ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE ATTORNEYS FOR AMICI CURIAE
John R. Price Robert B. Clemens Linda J. Cooley
Indianapolis, Indiana George T. Patton Indiana Association of School Principals
Bryan H. Babb
Indianapolis, Indiana David R. Day
Indiana Association of Public School
Superintendents
Joseph K. Etling
Indiana Urban Schools Association and
Vigo County Administrators Association
A. Howard Williams
Indiana Sheriffs Association, and the Vigo
County Sheriff’s Department
Kendall Boyd
City of Terre Haute (Police Dept.), and the
City of Terre Haute (Mayor’s Office)
C. Russell Cox
Indiana Association of Chiefs of Police, Inc.
Bruce D. Aukerman
National Association of School Resource
Officers, and the International Union of
Police Associations
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 84S01-0605-CV-195
PAUL JOSEPH “JAY” KELLEY, III,
Appellant (Plaintiff below),
v.
DANIEL T. TANOOS,
Appellee (Defendant below).
_________________________________
Appeal from the Vigo Superior Court, No. 84D03-0212-CT-9399
The Honorable David R. Bolk, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 84A01-0410-CV-461
_________________________________
May 2, 2007
Sullivan, Justice.
Daniel Tanoos believed that Paul Kelley had been the unidentified gunman who had fired
a shotgun at him, though Kelley was never charged. While the police were investigating the in-
cident, and with their knowledge and cooperation, Tanoos made accusatory statements about
Kelley in a private conversation with the head of the school where Kelley worked. When Kelley
learned of the statements, he sued Tanoos for defamation. We hold that Tanoos is protected
from liability for defamation in these circumstances because the statements were made to assist
law enforcement investigate criminal activity.
Background
On January 17, 2001, a bullet grazed the head of Daniel T. Tanoos, Superintendent of the
Vigo County School Corporation (“School Corporation”), when someone fired a shotgun at him
from outside his house. The police identified Paul “Jay” Kelley as a suspect because of his
known animosity toward Tanoos. At the time of the incident, Kelley was Supervisor of Safety
and Security at the Gibault School, a juvenile residential treatment facility also in Vigo County.
James Sinclair was the Executive Director and Chief Executive Officer of Gibault, Inc.
The day after the shooting, there were rumors on the Gibault campus that Kelley was a
suspect. The police came to Gibault School and interviewed some of Kelley’s fellow employees.
When police contacted Gibault a second time and indicated that they would like to speak to some
Gibault employees again, they were told they should interview the employees on their own time
rather than while the employees were working. This led to a rumor that Gibault was not cooper-
ating with the police investigation and strained relations between the School Corporation and
Gibault School. Concerned, Sinclair sent Tanoos a letter suggesting they meet.
2
Tanoos called the police, who expressed interest in the meeting because Kelley would be
a topic of discussion. The police gave Tanoos questions to ask and a wire to wear so that the
conversation could be recorded. At the meeting, which occurred on December 21, 2001, Tanoos
attempted to coax information from Sinclair. In particular, Tanoos made the following state-
ments about Kelley:
“I’m as convinced as the police are that Jay Kelley did it.”
“Well, the issue with the polygraph is that he took it four times and failed it three
times.”
“It’s all circumstantial, but it all leads back to him.”
“He—I could throw you on to some other people the police looked at through dif-
ferent things and all—all of a sudden all the things they were hearing—everything
just started pointing to him.”
Kelley was never charged with any crime arising from the shooting incident. On Decem-
ber 10, 2002, Kelley filed a lawsuit for defamation against Tanoos. He subsequently learned of
the taped conversation during the trial of one Marty Ketner, who was identified as a suspect in
February 2002, tried, and acquitted. The parties filed cross-motions for summary judgment. The
trial court, without findings of fact or conclusions of law, granted Tanoos’s motion and denied
Kelley’s.
The Court of Appeals reversed and remanded, holding that genuine issues of material fact
existed regarding Kelley’s defamation claim and that Tanoos’s statements were not covered by a
qualified privilege. Kelley v. Tanoos, 840 N.E.2d 342 (Ind. Ct. App. 2005). Tanoos, supported
by law enforcement and several amici, sought, and we granted, transfer. Kelley v. Tanoos, 855
N.E.2d 1009 (Ind. 2006) (table).
3
Discussion
I
A defamatory communication is one that “tend[s] to harm a person’s reputation by lower-
ing the person in the community’s estimation or deterring third persons from dealing or associat-
ing with the person.” Rambo v. Cohen, 587 N.E.2d 140, 145 (Ind. Ct. App. 1992), trans. denied.
The framers of the Indiana Constitution placed high value on reputation. Our Constitution pro-
vides that “All courts shall be open; and every person, for injury done to him in his person, prop-
erty, or reputation, shall have remedy by due course of law.” Ind. Const. art. I, § 12. Whether a
communication is defamatory or not is a question of law for the court, unless the communication
is susceptible to either a defamatory or nondefamatory interpretation — in which case the matter
may be submitted to the jury. Rambo, 587 N.E.2d at 145.
A defamatory communication is said to either be “defamatory per se” or “defamatory per
quod.” A communication is defamatory per se if it imputes: (1) criminal conduct; (2) a loath-
some disease; (3) misconduct in a person’s trade, profession, office, or occupation; or (4) sexual
misconduct. Id. (citing cases). All other defamatory communications are defamatory per quod.
Id. at 146. To maintain an action for either per se or per quod defamation the plaintiff must dem-
onstrate (1) a communication with defamatory imputation; (2) malice; (3) publication; and (4)
damages. Schrader v. Eli Lilly and Co., 639 N.E.2d 258, 261 (Ind. 1994). Actions for per se and
per quod defamation are susceptible to different requirements with regard to the showing of dam-
ages. In an action for defamation per se the plaintiff “is entitled to presumed damages ‘as a natu-
ral and probable consequence’ of the per se defamation.” Rambo, 587 N.E.2d at 145 (citing Elli-
ott v. Roach, 409 N.E.2d 661, 683 (Ind. Ct. App. 1980)). In an action for defamation per quod,
the plaintiff must demonstrate special damages. Id. at 146 (citing cases).
Kelley maintains that the requirements for maintaining an action for defamation per se
have been met in this case. In the Court of Appeals, Tanoos argued that he was properly
awarded summary judgment because at least three of the four elements for a defamation action
were not present. The Court of Appeals disagreed, and found instead that (1) Tanoos’s state-
4
ments were defamatory per se; (2) Kelley had designated sufficient evidence to raise a question
of fact as to whether Tanoos made the defamatory remarks with malice; and (3) that the record
overwhelmingly supports the contention that Kelley was not damaged. Kelley, 840 N.E.2d at
347-48. Despite finding no evidence that Kelley sustained any damages at all, the Court of Ap-
peals did not affirm the grant of summary judgment in favor of Tanoos because, as stated supra,
in a per se action for defamation, damages are presumed and, per Ind. Evidence Rule 301, even
rebutted presumptions are given continuing effect. Id. at 350-49; Schultz v. Ford Motor Co., 857
N.E.2d 977 (Ind. 2006).
On transfer, Tanoos asks this Court to abolish the presumption of damages in an action
for defamation per se, and grant summary judgment in his favor. We decline Tanoos’s invitation
to abolish the presumption of damages in an action for defamation per se; instead, we resolve
this case under the qualified privilege doctrine.
II
A qualified privilege protects “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 corre-
sponding interest or duty.” Bals v. Verduzco, 600 N.E.2d 1353, 1356 (Ind. 1992) (quoting
Chambers v. American Trans Air, Inc., 577 N.E.2d 612, 615 (Ind. Ct. App. 1991), trans.
denied.). To “enhance[] public safety by facilitating the investigation of suspected criminal ac-
tivity,” communications to law enforcement officers are protected by this qualified privilege.
Holcomb v. Walter’s Dimmick Petroleum, 858 N.E.2d 103, 108 (Ind. 2006). In the absence of a
factual dispute, the applicability of the privilege is a question of law to be determined by the
court. Bals, 600 N.E.2d at 1356.
A
Our courts have recognized two distinct rationales for holding certain communications
qualifiedly privileged. The first is the well-established common interest privilege that protects
5
communication made in connection with membership qualifications, Indianapolis Horse Patrol
Inc. v. Ward, 247 Ind. 519, 217 N.E.2d 626 (1966); employment references, Passmore v. Multi-
Management Services Inc., 810 N.E.2d 1022 (Ind. 2004); intracompany communications,
Schrader, 639 N.E.2d at 258; and the extension of credit, Boydston v. Chrysler Credit Corp., 511
N.E.2d 318 (Ind. Ct. App. 1987). This privilege is intended to facilitate “full and unrestricted
communication on matters in which the parties have a common interest or duty.” Chambers, 577
N.E.2d at 615.
Tanoos contends that his statements to Sinclair are protected by the common interest
privilege. To support this contention, Tanoos argues that both he and Sinclair were executives in
partnered education institutions, that Sinclair employed Kelley as a school guard, and that ten-
sion between the School Corporation and Gibault had arisen as a result of Gibault’s refusal to
cooperate with the police investigation. (Appellee’s Br. at 20.) Chiefly, Tanoos argues that both
he and Sinclair share a common interest “in discerning the potentially violent propensities of an
individual guarding school-age Vigo County community children . . . .” Id.
As stated by the court in Elliott v. Roach:
In viewing such arguments, this court is cognizant not only of the broad
legal categories represented by such terms as “interest” and “duty,” but also of an
underlying consideration whenever privilege is alleged—namely, whether the
evidence shows the defamer in fact acted for a privileged purpose and in good
faith. It has properly been held
“The privilege attaches only if the communication was made in
good faith to serve the interests of the publisher and the person to
whom it is addressed, and it does not exist if the privileged occa-
sion was abused. There is no privilege if the publication was made
primarily for the purpose of furthering an interest that is not enti-
tled to protection, or if the defendant acted principally through mo-
tives of ill will, or, so it is held, if he acted recklessly. Whether a
defendant acted in good faith in making a statement usually is a
question of fact for the jury.”
409 N.E.2d at 673 (quoting 50 Am. Jur. 2d Libel and Slander § 197 at 702-03 (1970)).
6
There is a limit to the scope of protection available under the qualified privilege doctrine.
A communication otherwise protected by a qualified privilege may lose its protection if it is
shown that: “(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, 600 N.E.2d at 1356. “And although the
term ‘malice’ is frequently applied in viewing such acts, it appears ‘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.’” Elliott, 409 N.E.2d at 673 (quoting Weenig v. Wood, 169
Ind. App. 413, 349 N.E.2d 235, 249 (1976), trans. denied.).
It is evident that the legal question of a shared interest or duty must be answered before
the associated factual question of whether the defamer acted for a protected purpose. See id. In
this case, we are unable to conclude that Tanoos’s statements to Sinclair are protected by the
common interest privilege because there is evidence that the interests of Tanoos and Sinclair are
not sufficiently concurrent to make Tanoos’s statements qualifiedly privileged.
Here, there is substantial evidence that Tanoos’s principal interest in making the state-
ments was in having his attempted murderer apprehended, while Sinclair’s principal interest was
in repairing strained relations between the School Corporation and Gibault. Even assuming Ta-
noos acted from less subjective motives, absent a more particular shared interest, protecting him-
self or school-age Vigo County community children does not give rise to the protection of a
privilege. See id. at 678.
To illustrate, compare Gatto v. St. Richard School, Inc., 774 N.E.2d 914 (Ind. Ct. App.
2002), a case Tanoos cites for support to this one. In Gatto, the common interest privilege was
held to have applied to a school’s communication to students’ parents about the termination of a
school employee. There, the court reasoned, “Parents and schools have a ‘corresponding inter-
est’ in the free flow of information about administrators and faculty members.” Gatto, 774
N.E.2d at 925. The school’s communication to parents was privileged because both the parents’
and the school’s interest was particular to a discrete group of children and the alleged defamatory
statements were relevant to that particularized interest.
7
The relationship between the concurrent interest and the defamatory remarks found in
Gatto and in comparable cases is not readily apparent in the case before us. 1 In Gatto the parents
and the school officials shared a joint interest in the welfare of particularized children. Here, Ta-
noos shares no special relationship with Gibault students. The only interest, if any, Tanoos has
for Gibault students is a generalized interest in their wellbeing. Even assuming, arguendo, that
Tanoos and Sinclair shared a joint interest in repairing strained relations between the School
Corporation and Gibault, Tanoos’s remarks to Sinclair regarding Kelley were not, as a matter of
law, relevant to that interest. In sum, “The information [Tanoos] profess[ed] to [provide] was
volunteered, and the purpose for which it was conveyed to [Kelley’s] employer was solely for
the benefit of [Tanoos], and was not intended to benefit the employer by giving him, in good
faith and for a just purpose, information necessary for his protection against a knavish servant.”
Over v. Schiffling, 102 Ind. 191, 26 N.E. 91, 92 (1885).
Accordingly, we conclude that Tanoos’s statements to Sinclair are not protected by a
common interest privilege as a matter of law. We believe that to hold otherwise would bring
within the common interest privilege in future cases communications not entitled to protection
given the purpose of the privilege.
B
In addition to the common interest privilege, Indiana courts have also recognized what
section 598 of the Restatement (Second) of Torts (1977) calls a “public interest privilege.” 2 In
1
Tanoos argued to the Court of Appeals and argues to this Court that Celebration Fireworks Inc., v.
Smith, 727 N.E.2d 450 (Ind. 2000), supports application of the common interest privilege. This case,
however, is distinguishable both by the facts and by the applicable legal principles. In Celebration, the
Court noted that the defendant was “plainly . . . on public time, performing a function that was central to
the position he held.” Celebration 727 N.E.2d at 453. In this case, Tanoos was not “plainly” on public
time, as the conversation between him and Sinclair occurred over lunch and it is questionable whether
furthering a police investigation into his attempted murder by wearing a wire is central to his duties as a
school superintendent.
2
Section 598 of the Restatement reads:
§ 598. Communication to One Who May Act in the Public Interest
8
Elliott v. Roach, the court, quoting the Restatement, noted that the public interest privilege “may
protect communications made to one entitled to act in the public interest, as in the case of state-
ments to . . . law enforcement officers.” Elliott, 409 N.E.2d at 672. In Conn v. Paul Harris
Stores, Inc., 439 N.E.2d 195, 200 (Ind. Ct. App. 1982), trans. denied, the court recognized a con-
ditional privilege that extended to “protect statements and communications made to law en-
forcement officers.” That court, relying on authority outside of Indiana, said “statements made
in good faith pursuant to investigation by police of a crime are made in the performance of a
public duty and are privileged.” Conn, 439 N.E.2d at 200 (quoting Zakas v. Mills, 251 S.E.2d
135, 136 (Ga. Ct. App. 1978)). In Indiana National Bank v. Chapman, 482 N.E.2d 474, 479
(Ind. Ct. App. 1985), trans. denied, the court relied on Elliott and Conn to find that statements
made to the police “during the course of a legitimate law enforcement investigation” are qualifi-
edly privileged. The policy rationales articulated in these Court of Appeals cases were recently
endorsed by this Court in Holcomb v. Walter’s Dimmick Petroleum. In Holcomb, this Court
held that statements made to a police officer to report a crime were qualifiedly privileged to “en-
hance[] public safety by facilitating the investigation of suspected criminal activity.” Holcomb,
858 N.E.2d at 108. Accordingly, it is well established that in Indiana, communications made to
law enforcement to report criminal activity are qualifiedly privileged. This so-called public in-
terest privilege is intended to encourage private individuals to assist law enforcement with inves-
tigating and apprehending criminals.
The Restatement, under the purview of the public interest privilege, articulates a broader
scope of protection than adopted in Indiana:
The privilege stated in . . . Section [598] affords protection to a private
citizen who publishes defamatory matter to a third person even though he is not a
law enforcement officer, under circumstances which, if true, would give to the re-
An occasion makes a publication conditionally privileged if the circumstances induce a correct or
reasonable belief that
(a) there is information that affects a sufficiently important public interest, and
(b) the public interest requires the communication of the defamatory matter to a public
officer or a private citizen who is authorized or privileged to take action if the de-
famatory matter is true.
Restatement (Second) of Torts § 598 (1977).
9
cipient a privilege to act for purposes of preventing a crime or of apprehending a
criminal or fugitive from justice.
Restatement (Second) of Torts § 598 cmt. f (1977).
As stated supra, Indiana courts have not adopted this reading of the public interest privi-
lege and, therefore do not protect such communications to private citizens. Tanoos, through his
amici, asks us to extend the public interest privilege to cover communications to private citizens,
and to extend its protection to him.
We agree with the amici and the Restatement and think the public interest privilege, un-
der a limited number of circumstances, protects communications to private citizens. Statements
reporting criminal activity to law enforcement, as stated supra, are privileged to enhance public
safety by facilitating the investigation of suspected criminal activity. We think certain state-
ments to private citizens may further the same end.
In Pate v. Service Merchandise Co., Inc., the Tennessee Court of Appeals adopted this
view of the public interest privilege and held that a store clerk who reported suspicious criminal
activity to a private security guard and theft victim was protected by the public interest privilege.
That court reasoned:
[E]ven though the investigation was not conducted by the local police, the inves-
tigation by the security department could have led to the apprehension of the
criminal. It is reasonable for anyone in the position of the clerks to believe that
the identification would affect the public interest of preventing crime. The public
interest privilege is grounded in public policy, and we should encourage coopera-
tion with an investigation of a criminal matter.
Pate v. Service Merchandise Co., Inc., 959 S.W.2d 569, 576-77 (Tenn. Ct. App. 1996).
Just as statements to law enforcement further a public interest, similar statements made to
a private citizen may further the same interest. That interest is grounded in a public policy in-
tended to encourage private citizens and victims not only to report crime, but also to assist law
enforcement with investigating and apprehending individuals who engage in criminal activity.
10
The rationale for privileging communications to law enforcement and to certain private
citizens is applicable here. Tanoos’s statements, made at least in part at the behest of law en-
forcement, to Sinclair were designed to elicit information about Kelley to further an ongoing
criminal investigation. It is reasonable to conclude that when law enforcement and the victim of
a crime work in concert, the likelihood of apprehending the perpetrator of the crime increases.
As noted by the court in Pate, “The victim of a crime has the unfortunate privilege of acting to
apprehend a criminal. Most times it would be impossible for the police to successfully investi-
gate and apprehend criminals without the actions of the victim.” Id. at 577. Accordingly, we
hold that Tanoos’s statements to Sinclair are qualifiedly privileged by the public interest privi-
lege as a matter of law.
As noted supra, a communication otherwise protected by a qualified privilege may lose
its protection if it is shown that: “(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, 600 N.E.2d at
1356.
If a communication is found to be qualifiedly privileged, the burden is on the plaintiff to
show that the privilege has been abused. Id. Unless only one conclusion can be drawn from the
evidence, the question of whether the privilege has been abused is for the jury. Id. at 1357 (quot-
ing William Prosser, Law of Torts § 115, at 796 (4th ed. 1971)).
Kelley argues that if Tanoos’s statements are qualifiedly privileged, Tanoos lost the privi-
lege because he used the privileged occasion for an improper purpose. Kelley designated the
deposition testimony of Indiana State Police Detective Turchi and Terre Haute Police Captain
Erney to support his contention that Tanoos exceeded the number and type of questions law en-
forcement requested he ask Sinclair. The designated evidence, however, fails to support Kelley’s
argument. Law enforcement, in addition to asking Tanoos to elicit particular information, also
asked him to elicit whatever relevant information he could from Sinclair. Thus, contrary to Kel-
11
ley’s contention, law enforcement did not limit the number or type of questions they requested
Tanoos ask Sinclair.
Kelley also contends that Tanoos did not believe or have reason to believe certain state-
ments he made to Sinclair. Kelley says, “at the time Tanoos made [the] statements . . . he knew
they were false, and he knew that the police had ruled out Kelley as a ‘person of interest.’” (Ap-
pellant’s Br. at 42.) To support his contention that Tanoos did not believe the alleged defama-
tory statements, Kelley designates Tanoos’s testimony at the Ketner trial:
Q: All right. Did you become convinced after the shooting that Jay Kelley was
the one who shot you?
A: No.
....
Q: Do you recall telling Mr. Sinclair during the conversation: “I’m convinced
from all that I’ve seen and heard it was him.”
A: I don’t recall that statement, I may have tried to get him to say something at
that point and use that statement, I don’t recall that.
....
Q: You [m]ay have said it, but you didn’t believe it?
A: My point at that time again was to try to—as I met with the police they asked
me to ask certain questions to try to see why he wanted to meet with me and see
what information he had, so I was going on what the police had asked me to do.
Q: So, were you telling Mr. Sinclair false things or things that you didn’t believe,
trying to act as some sort of informant or interviewer?
A: I was trying to find out why he wanted to meet with me and what he had to of-
fer for the meeting that he had asked me to attend.
(Appellant’s App. at 497, 502-03.) To rebut Kelley’s argument, Tanoos designates testimony
that he says places the alleged defamatory statement in proper context:
12
Well, I think through what the police have found it was not random. I mean – I
think they’re convinced – I’m as convinced as the police are that Jay Kelley did it.
(Appellee’s Br. at 25.) We agree with Tanoos, and think when read in context the testimony des-
ignated by Kelley does not demonstrate that Tanoos’s statement to Sinclair, that he and the po-
lice both were “convinced that Jay Kelley did it,” was made without belief or grounds for belief
as to truth. As noted by this Court in Bals v. Verduzco, the issue is not the factual accuracy of
the statements; “the crucial issue is whether the alleged defamations were made . . . without be-
lief or grounds for belief as to truth.” Bals, 600 N.E.2d at 1357. If the police and Tanoos did not
believe Kelley was involved in the incident and if the police no longer considered Kelley a “per-
son of interest,” then Tanoos would likely not have telephoned the police after receiving a lunch
invitation from Sinclair and the police very likely would not have expressed interest in the meet-
ing between Tanoos and Sinclair and would not have asked Tanoos to wear a wire. Because Kel-
ley has failed to designate evidence that demonstrates Tanoos abused the privileged occasion,
summary judgment is appropriate.
Conclusion
We affirm the judgment of the trial court with respect to its decision to deny Kelley’s mo-
tion for summary judgment and to grant summary judgment in favor of Tanoos.
Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.
13