).
[11] The store’s cash register never had $1500 in it. Id. at 22 (Bah’s deposition).
Refunding that amount would require opening the safe, and Bah was the only
store-level employee with a key to the safe. Id. Ruffin also had a key. Id.
Ruffin reviewed the store’s bank deposit slip from September 12, which was for
$2047. According to Ruffin, this was “a much smaller amount than the store’s
average deposits.” Id. at 5 (Ruffin’s affidavit). According to Bah, this amount
was “normal” for the store. Appellant’s App. at 109 (Bah’s affidavit). Notably,
the designated evidence does not indicate that Ruffin (or anyone else)
determined that $1500 had actually been taken from the store’s safe.
[12] Ruffin also reviewed “recorded footage from security video cameras that were
positioned around the store.” Appellees’ App. at 4. He discovered a ten-
minute period “when the camera was not recording,” due to either a power
surge or someone pressing “the camera’s reset button, which is located in the
store office.” Id. at 5. “The camera footage showed that [Bah] had entered the
office immediately before the camera stopped recording.” Id. 2
2
Bah mentioned this footage in her deposition. Appellees’ App. at 21. Neither Ruffin’s affidavit nor Bah’s
deposition specifies the date of the footage, but we presume from the context that it was recorded on
September 12.
Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015 Page 5 of 25
[13] Ruffin met with Bah and asked her “whether she knew why the grocery/C-store
sales results were negative, and she said no.” Id. at 6. He also asked her “about
the $1,500.00 in refunds that were done using her cashier number, and she
denied any involvement in the refunds.” Id. Ruffin terminated Bah’s
employment.
[14] “It is Circle K’s practice when discovering suspected theft of this level from its
stores to report the suspected theft to the police.” Id. Ruffin contacted the
Indianapolis Metropolitan Police Department (“IMPD”) and told them what
he had found during his investigation. Ruffin was later “contacted by IMPD
and the prosecutor and asked for additional information.” Id. He “cooperated
with the IMPD and prosecutor’s office and answered their questions and
requests for information[.]” Id.
[15] The prosecutor charged Bah with theft. She received a warrant in the mail
instructing her to report to the City-County Building for a mug shot and
fingerprinting, which she did. She was not arrested or jailed pending trial. In
March 2010, a jury found her not guilty of theft.
[16] In April 2010, Bah filed a complaint against Appellees asserting eight counts:
false imprisonment, two counts of defamation (slander per se and slander per
Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015 Page 6 of 25
quod), 3 malicious prosecution, negligent supervision, vicarious
liability/respondeat superior, intentional infliction of emotional distress, and
negligent infliction of emotional distress. Bah’s complaint contains the
following allegations:
8. Slightly more than two (2) months after Plaintiff began managing
the Ditch Road Store, [Ruffin] falsely accused Plaintiff of stealing
$1500 from the Ditch Road Store sales for September 11, 2008. Ruffin
informed individuals with the corporate office of Circle K and others
not associated with management of Circle K and others not associated
with Circle K that Plaintiff stole money from the company.
9. On September 18, 2008, Ruffin reported to Officer Raymond
Robinson, Jr. of the Indianapolis Metropolitan Police Department
(IMPD) that on September 12, 2008, Plaintiff turned off an in-store
security camera for approximately thirteen (13) minutes and stole
money from the store. Around the same [sic] Ruffin also told
detective Janice Aikman of IMPD that Plaintiff rebooted the security
camera system and logged into the registers and performed three (3)
refunds totaling $1500 and then took the money from the company
safe for personal use. Ruffin further falsely insinuated to others,
including the Marion County Prosecutor and his deputies that Plaintiff
took the money to spend on a 7-day vacation.
Appellant’s App. at 9-10.
3
“Defamation is that which tends to injure reputation or to diminish esteem, respect, good will, or
confidence in the plaintiff, or to excite derogatory feelings or opinions about the plaintiff.” Davidson v. Perron,
716 N.E.2d 29, 37 (Ind. Ct. App. 1999), trans. denied (2000). “To establish defamation, the plaintiff must
prove the following elements: (1) a communication with defamatory imputation, (2) malice, (3) publication,
and (4) damages.” Id. An action for defamation per se “arises when the language of a statement, without
reference to extrinsic evidence, constitutes an imputation of (1) criminal conduct, (2) a loathsome disease, (3)
misconduct in a person’s trade, profession, office, or occupation, or (4) sexual misconduct.” Dugan v. Mittal
Steel USA, Inc., 929 N.E.2d 184, 186 (Ind. 2010). “In contrast, if the words used are not defamatory in
themselves, but become so only when understood in the context of extrinsic evidence, they are considered
defamatory per quod.” Id.
Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015 Page 7 of 25
[17] Appellees filed a motion for summary judgment as to all eight counts in which
they set forth numerous “undisputed material facts,” including details from
Ruffin’s affidavit regarding his investigation of the “suspected theft” and that he
reported his findings to IMPD. Id. at 18, 20. Appellees also stated,
The basis for Bah’s false imprisonment, malicious prosecution,
intentional infliction of emotional distress, negligence, and, in part
defamation claims is Ruffin’s communications with IMPD regarding
the $1,500 loss at Bah’s store. However, a person’s communications
with police in reporting a suspected crime are qualifiedly privileged so
long as the person has a belief or grounds for belief in the truth of his
report. Bah has no evidence to suggest that a police report was made
without belief in its truth, and Ruffin’s testimony proves his well-
founded belief in the truth of his report and that the report was
consistent with Circle K policy and practice.
Id. at 21-22.
[18] In her response to Appellees’ summary judgment motion, Bah stated,
On September 18, 2008, Ruffin as agent of Circle K contacted IMPD
and reported that on September 12, 2008, Bah stole the sum of $1500
from the store she was managing and thereafter sought Bah’s
prosecution for theft. Before contacting the police, Ruffin spread this
lie to other Circle K employees including one Rodney Blanton, Steve
Ryan, Alhassan Seick, Brenda Anderson and Sidi Ndiaye. Aff[idavit]
of Bah, ¶ 7. Defendants’ motion focused entirely on Ruffin’s
publications to the police. This response will therefore not address
publications made to others who are not law enforcement.
Id. at 43. In alleging what Ruffin told IMPD, Bah relied on a police report and
the probable cause affidavit filed in her criminal case. In their reply to Bah’s
response, Appellees argued, “To the extent [Bah] tries to avoid summary
judgment based on [communications to persons outside IMPD], the Court
should disregard this attempt because the argument is entirely undeveloped and
Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015 Page 8 of 25
the alleged communications are not supported by admissible evidence.” Id. at
66.
[19] The trial court held a hearing on Appellees’ summary judgment motion. At the
beginning of the hearing, the court told the parties, “It would be helpful to me if
you could file a Motion to Strike that would cover all of the […] items of
designated evidence that you think are […] of questionable admissibility[.]” Tr.
at 4. 4 At the conclusion of the hearing, the trial court said that it would accept
responses to the motions to strike. Id. at 45. Bah’s counsel stated that he had
“[n]o problem” with this arrangement. Id.
[20] Appellees filed a motion to strike certain evidence designated by Bah, including
paragraph 7 of her affidavit, the police report, and the probable cause affidavit,
based on inadmissible hearsay and/or lack of personal knowledge. Without
paragraph 7 of Bah’s affidavit, there is no designated evidence establishing that
Ruffin made allegedly defamatory statements to anyone other than law
enforcement authorities. Bah did not respond or object to Appellees’ motion
and did not file her own motion.
[21] In June 2014, the trial court issued an order granting Appellees’ motion to strike
that reads in relevant part:
4
Bah has included a portion of the transcript in her appendix in violation of Indiana Appellate Rule 50(F),
which states, “Because the Transcript is transmitted to the Court on Appeal pursuant to Rule 12(B), parties
should not reproduce any portion of the Transcript in the Appendix.”
Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015 Page 9 of 25
The following submissions in [Bah’s] Designation of Evidence in
Opposition to [Appellees’] Motion for Summary Judgment and all
argument [Bah] has made in reliance thereon are stricken from the
record: (1) all hearsay, speculation, statements contradicting prior
sworn deposition testimony, statements lacking personal knowledge,
and other inadmissible portions of Exhibit 1 [Bah’s affidavit], (2)
Exhibit 7 [police report], and (3) Exhibit 8 [probable cause affidavit].
Appellant’s App. at 78. The trial court also issued an order granting Appellees’
summary judgment motion.
[22] Bah filed a motion to correct error asserting that the trial court erred in granting
Appellees’ motion to strike on procedural and substantive grounds and also
erred in granting Appellees’ summary judgment motion. In July 2014, the trial
court issued an order denying Bah’s motion to correct error that reads in
pertinent part:
At oral argument, the Court requested Motions to Strike from all
parties so evidentiary issues could be further explored and briefed.
The Court has discretion to invite further briefing and properly
exercised that discretion here.
…. [Bah] did not file her own Motion to Strike. [Bah] also did not
respond to [Appellees’] Motion to Strike, thus waiving the substantive
and procedural arguments she now attempts to make in her Motion to
Correct Errors relating to [Appellees’] Motion to Strike. Moreover,
the Court’s order granting [Appellees’] unopposed Motion to Strike
was procedurally and substantively correct for all the reasons set forth
in [Appellees’] Motion to Strike and Memorandum in Support of the
same. This Court’s Order … granting [Appellees’] Motion to Strike
was not in error.
Further, the Court’s order granting [Appellees’] Motion for Summary
Judgment was not in error. Even when considering inadmissible
evidence submitted by [Bah], [Appellees’] Motion for Summary
Judgment was properly granted for all the reasons set forth in
Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015 Page 10 of 25
[Appellees’] Motion for Summary Judgment, Brief in Support of
Motion for Summary Judgment, and Reply in Support of Motion for
Summary Judgment. There is no basis to disturb the Court’s entry of
summary judgment in favor of [Appellees].
Id. at 6-7. Bah now appeals.
Discussion and Decision
Section 1 – Bah has waived her arguments regarding
Appellees’ motion to strike.
[23] Bah first contends that the trial court erred in granting Appellees’ motion to
strike on both procedural and substantive grounds. As did the trial court, we
conclude that Bah has waived these arguments because she failed to object on
either basis, and in fact she specifically consented to the procedure. See Yater v.
Hancock Cnty. Bd. of Health, 677 N.E.2d 526, 530 (Ind. Ct. App. 1997) (finding
issue waived where party raised it for first time in motion to correct error); see
also Bunting v. State, 854 N.E.2d 921, 924 (Ind. Ct. App. 2006) (“A party may
not sit idly by, permit the court to act in a claimed erroneous manner, and
subsequently attempt to take advantage of the alleged error.”), trans. denied;
Olcott Int’l & Co. v. Micro Data Base Sys., Inc., 793 N.E.2d 1063, 1077 (Ind. Ct.
App. 2003) (“A party cannot invite error and then request relief on appeal based
upon that ground; such an error cannot be reviewed by this court.”), trans.
denied.
Section 2 – Summary Judgment/Standard of Review
[24] Bah also contends that the trial court erred in granting Appellees’ summary
judgment motion. We review such rulings de novo. Prancik v. Oak Hill United
Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015 Page 11 of 25
Sch. Corp., 997 N.E.2d 401, 403 (Ind. Ct. App. 2013), trans. denied (2014).
Pursuant to Indiana Trial Rule 56(C), a summary judgment movant must make
a prima facie showing that there are no genuine issues of material fact and that
it is entitled to judgment as a matter of law. Id. If the movant satisfies this
burden, “the nonmoving party may not rest on its pleadings, but must designate
specific facts demonstrating the existence of a genuine issue for trial.” Morris v.
Crain, 969 N.E.2d 119, 124 (Ind. Ct. App. 2012). “A ‘genuine issue’ is one
upon which the parties proffer differing accounts of the truth, or as to which
conflicting inferences may be drawn from the parties’ consistent accounts; a
‘material fact’ is one that affects the outcome of the case.” Lyons v. Richmond
Cmty. Sch. Corp., 19 N.E.3d 254, 259 (Ind. 2014). “We must construe all
evidence and resolve all doubts in favor of the non-moving party, so as to avoid
improperly denying that party’s day in court.” Prancik, 997 N.E.2d at 401.
Summary judgment is not a summary trial, and it is inappropriate merely
because the nonmoving party appears unlikely to prevail at trial. Hughley v.
State, 15 N.E.3d 1000, 1003-04 (Ind. 2014). “The party that lost in the trial
court has the burden of persuading the appellate court that the trial court erred.
Our review of a summary judgment motion is limited to those materials
designated to the trial court.” City of Bloomington v. Underwood, 995 N.E.2d 640,
644 (Ind. Ct. App. 2013) (citation omitted), trans. denied (2014). “An appellate
court may affirm summary judgment if it is proper on any basis shown in the
record.” Weist v. Dawn, 2 N.E.3d 65, 67 (Ind. Ct. App. 2014).
Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015 Page 12 of 25
Section 2.1 – Bah has withdrawn her negligent supervision
claim, and her negligent infliction of emotional distress claim
fails as a matter of law.
[25] At the outset, we note that Bah has withdrawn her claim for negligent
supervision. Appellant’s Br. at 31. And we also conclude that her claim for
negligent infliction of emotional distress fails as a matter of law because she has
never alleged, let alone established, a genuine issue of material fact regarding,
the “direct physical impact” required by applicable Indiana precedent.
Lachenman v. Stice, 838 N.E.2d 451, 460 (Ind. Ct. App. 2005), trans. denied
(2006). Therefore, we affirm the trial court’s grant of summary judgment in
Appellees’ favor on those claims.
Section 2.2 – Appellees are entitled to summary judgment on
Bah’s malicious prosecution claim.
[26] In a malicious prosecution claim, the plaintiff must establish that “(1) the
defendant … instituted or caused to be instituted an action against the plaintiff
…; (2) the defendant acted with malice in doing so; (3) the defendant had no
probable cause to institute the action; and (4) the original action was terminated
in the plaintiff’s favor.” City of New Haven v. Reichhart, 748 N.E.2d 374, 378
(Ind. 2001). Here, Appellees did not institute or cause to be instituted the
criminal action against Bah; the prosecutor did. See Conwell v. Beatty, 667
N.E.2d 768, 778 (Ind. Ct. App. 1996) (“[N]one of the Big R defendants
instituted or caused to be instituted a prosecution against Conwell [for allegedly
switching a price tag on an item that he purchased at a Big R store]. The
Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015 Page 13 of 25
prosecution was instituted by the prosecutor who made an independent
determination of whether to pursue criminal charges after reviewing all of the
information obtained by the Sheriff's Department’s independent
investigation.”). Therefore, we affirm the trial court’s grant of summary
judgment in Appellees’ favor on Bah’s malicious prosecution claim.
Section 2.3 – Appellees are not entitled to summary judgment
on Bah’s remaining claims based on defenses requiring
state-of-mind and credibility determinations.
[27] With respect to Bah’s remaining claims, Appellees make the following
argument:
Bah bases her entire case on alleged communications Ruffin made to
IMPD[5] regarding the $1,500.00 in refunds that were issued in Bah’s
store with Bah’s cashier code while Bah was working. But these
communications are qualifiedly privileged, and Bah provides no
evidence that any circumstances exist to overcome the privilege. For
this reason, Bah’s false imprisonment, malicious prosecution,
intentional infliction of emotional distress, negligence [i.e., vicarious
liability/respondeat superior], and defamation claims fail as a matter
of law.
Appellees’ Br. at 12.
[28] Our supreme court has explained that
[a] qualified privilege applies to communications made in good faith
on any subject matter in which the party making the communication
5
As indicated above, without paragraph 7 of Bah’s affidavit, which was stricken by the trial court, there is no
designated evidence establishing that Ruffin made allegedly defamatory statements to anyone other than law
enforcement authorities. Consequently, we limit our discussion to Ruffin’s statements to IMPD.
Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015 Page 14 of 25
has an interest or in reference to which he had a duty, either public or
private, either legal, moral, or social, if made to a person having a
corresponding interest or duty. As a defense to defamation, the
qualified privilege operates not to change the actionable quality of the
words published, but merely to rebut the inference of malice that is
otherwise imputed. To merit its protection, the burden is upon the
defendant in the first instance to establish the existence of a privileged
occasion for the publication, by proof of a recognized public or private
interest which would justify the utterance of the words. Then the
plaintiff has the burden of overcoming that privilege by showing that it
has been abused. When speaking of abuse, the essence of the concept
is not the speaker’s spite but his abuse of the privileged occasion by
going beyond the scope of the purposes for which privilege exists. And
unless only one conclusion can be drawn from the evidence, the
question of whether the privilege has been abused is for the jury.
[29] Williams v. Tharp, 914 N.E.2d 756, 762 (Ind. 2009) (citations, quotation marks,
and alterations omitted).
[30] As in Williams, the privileged occasion implicated in this case relates to the
public interest in encouraging private citizens to report crime. Id. “The chief
benefit is investigation of suspected criminal activity.” Id. “[A] reporting
citizen may, out of an excess of caution or even for a nefarious purpose, make
false accusations, and our citizens’ equally valid interest in having reputations
untarnished by false imputations of criminal misconduct has been a cornerstone
of defamation law for hundreds of years.” Id. at 763.
Because of the compelling public interest in encouraging citizens to
report suspected wrongdoing, however, the law recognizes a limited
defense to civil liability premised on erroneous reports of criminal
conduct to police: “[I]t is well established that in Indiana,
communications made to law enforcement to report criminal activity
are qualifiedly privileged.” Kelley [v. Tanoos, 865 N.E.2d 593, 600
(Ind. 2007)].… But the privilege is not without limits: a statement
“may lose its privileged character upon a showing of abuse wherein:
Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015 Page 15 of 25
(1) the communicator was primarily motivated by ill will in making
the statement; (2) there was excessive publication of the defamatory
statements; or (3) the statement was made without belief or grounds
for belief in its truth.” Bals [v. Verduzco, 600 N.E.2d 1353, 1356 (Ind.
1992)].
Id. at 763-64. The qualified privilege defense to defamation has also been
applied to claims of false imprisonment, negligence, and intentional infliction of
emotional distress. Brown v. Indianapolis Housing Agency, 971 N.E.2d 181, 186
(Ind. Ct. App. 2012).
[31] Bah asserts that Ruffin was primarily motivated by ill will in making his
statements to IMPD and that he “strung a web of lies to implicate [her] in
criminal conduct.” Appellant’s Br. at 19. Appellees contend that “Bah’s beliefs
are not factual support appropriate in defending summary judgment, and they
all must be disregarded.” Appellees’ Br. at 14. It is well settled, however, that
“[s]ummary judgment must be denied if the resolution hinges upon state of
mind, credibility of the witnesses, or the weight of the testimony.” Nelson v.
Jimison, 634 N.E.2d 509, 512 (Ind. Ct. App. 1994).
[32] Bah and Ruffin had a contentious relationship; he transferred her to a smaller
store over her objection, and she refused his request to resign. On September
12, 2008, shortly after Ruffin received a negative evaluation for loss prevention
techniques, Bah went over his head to report her concerns that her employees
were stealing money. Bah’s employees and Ruffin had Bah’s cashier number,
which was used on September 12, 2008, to enter the $1500 in refunds that
formed the basis of the theft charge against Bah. The store’s cash register never
had $1500 in it, and only Bah and Ruffin had keys to the safe. According to
Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015 Page 16 of 25
Ruffin, that day’s bank deposit slip was for a “much smaller” than average
amount. Appellees’ App. at 5. According to Bah, the amount was “normal.”
Appellant’s App. at 109. No evidence has been designated that Ruffin (or
anyone else) determined that $1500 was actually stolen from the safe, and Bah
was ultimately acquitted of the theft charge. 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. In other words, we conclude
that Appellees are not entitled to summary judgment on Bah’s remaining claims
based on the qualified privilege defense. 6
[33] For the same reason, we reject Appellees’ argument that they are entitled to
summary judgment on Bah’s false imprisonment claim based on the judicial
determination that probable cause existed to charge her with theft. See Street v.
Shoe Carnival, Inc., 660 N.E.2d 1054, 1057-58 (Ind. Ct. App. 1996) (probable
cause determination in criminal proceeding may constitute prima facie evidence
of probable cause in subsequent action for false imprisonment, but “prima facie
case may be rebutted by evidence that shows the finding of probable cause was
6
Appellees assert that to evaluate Bah’s claim that Ruffin was untruthful in reporting her alleged theft to
IMPD, we “must determine what communications [he] made that are supported by designated evidence,”
and the only evidence regarding what he told IMPD was properly stricken by the trial court. Appellees’ Br.
at 14. But Ruffin’s affidavit, which was not stricken by the trial court, spells out the substance of what he told
IMPD in reporting Bah’s alleged theft.
Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015 Page 17 of 25
induced by false testimony or fraud”; holding that genuine issue of material fact
existed regarding whether defendants had probable cause to believe that
plaintiffs committed or attempted to commit theft) (emphasis added). We
likewise reject Appellees’ argument that they are entitled to summary judgment
on Bah’s false imprisonment claim based on statutory immunity for store
owners and agents. Cf. Ind. Code § 35-33-6-2(a) (“An owner or agent of a store
who has probable cause to believe that a theft has occurred or is occurring on or
about the store and who has probable cause to believe that a specific person has
committed or is committing the theft … may … inform the appropriate law
enforcement officers[.]”); Ind. Code § 35-33-6-4 (“A civil or criminal action
against … an owner or agent of a store … may not be based on a detention that
was lawful under section 2 … of this chapter. However, the defendant has the
burden of proof that the defendant acted with probable cause under section 2 … of this
chapter.”) (emphasis added). 7 In sum, Bah’s false imprisonment claim hinges on
a credibility determination, and therefore Appellees are not entitled to summary
judgment on that claim. Nelson, 634 N.E.2d at 512.
[34] Finally, we address the parties’ arguments regarding Bah’s claim for intentional
infliction of emotional distress (“IIED”). The elements of that tort are that the
defendant “(1) engages in extreme and outrageous conduct (2) which
7
All that being said, we also reject Bah’s suggestion that her acquittal conclusively establishes that no
probable cause existed to charge her with theft. See Wells v. Bernitt, 936 N.E.2d 1242, 1253 (Ind. Ct. App.
2010) (“[T]he amount of evidence necessary to meet the probable cause requirement … is less than the level
of proof necessary to establish guilt beyond a reasonable doubt.”), trans. denied (2011).
Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015 Page 18 of 25
intentionally or recklessly (3) causes (4) severe emotional distress to another.”
Curry v. Whitaker, 943 N.E.2d 354, 361 (Ind. Ct. App. 2011). “It is the intent to
harm the plaintiff emotionally which constitutes the basis for the tort of
[IIED].” Lachenman, 838 N.E.2d at 457. “The requirements to prove this tort
are ‘rigorous.’” Curry, 943 N.E.2d at 361 (quoting Cullison v. Medley, 570
N.E.2d 27, 31 (Ind. 1991)).
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 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!”
Bradley v. Hall, 720 N.E.2d 747, 753 (Ind. Ct. App. 1999) (quoting Restatement
(Second) of Torts § 46 cmt. d (1965)). “What constitutes ‘extreme and
outrageous’ conduct depends, in part, upon prevailing cultural norms and
values.” Id. “IIED is found where conduct exceeds all bounds typically
tolerated by a decent society and causes mental distress of a very serious kind.
In the appropriate case, the question can be decided as a matter of law.” Curry,
943 N.E.2d at 361 (citation omitted).
[35] Appellees first assert that “[c]onducting an internal investigation, reporting
possible theft to the police, and cooperating with police and prosecutors is not
Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015 Page 19 of 25
extreme and outrageous conduct.” Appellees’ Br. at 19. But this argument
presupposes that Ruffin had belief or grounds for belief in the truth of his
statements to IMPD, and we have already held that this is a matter for jury
determination. Nelson, 634 N.E.2d at 512. 8
[36] Next, Appellees argue that “Bah has not addressed what evidence supports a
finding that Ruffin acted with intent to cause her severe emotional distress
when he reported his investigation findings to police.” Appellees’ Br. at 20.
We have already held that Ruffin’s state of mind is also a matter for jury
determination. Nelson, 634 N.E.2d at 512.
[37] Appellees further contend that
Bah also has no meaningful evidence to show that she actually
sustained severe emotional distress. Besides her conclusory testimony
that the subject of this lawsuit affected her “very bad” and “really
affected” her, Bah has no evidence of severe emotional distress. In
fact, Bah continued to work a second job she held while employed
with Circle K. Moreover, Bah admits she has not sought any kind of
professional treatment for alleged emotional distress.
Appellees’ Br. at 21 (citation to appendix omitted).
[38] The record shows that Appellees have substantially minimized the alleged
severity of Bah’s emotional distress. In her affidavit, she averred the following:
8
We note that Appellees do not argue that making a false police report can never be considered extreme or
outrageous conduct as a matter of law. Cf. Williams v. Tharp, 889 N.E.2d 870, 880 (Ind. Ct. App. 2008)
(“declin[ing] to hold as a matter of law that the filing of a false report can never amount to extreme or
outrageous conduct”) (citing Gilman v. Gilman, 736 A.2d 199 (Conn. Super. Ct. 1999), and Adams v. Carlisle,
630 S.E.2d 529 (Ga. Ct. App. 2006), cert. denied), trans. granted on other grounds, 914 N.E.2d 756 (Ind. 2009).
Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015 Page 20 of 25
2. I am a native and citizen of the Republic of Sierra Leone, West
Africa. I am the mother of three children. I entered the United States
as derivative beneficiary of my ex-husband who was accorded asylum
status by the Government of the United States.
….
4. At the time of my arrest in 2008, I was the sole provider for my
children.
….
6. At the time I was arrested, I was not a permanent resident of the
United States although I was lawfully present in the country and was
lawfully employed. In fact, I just now attended an interview to
become a permanent resident. My status here was precarious at the
time because I was here on the status of my ex-husband as a person
granted asylum. I talked to other foreign nationals and immigration
attorneys regarding my status after my arrest. I learned that a
conviction for any criminal act would adversely impact my ability to
become a permanent resident. I found out that if I am convicted for
theft, I might be deported and that I will remain in jail until I am
deported. I was very scared and terrified to know this.… I totally
freaked out when I was falsely accused of stealing $1500 from Circle
K.
7. I spent endless nights thinking about the impact of such allegations
on my family and[] my children in particular. I was extremely
concerned about the possibility of deportation and how that would
affect my children because at the time I was solely responsible for my
children. Although I did not consult with psychologist or
psychiatrist,[9] I secretly battled depression and mental anguish. I was
unable to disclose my arrest and the reason for the arrest to my
children. It was only when the trial was close that I told my children
when they observed serious changes in my attitudes toward them. My
9
In her deposition, Bah testified that she did not seek treatment from doctors “because I don’t have money to
pay that.” Appellees’ App. at 24.
Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015 Page 21 of 25
social life diminished considerably while the criminal case against me
was pending. I suffered in silence for nearly two (2) years until my
acquittal on March 9, 2010.… When the case was given to the jury we
waited outside the court for a verdict. Waiting for that verdict was
suffocating. I felt like dying.
Appellant’s App. at 105-06.
[39] At the very least, Bah’s affidavit raises a genuine issue of material fact regarding
whether Appellees’ conduct caused her severe emotional distress. See Hughley v.
State, 15 N.E.3d 1000, 1004 (Ind. 2014) (holding that defendant’s “self-serving”
affidavit was sufficient “to raise a factual issue to be resolved at trial”).
Therefore, we reverse and remand for further proceedings on her IIED claim
and the foregoing claims already discussed.
Conclusion
[40] We affirm the trial court’s grant of summary judgment in Appellees’ favor on
Bah’s claims for negligent supervision, negligent infliction of emotional distress,
and malicious prosecution. As to the remaining claims, we reverse and remand
for further proceedings.
[41] Affirmed in part, reversed in part, and remanded.
Pyle, J., concurs.
Brown, J., dissents with opinion.
Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015 Page 22 of 25
IN THE
COURT OF APPEALS OF INDIANA
Tikidanke Bah,
Appellant-Plaintiff,
v.
Mac’s Convenience Stores, LLC
d/b/a Circle K and David
Ruffin,
Appellees-Defendants.
Brown, Judge, concurring in part and dissenting in part.
[42] I concur with the majority as to its conclusions in Sections 1, 2.1, and 2.2, but
respectfully dissent from its conclusion that the Appellees are not entitled to
summary judgment on Bah’s remaining claims based on the qualified privilege
defense.
[43] If Circle K and Ruffin have demonstrated the absence of any genuine issue of
fact as to a determinative issue, they are entitled to summary judgment unless
Bah comes forward with contrary evidence showing a triable issue for the trier
Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015 Page 23 of 25
of fact. See Williams v. Tharp, 914 N.E.2d 756, 761-762 (Ind. 2009). “[T]he 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.’” Id. at 762 (quoting
Rosi v. Bus. Furniture Corp., 615 N.E.2d 431, 434 (Ind. 1993)).
[44] The designated evidence included Ruffin’s affidavit in which he asserted:
It is Circle K’s practice when discovering suspected theft of this level
from its stores to report the suspected theft to the police. Consistent
with that practice and after consulting my supervision [sic], I contacted
the Indianapolis Metropolitan Police Department (“IMPD”) and
provided truthful information regarding the events and what I had
found in the course of my investigation to that point. After that initial
report, I was contacted by IMPD and the prosecutor and asked for
additional information. In response, I cooperated with the IMPD and
prosecutor’s office and answered their questions and requests for
information with entirely truthful information to the best of my
knowledge. I did not take any action involving Ms. Bah with an intent
to harm her or with motivations of ill will, and I have never shared
false information about Ms. Bah with anyone to my knowledge.
Appellee’s Appendix at 6.
[45] Bah cites to her affidavit and asserts that Ruffin informed other Circle K
employees about the “lie.” Appellant’s Brief at 14. However, the Appellees
specifically requested that the trial court strike the statement that Ruffin spread
the false allegations to others, and the trial court granted the Appellees’ motion.
(Appellee’s Appendix at 30) Bah does not point to any designated evidence
which had not been stricken to demonstrate what statements she asserts were
Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015 Page 24 of 25
improperly made by Ruffin to the police. Therefore, based upon the designated
evidence, I would conclude that the qualified privilege applies and would affirm
on all issues. See Williams, 914 N.E.2d at 769 (finding that whether the
defendant’s misperception was speculative, negligent, or even reckless, it was
not so obviously mistaken to permit a reasonable inference that he lied, and
holding that the trial court did not err in finding a qualified privilege was
established as a matter of law and thereby precluding the plaintiffs’ claim for
defamation); Kelley v. Tanoos, 865 N.E.2d 593, 602 (Ind. 2007) (holding that
summary judgment in favor of the defendant was appropriate because the
plaintiff failed to designate evidence that demonstrates that the defendant
abused the qualified privilege).
[46] For the foregoing reasons, I respectfully dissent in part and would affirm the
trial court in all respects.
Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015 Page 25 of 25