                                                                           FILED
                                                                    Mar 24 2016, 9:47 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Swaray Edward Conteh                                      ALLIANCE HOME HEALTH
The Law Office of Swaray Conteh                           CARE, LLC
Indianapolis, Indiana                                     John D. Papageorge
                                                          Jeffrey D. Stemerick
                                                          Taft Stettinius & Hollister, LLP
                                                          Indianapolis, Indiana

                                                          ATTORNEYS FOR APPELLEES
                                                          L.J.L. ENTERPRISES, INC., AND
                                                          LARRY J. LOGSDON

                                                          John W. Mervilde
                                                          Rick D. Meils
                                                          William M. Berish
                                                          Meils Thompson Dietz & Berish
                                                          Indianapolis, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

Roukaya Ali,                                              March 24, 2016
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          49A02-1507-CT-986
        v.                                                Appeal from the Marion Superior
                                                          Court
Alliance Home Health Care,                                The Honorable Cynthia J. Ayers,
LLC, L.J.L. Enterprises, Inc.,                            Judge
and Larry J. Logsdon,                                     Trial Court Cause No.
Appellees-Defendants                                      49D04-1301-CT-1068




Court of Appeals of Indiana | Opinion 49A02-1507-CT-986 | March 24, 2016                    Page 1 of 21
      Crone, Judge.


                                              Case Summary
[1]   Roukaya Ali appeals a summary judgment in favor of Alliance Home Health

      Care, LLC (“Alliance”), L.J.L. Enterprises, Inc. (“LJL”), and LJL’s sole owner

      Larry J. Logsdon (collectively “Appellees”) on her claims of defamation,

      malicious prosecution, false imprisonment, intentional infliction of emotional

      distress, and vicarious liability, all stemming from Appellees’ claims that she

      stole jewelry from two of her home healthcare patients. 1 We affirm.


                                Facts and Procedural History
[2]   The undisputed facts are as follows. Alliance is a home healthcare company in

      the business of providing skilled home nursing, therapy, and companion

      services for senior adults who often cannot care for themselves. Ali, a certified

      nurse’s aide (“CNA”) and certified home health aide (“CHHA”), began her

      employment as an in-home health worker at Alliance in 2007.


[3]   On January 31, 2011, Alliance patient Albert Barnes and his wife discovered

      that twelve pieces of jewelry were missing from their home. Among the




      1
         In her complaint, Ali also alleged negligent supervision and negligent infliction of emotional distress. She
      withdrew her negligent supervision claim, and the trial court entered summary judgment in favor of
      Appellees on that claim. With respect to her claim of negligent infliction of emotional distress, she
      acknowledges Indiana’s rule requiring that the plaintiff in such cases sustain a “direct physical impact.” Bah
      v. Mac’s Convenience Stores, LLC, 37 N.E.3d 539, 546-47 (Ind. Ct. App. 2015), trans. denied (2016). Admitting
      that she has not suffered any physical impact, she now withdraws this claim for appellate review. Appellant’s
      Br. at 38. Thus, we affirm summary judgment on those claims.

      Court of Appeals of Indiana | Opinion 49A02-1507-CT-986 | March 24, 2016                          Page 2 of 21
      missing items was Barnes’s unique ring with Greek letters, small diamonds, and

      an anchor pin attached to it. The Barneses notified the Indianapolis

      Metropolitan Police Department (“IMPD”), which began an investigation.

      Barnes’s wife told IMPD that she remembered seeing the jewelry on January

      28, and Barnes said that he wore some of the rings on January 29. The couple

      also reported the theft to their insurance company, which in turn notified

      Alliance. Alliance’s human resources department began an internal

      investigation and subsequently hired an outside company, LJL, to conduct the

      investigation. LJL’s sole owner and president is Logsdon, a retired sheriff’s

      department investigator. Logsdon checked the employee schedule and found

      that only two Alliance employees had worked at the Barnes residence between

      January 28 and January 31, 2011. One of those was Ali, who did not regularly

      work for Barnes but had worked at his home as a fill-in on January 30 and 31

      from 11:00 a.m. to 5:00 p.m.


[4]   On February 7, 2011, Betty McIntyre, the regular fulltime nurse for another

      Alliance patient, Jack Morris, discovered that Morris was not wearing his

      Masonic ring. Morris was elderly and needed 24/7 care, and McIntyre knew

      that he never took off his Masonic ring. She noticed that he was wearing a

      different ring, one with Greek letters, diamonds, and an anchor pin attached.

      Morris’s son reported the theft of the Masonic ring to IMPD. When Alliance

      received word of the Morris theft, Logsdon went to interview McIntyre, who

      told him that she last remembered seeing the Masonic ring on Morris’s finger

      on February 4, 2011, and that she had heard Morris say, on February 7, 2011,


      Court of Appeals of Indiana | Opinion 49A02-1507-CT-986 | March 24, 2016   Page 3 of 21
      that his ring was missing and had been replaced with a different one. Logsdon

      also interviewed Theresa Azikiwe, the Alliance employee who worked for

      Morris on February 9, 2011. Azikiwe reported that Morris had pointed to the

      ring with the Greek letters, diamonds, and anchor pin and said that he wanted

      his son to have it.


[5]   The Barneses subsequently identified the unique anchor ring found on Morris’s

      finger as one of the items stolen from their residence. Logsdon consulted the

      Alliance schedules and discovered that Ali had worked as fill-in at Morris’s

      residence on February 6, 2011. Six other Alliance employees had worked for

      Morris, but a comparison of the schedules showed that Ali was the only

      employee who had worked for both Barnes and Morris during the timeframes

      that they had pinpointed for the thefts. Barnes and Morris lived about fourteen

      miles apart and were not acquainted.


[6]   Alliance terminated Ali’s employment on February 27, 2011. When Ali

      applied for unemployment benefits, the Department of Workforce

      Development (“DWD”) sent Alliance a form inquiring as to the reason for her

      termination. Alliance responded that the reason was theft. Alliance also

      contacted the Indiana State Department of Health (“ISDH”) concerning the

      results of its theft investigation against Ali. ISDH conducted an evidentiary

      hearing and determined that Ali had misappropriated the jewelry from Barnes

      and Morris. As a result, ISDH revoked Ali’s healthcare certifications.




      Court of Appeals of Indiana | Opinion 49A02-1507-CT-986 | March 24, 2016   Page 4 of 21
[7]    IMPD conducted an investigation of both thefts and interviewed numerous

       witnesses and suspects, including Ali. Alliance and Logsdon cooperated by

       providing IMPD with the information gathered during Logsdon’s investigation.

       IMPD Detective Michael Schollmeier executed a probable cause affidavit

       implicating Ali as the perpetrator of both thefts.


[8]    Marion County Deputy Prosecutor Robert Reel reviewed the evidence

       submitted by IMPD and concluded that probable cause existed to charge Ali

       with both thefts. A Marion Superior Court judge made a determination of

       probable cause and issued a warrant for Ali’s arrest. The State charged her with

       two counts of class D felony theft. She is an African immigrant subject to

       deportation for a felony conviction. She was acquitted following a bench trial.


[9]    Ali filed a civil action against Appellees, alleging defamation, malicious

       prosecution, false imprisonment, negligent supervision (subsequently

       withdrawn), vicarious liability, intentional infliction of emotional distress, and

       negligent infliction of emotional distress. Appellees sought summary judgment,

       which the trial court granted. The trial court subsequently issued an order

       clarifying that its summary judgment order pertained to LJL and Logsdon as

       well as to Alliance. Ali now appeals. Additional facts will be provided as

       necessary.


                                    Discussion and Decision
[10]   Ali maintains that the trial court erred in granting summary judgment in favor

       of Appellees. We review a summary judgment de novo, applying the same

       Court of Appeals of Indiana | Opinion 49A02-1507-CT-986 | March 24, 2016   Page 5 of 21
       standard as the trial court and drawing all reasonable inferences in favor of the

       nonmoving party. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). In

       conducting our review, we consider only those matters that were designated at

       the summary judgment stage. Haegert v. McMullan, 953 N.E.2d 1223, 1229

       (Ind. Ct. App. 2011). Summary judgment is appropriate if the designated

       evidence shows that there is no genuine issue as to any material fact and that

       the moving party is entitled to judgment as a matter of law. Hughley, 15 N.E.3d

       at 1003; Ind. Trial Rule 56(C).


[11]   The moving party bears the initial burden of demonstrating the “absence of any

       genuine issue of fact as to a determinative issue.” Williams v. Tharp, 914 N.E.2d

       756, 761 (Ind. 2009). Then the burden shifts to the nonmoving party to “come

       forward with contrary evidence” showing a genuine issue for the trier of fact.

       Id. at 762. The nonmoving party cannot rest upon the allegations or denials in

       the pleadings. Syfu v. Quinn, 826 N.E.2d 699, 703 (Ind. Ct. App. 2005). In

       Hughley, our supreme court emphasized that the moving party bears an onerous

       burden of affirmatively negating the opponent’s claim. 15 N.E.3d at 1003. This

       approach is based on the policy of preserving a party’s day in court, thus erring

       on the side of allowing marginal cases to proceed to trial on the merits rather

       than risking the short-circuiting of meritorious claims. Id. at 1003-04. A trial

       court’s grant of summary judgment arrives on appeal clothed with a

       presumption of validity. Williams, 914 N.E.2d at 762.


[12]   We note that the trial court issued findings of fact and conclusions thereon as

       part of its summary judgment order. Special findings are neither required nor

       Court of Appeals of Indiana | Opinion 49A02-1507-CT-986 | March 24, 2016   Page 6 of 21
       binding on appeal of a summary judgment. New Albany Preservation Comm’n v.

       Bradford Realty, Inc., 965 N.E.2d 79, 84 (Ind. Ct. App. 2012). However, the

       findings offer valuable insight into the trial court’s rationale and are helpful in

       facilitating our review. Id.


          Section 1 – The trial court did not err in granting summary
                     judgment on Ali’s defamation claims.
[13]   Ali submits that the trial court erred in granting summary judgment in favor of

       the Appellees on her defamation claims.

               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.”
               To recover in an action for defamation, “that which caused the
               alleged defamation must be both false and defamatory.”
               Moreover, a plaintiff must establish the basic elements of
               defamation: (1) a communication with a defamatory imputation;
               (2) malice; (3) publication; and (4) damages. The determination
               of whether a communication is defamatory is a question of law
               for the court.


       Haegert, 953 N.E.2d at 1230 (citations omitted).


[14]   “[A] plaintiff who sues for defamation must set out the alleged defamatory

       statement[s] in the complaint.” Id. “When specific statements that are alleged

       to be defamatory have not been sufficiently identified in a plaintiff’s complaint,

       an award of summary judgment for the defendant is proper.” Miller v. Cent. Ind.

       Cmty. Found., Inc., 11 N.E.3d 944, 956 (Ind. Ct. App. 2014), trans. denied (2015).



       Court of Appeals of Indiana | Opinion 49A02-1507-CT-986 | March 24, 2016    Page 7 of 21
[15]   In Counts II and III of her complaint, 2 Ali averred:

               From February 1, 2011, through July 17, 2012, and on numerous
               other occasions, in conversations which Logsdon, Roselyn
               Howard, Deborah Rood, Alicia Epler, Janice Roberts and other
               agents of Alliance had with and in the hearing and presence and
               presence [sic] of certain persons, maliciously made certain
               slanderous, false, malicious, and defamatory statements about
               Plaintiff stating that Plaintiff stole from Client One and Client
               Two pieces of jewelry on several occasions.


       Appellant’s App. at 32-33. This allegation does not specifically identify the

       statements alleged to have been made by each of the several named individuals

       “or other agents.” Id. Nor does it specify the persons to whom (or in front of

       whom) the alleged defamatory statements were published. We find that it lacks

       the specificity necessary to state a claim for defamation. Ali’s subsequent

       attempts in both her brief in opposition to summary judgment and her

       appellant’s brief to add specific examples of allegedly defamatory statements are

       not sufficient to salvage her claims. Notwithstanding, we address her

       supplemental allegations of defamatory statements as best we can discern them.




       2
         Count II was titled “Slander Per Quod,” and Count III was titled “Slander Per Se.” Appellant’s App. at
       32-33. We address these together, as our analysis does not require us to discuss the elements that
       differentiate the two torts. See, e.g., Kelley v. Tanoos, 865 N.E.2d 593, 596 (Ind. 2007) (stating that
       communication is defamatory per se if it imputes criminal conduct, loathsome disease, misconduct in
       person’s trade, profession, office, or occupation, or sexual misconduct and emphasizing that damages are
       presumed in defamation per se cases).

       Court of Appeals of Indiana | Opinion 49A02-1507-CT-986 | March 24, 2016                       Page 8 of 21
[16]   Appellees assert that the communications cited by Ali in her brief and in her

       motion in opposition to summary judgment are protected by qualified privilege

       or by statute.

               [Qualified] privilege is a defense against a defamation action and
               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 ... if made to a
               person having a corresponding interest or duty.” The privilege
               may be overcome when the plaintiff demonstrates an abuse of the
               privilege.


[17]   Trail v. Boys & Girls Clubs of Nw. Ind., 845 N.E.2d 130, 136 (Ind. 2006) (citations

       omitted). A communication may lose its privileged character upon a showing

       of abuse where “(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.” Williams, 914 N.E.2d at 763-64 (quoting Bals v. Verduzco, 600 N.E.2d

       1353, 1356 (Ind. 1992)).


          Section 1.1 – Appellees’ communications with law enforcement are
                                qualifiedly privileged.

[18]   Appellees claim that their statements to law enforcement concerning Ali’s

       connection to the thefts are subject to the qualified privilege exception. It is

       well established that “communications made to law enforcement to report

       criminal activity are qualifiedly privileged.” Williams, 914 N.E.2d at 763

       (quoting Kelley v. Tanoos, 865 N.E.2d 593, 600 (Ind. 2007)). This furthers the

       compelling public interest of encouraging citizens not only to report suspected
       Court of Appeals of Indiana | Opinion 49A02-1507-CT-986 | March 24, 2016   Page 9 of 21
       wrongdoing but also to assist law enforcement in investigating and

       apprehending persons who engage in criminal activity. Id. at 762-63.


               If this purpose is to be met, the privilege must offer a robust
               defense against liability. Protecting unverified and even
               speculative reports of suspected wrongdoing to law enforcement
               is, in our view, supported by ample reasons of social advantage.
               It is important that citizens not opt for inaction, chilled from
               communicating with police in all but the most certain of
               situations.


       Id. at 765.


[19]   Significantly, it was Barnes’s and Morris’s relatives, not Appellees, who

       initiated the contact with IMPD by reporting the thefts. Appellees simply

       cooperated with IMPD by sharing the results of their internal investigation. Ali

       now claims Appellees acted with ill will based on her race and immigrant

       status. She relies on our recent decision in Bah v. Mac’s Convenience Stores, LLC,

       claiming that this renders summary judgment inappropriate because her claim

       hinges on state-of-mind and witness credibility. 37 N.E.3d 539, 548-49 (Ind.

       Ct. App. 2015), trans. denied (2016).


[20]   We find Bah distinguishable. There, the plaintiff/employee had a contentious

       relationship with her supervisor that included his giving her a negative

       evaluation, his transferring her to a smaller store over her objection, her

       attempts to go over his head to report malfeasance, and her refusal to resign.

       Id. In contrast, here, Ali designated no evidence of any history of a negative

       relationship with Alliance personnel. Logsdon did not know her or even know

       Court of Appeals of Indiana | Opinion 49A02-1507-CT-986 | March 24, 2016   Page 10 of 21
       of her until he began his investigation, and his conclusions were based largely

       on information contained in the employee schedules showing that she was the

       link between the two unacquainted victims. None of this implicates her race or

       immigrant status, and she neither raised such an allegation in her complaint nor

       designated evidence to that effect. Nor has she designated evidence

       substantiating her claim that Logsdon essentially commanded IMPD to arrest

       her. In short, she failed to designate evidence to overcome the qualified public

       interest privilege concerning Appellees’ communications with law enforcement.


           Section 1.2 – Alliance’s communications to its insurance agent are
                 protected by the common interest qualified privilege.

[21]   Ali also claims that Alliance’s correspondence with its insurance agent is

       defamatory. Alliance asserts that these communications are protected by the

       common interest privilege.


               A communication is protected by a qualified privilege of
               common interest if the communication was 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.” The
               privilege exists because of “the necessity for full and unrestricted
               communication on matters in which the parties have a common
               interest or duty.” The existence of a qualified privilege does not
               change the actionable nature of the words spoken. Rather the
               privilege “rebuts the element of malice implied by law for the
               making of a defamatory statement.” The elements of the defense
               are: (1) good faith, (2) an interest to be upheld, (3) a statement
               limited in its scope to this purpose, (4) a proper occasion, and (5)
               publication in a proper manner to the appropriate parties only.

       Court of Appeals of Indiana | Opinion 49A02-1507-CT-986 | March 24, 2016   Page 11 of 21
               The defendant has the burden to produce evidence establishing
               the existence of the privilege. Whether the privilege exists is
               generally a question of law.


       Cortez v. Jo-Ann Stores, Inc., 827 N.E.2d 1223, 1232-33 (Ind. Ct. App. 2005)

       (citations omitted).


[22]   Here, Alliance’s human resource manager Roselyn Howard sent an email titled

       “Liability Claim” to the company’s insurance agent. Appellant’s App. at 281.

       The email briefly explained that a family member of Morris had inquired about

       whether Alliance’s insurer would reimburse Morris the cost of replacing his

       stolen ring. In the email, Howard indicated her intent to fax the applicable

       police reports. She also provided contact information for Morris’s son in case

       the insurer needed additional information. The email included a standard

       “CONFIDENTIALITY NOTICE” indicating that the communication was

       “proprietary, privileged, confidential and/or exempt from disclosure under

       applicable law.” Id.


[23]   We conclude that the communication between Alliance and its insurer was a

       good faith attempt to discern whether the insurer would cover its client’s loss,

       an issue of common interest to both insurer and insured. The communication

       was limited in scope and nature and included an adequate admonition

       regarding its confidential nature. As such, it was protected by the qualified

       common interest privilege as a matter of law.




       Court of Appeals of Indiana | Opinion 49A02-1507-CT-986 | March 24, 2016   Page 12 of 21
        Section 1.3 – Appellees’ communications with ISDH are protected by
                                     statute.

[24]   Ali asserts that Appellees defamed her to ISDH, thereby causing her to lose her

       licenses to practice as a CNA and CHHA. Indiana Code Section 16-28-13-9(3)

       states, “A person … who in good faith … makes a report to the state

       department [of health] or the nurse registry[] is immune from both civil and

       criminal liability arising from those actions.” Importantly, Alliance did not

       submit its report to ISDH until after IMPD and Logsdon had completed their

       independent investigations and concluded that Ali had committed the thefts.

       ISDH then conducted a hearing and made an independent determination that

       Ali had taken the jewelry from the victims. Logsdon’s testimony was merely

       part of that hearing. Ali did not designate evidence indicating that Appellees

       had ill will or a lack of belief in the truth of the findings contained in their report

       to ISDH. This is exactly the type of information protected by the statute.


        Section 1.4 – Alliance’s communications with DWD are protected by
                                     statute.

[25]   Similarly, Alliance’s communications with DWD are privileged pursuant to

       statute. Indiana Code Section 22-4-17-9 states in pertinent part,

               Any testimony or evidence submitted in due course before the
               board, the department, the review board, an administrative law
               judge, or any duly authorized representative of any of them shall
               be deemed a communication presumptively privileged with
               respect to any civil action except actions to enforce the provisions
               of this article.



       Court of Appeals of Indiana | Opinion 49A02-1507-CT-986 | March 24, 2016    Page 13 of 21
       Here, Alliance did not initiate contact with DWD. Rather, DWD initiated

       contact with Alliance after Ali sought unemployment benefits. As required by

       law, Alliance filled out a form responding to DWD’s inquiry concerning the

       reason for Ali’s termination, theft. The record is devoid of any designated

       evidence indicating that Alliance acted with ill will or a lack of good faith in

       simply complying with this statutory obligation. Rather, this is precisely the

       type of communication that the statute is intended to protect.


              Section 1.5 – Logsdon’s communications in furtherance of his
                   investigation are not defamatory as a matter of law.

[26]   The designated evidence shows that Logsdon made statements to IMPD, the

       victims, and certain Alliance healthcare workers as part of his investigation. As

       discussed, his communications to IMPD are protected by the qualified

       privilege. As for his communications to the theft victims concerning the results

       of his investigation, we conclude that they do not amount to defamation

       because they were not false and defamatory. Haegert, 953 N.E.2d at 1230

       (stating that in a defamation action, plaintiff must establish that defendant

       made statements that were both “false and defamatory”). Instead, he was

       simply reporting that the evidence led him to conclude that Ali was the thief

       and that IMPD was charging her as such. This is also true of his statement to

       another Alliance employee previously under suspicion. Ali characterizes these

       statements as direct accusations that she stole the jewelry rather than merely

       recitations of Logsden’s investigation results. Even assuming that Logsdon’s

       statements were so direct, Ali has designated no evidence to support an


       Court of Appeals of Indiana | Opinion 49A02-1507-CT-986 | March 24, 2016   Page 14 of 21
       inference that his statements were knowingly false when made. Rather, she

       simply relies on her subsequent criminal acquittal and launches an

       unsubstantiated claim of bigotry against a person who had no history with her

       and did not even know of her prior to the investigation. Based on the

       foregoing, we conclude that the trial court did not err in granting summary

       judgment on this or any of Ali’s defamation claims.


          Section 2 – The trial court did not err in granting summary
                judgment on Ali’s malicious prosecution claim.
[27]   Ali maintains that the trial court erred in granting summary judgment on her

       malicious prosecution claim. To establish a case for malicious prosecution, the

       plaintiff must prove that “(1) the defendant instituted or caused to be instituted

       an action against the plaintiff; (2) the defendant acted maliciously in so doing;

       (3) the defendant had no probable cause to institute the action; and (4) the

       original action was terminated in the plaintiff’s favor.” Crosson v. Berry, 829

       N.E.2d 184, 189 (Ind. Ct. App. 2005), trans. denied. “[A] judicial determination

       of probable cause in a criminal proceeding constitutes prima facie evidence of

       probable cause in a subsequent civil lawsuit alleging malicious prosecution.”

       Glass v. Trump Ind., Inc., 802 N.E.2d 461, 467 (Ind. Ct. App. 2004). The

       plaintiff may overcome such a prima facie showing of probable cause only by

       demonstrating that it was induced by false testimony, fraud, or other improper

       means. Id.


[28]   Here, the designated evidence shows the following: (1) Barnes’s and Morris’s

       relatives initiated contact with IMPD concerning the victims’ missing jewelry;

       Court of Appeals of Indiana | Opinion 49A02-1507-CT-986 | March 24, 2016   Page 15 of 21
       (2) IMPD conducted an independent investigation concerning the thefts, only

       part of which involved consulting with Appellees concerning the results of their

       internal investigation; (3) the deputy prosecutor analyzed the evidence and,

       having determined in his discretion that probable cause existed to file an

       information charging Ali with theft, initiated criminal proceedings against her;

       and (4) the criminal court judge made a judicial determination of probable

       cause. To the extent that Ali suggests that her eventual acquittal conclusively

       establishes that no probable cause existed to charge her with theft in the first

       place, we emphasize that “the 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.” Wells v. Bernitt, 936 N.E.2d 1242,

       1253 (Ind. Ct. App. 2010), trans. denied (2011).


[29]   In short, the prosecutor, not Appellees, initiated the action based on IMPD’s

       investigation, and Ali failed to designate evidence to rebut the prima facie

       judicial determination of probable cause. Thus, her malicious prosecution

       claim fails as a matter of law.


          Section 3 – The trial court did not err in granting summary
                 judgment on Ali’s false imprisonment claim.
[30]   Ali contends that the trial court erred in granting summary judgment on her

       false imprisonment claim. The tort of false imprisonment amounts to an

       “unlawful restraint upon one’s freedom of movement or the deprivation of

       one’s liberty without consent.” Miller v. City of Anderson, 777 N.E.2d 1100,

       1104-05 (Ind. Ct. App. 2002), trans. denied (2003). Below, Ali never alleged that

       Court of Appeals of Indiana | Opinion 49A02-1507-CT-986 | March 24, 2016   Page 16 of 21
       Appellees unlawfully detained or restrained her. 3 Instead, she predicated her

       false imprisonment claim on Appellees’ assistance to authorities in conducting

       their investigation and pursuing criminal charges, which resulted in her being

       jailed pending her release on bond.


[31]   Where the plaintiff claims false arrest, she must demonstrate the absence of

       probable cause to make the arrest. Id. at 1104. “Probable cause for arrest is

       demonstrated by facts and circumstances known to the arresting officer which

       would warrant a person of reasonable caution and prudence in believing that

       the accused had committed or was committing a criminal offense.” Id. Where

       “the plaintiff in a false arrest action fails to demonstrate the absence of probable

       cause, or if the record as a whole reflects probable cause for the arrest, then the

       plaintiff’s case must fail.” Id.


[32]   Ali alleges that she never would have been arrested in the first place had

       Appellees not provided false information to IMPD. In other words, her claim

       flows from what she deems a false arrest and imprisonment based on false

       information. Acting on evidence from IMPD, the prosecutor determined that

       probable cause existed to charge Ali with theft, and the criminal court made a

       determination to the same effect. A judicial determination amounts to a prima




       3
         Ali now alleges that Logsdon falsely imprisoned her in giving her a ride to the police station for her
       polygraph. However, she failed to list this allegation in her complaint. Even so, this new false imprisonment
       allegation cites the length of time consumed by the polygraph itself and not the ride to and from it. IMPD
       was in charge of the polygraph, and Logsdon agreed to drive Ali to the polygraph site as an accommodation
       because she did not want her neighbors to see her in a marked patrol car. In short, this belated allegation is
       meritless.

       Court of Appeals of Indiana | Opinion 49A02-1507-CT-986 | March 24, 2016                        Page 17 of 21
       facie showing of probable cause rebuttable only by evidence showing that the

       finding of probable cause was induced by fraud or false testimony. Street v. Shoe

       Carnival, Inc., 660 N.E.2d 1054, 1057-58 (Ind. Ct. App. 1996).


[33]   Nothing in the designated evidence shows malicious or fraudulent intent on the

       part of Appellees. The peculiar circumstances of Barnes’s ring ending up on the

       finger of Morris, a perfect stranger living fourteen miles away, as a replacement

       for Morris’s missing ring led Appellees to check for a link between the two

       patients. Documentary evidence in the form of employee schedules showed

       that link to be Ali, the only home healthcare worker who cared for each man

       immediately before his jewelry was discovered missing. Simply put, Ali failed

       to designate evidence indicating a malicious or fraudulent motive. Thus, the

       trial court did not err in granting summary judgment on Ali’s false

       imprisonment claim.


         Section 4 – The trial court did not err in granting summary
        judgment on Ali’s intentional infliction of emotional distress
                                    claim.
[34]   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, 37 N.E.3d at 549 (quoting Curry v. Whitaker, 943 N.E.2d 354, 361 (Ind. Ct.

       App. 2011)). The requirements to prove this tort are rigorous, and at its

       foundation is “the intent to harm the plaintiff emotionally.” Id. at 550. As



       Court of Appeals of Indiana | Opinion 49A02-1507-CT-986 | March 24, 2016   Page 18 of 21
       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
               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!”


       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.


[35]   This is one of those cases. Ali designated no evidence to indicate that Alliance

       intended to cause her emotional harm. Instead, the designated evidence shows

       that she had no past incidents during her four-year employment that would

       have caused her superiors to single her out for detrimental treatment. Cf. Bah,

       37 N.E.3d at 548-49 (where employee and supervisor had contentious

       relationship that included employee’s objection to her transfer to smaller store,

       refusal to resign, negative evaluation, and going over supervisor’s head to report


       Court of Appeals of Indiana | Opinion 49A02-1507-CT-986 | March 24, 2016   Page 19 of 21
       concerns). Similarly, Ali designated no evidence indicating that Logsdon, an

       independent contractor hired to conduct Alliance’s internal theft investigation,

       knew or even knew of Ali before interviewing her. Rather, Ali was just one of

       several Alliance home healthcare employees interviewed as part of the

       investigation. Logsdon simply followed the evidence, which showed that a ring

       reported stolen from one patient ended up on the finger of a totally unrelated

       patient fourteen miles away. Based on Alliance’s documentation of work

       schedules, he then concluded that, as Ali was the only employee who had

       worked for both patients during the time of the alleged thefts, she was the link

       between the two patients in this bizarre set of circumstances. From an objective

       viewpoint, this conduct was not outrageous; it was reasonable. Based on the

       foregoing, we conclude that the trial court properly granted summary judgment

       on Ali’s IIED claim.


          Section 5 – The trial court did not err in granting summary
                  judgment on Ali’s vicarious liability claim.
[36]   Finally, Ali asserts that the trial court erred in granting summary judgment on

       her vicarious liability claim. Under the doctrine of respondeat superior,

       vicarious liability will be imposed upon an employer whose employee commits

       a tort while acting within the scope of employment. Barnett v. Clark, 889

       N.E.2d 281, 283 (Ind. 2008). By definition, respondeat superior requires that

       there be an underlying tort in the first place and that the underlying tort be

       incidental to the employee’s authorized conduct or, to an appreciable extent,

       done to further the employer’s business. Id.


       Court of Appeals of Indiana | Opinion 49A02-1507-CT-986 | March 24, 2016   Page 20 of 21
[37]   Here, Ali did not allege any tort by an individual employee of Alliance. As for

       whether Logsdon’s conduct can be attributed to Alliance, we observe that

       Logsdon was not an employee of Alliance. He was sole owner and employee

       of LJL and was merely hired as an independent contractor to conduct an

       investigation of alleged thefts committed against Alliance’s home healthcare

       patients. We have long held that, subject to specific exceptions, a principal is

       not liable for the torts of independent contractors. Carie v. PSI Energy, Inc., 715

       N.E.2d 853, 855 (Ind. 1999). The exceptions, none of which apply here, are:

               (1) where the contract requires the performance of intrinsically
               dangerous work; (2) where the principal is by law or contract
               charged with performing the specific duty; (3) where the act will
               create a nuisance; (4) where the act to be performed will probably
               cause injury to others unless due precaution is taken; and (5)
               where the act to be performed is illegal.


       Id.

[38]   As previously discussed, Logsdon did not commit a tort. Thus, respondeat

       superior does not apply against any Appellees as a matter of law. Even if

       Logsdon’s conduct had amounted to an actionable tort, it would not be

       chargeable to Alliance. The trial court did not err in granting summary

       judgment on this issue. Accordingly, we affirm.


[39]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.



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