                                                                            FILED
                                                                        Oct 25 2018, 8:46 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Gregory W. Black                                           Thomas L. Davis
Plainfield, Indiana                                        Matthew R. King
                                                           Darren A. Craig
                                                           Frost Brown Todd, LLC
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Denny Alan Neff,                                           October 25, 2018
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           18A-PL-421
        v.                                                 Appeal from the Putnam Circuit
                                                           Court
Wal-Mart Stores East, LP,                                  The Honorable Matthew C.
Appellee-Defendant.                                        Kincaid, Special Judge
                                                           Trial Court Cause No.
                                                           67C01-1506-PL-187



Riley, Judge.




Court of Appeals of Indiana | Opinion 18A-PL-421| October 25, 2018                              Page 1 of 15
                                 STATEMENT OF THE CASE
[1]   Appellant-Plaintiff, Denny Alan Neff (Neff), appeals the trial court’s summary

      judgment in favor of Appellee-Defendant, Wal-Mart Stores East, L.P. (Wal-

      Mart), on Neff’s allegations sounding in negligence and tort and derived from

      his arrest and termination by Wal-Mart.


[2]   We affirm.


                                                    ISSUES
[3]   Neff presents us with six issues on appeal, which we restate as follows:


          (1) Whether the trial court properly entered summary judgment for Wal-

              Mart on Neff’s claim for breach of employment contract and wrongful

              termination when Neff was an employee at-will;

          (2) Whether the trial court properly entered summary judgment for Wal-

              Mart on Neff’s claim for false arrest, criminal confinement, tortious

              confinement, trespass against person, and false imprisonment when Wal-

              Mart detained Neff pursuant to the Shoplifting Detention Act;

          (3) Whether the trial court properly entered summary judgment for Wal-

              Mart on Neff’s claim for negligent infliction of emotional distress;

          (4) Whether the trial court properly entered summary judgment for Wal-

              Mart on Neff’s claim for intentional infliction of emotional distress;

          (5) Whether the trial court properly entered summary judgment for Wal-

              Mart on Neff’s claim for defamation; and



      Court of Appeals of Indiana | Opinion 18A-PL-421| October 25, 2018         Page 2 of 15
          (6) Whether the trial court properly entered summary judgment for Wal-

              Mart on Neff’s claim for invasion of privacy.


                       FACTS AND PROCEDURAL HISTORY
[4]   In September 2014, Neff worked as a service writer in the tire and lube express

      department at Wal-Mart, located in Greencastle, Indiana. When he entered his

      employment on July 25, 2013, Neff had received Wal-Mart’s written employee

      handbook setting forth the company’s policies. On September 24, 2014, Neff

      and service manager Anthony Brackett (Brackett) removed tires, described by

      Neff as “outdated and deleted,” from the service area. (Appellant’s App. Vol.

      III, p. 145). Service manager Travis Wilbur (Wilbur) then authorized the sale

      of those tires for ten dollars or one dollar each, depending on the tire. The

      actual retail price of the tires was at least five to ten times the discounted price.

      Wilbur claimed that assistant manager, Dana Lyday, had approved the

      discount. Neff, Brackett, and another Wal-Mart associate purchased the tires at

      the discounted price and they rang up the transactions for each other at the cash

      register.


[5]   The following day, September 25, 2014, Wal-Mart’s asset protection manager,

      Randall Spannuth (Spannuth), received his daily report reflecting any discounts

      greater than fifty dollars and noticed the steep discounts involved in the tire

      sale. Investigating the sale more closely, Spannuth pulled the receipts in the

      system, the electronic journal, and store videos. Based on this information, he

      identified the cashiers and talked to their managers about the “extremely

      discounted” price for the tires. (Appellant’s App. Vol. III, p. 38). Spannuth
      Court of Appeals of Indiana | Opinion 18A-PL-421| October 25, 2018           Page 3 of 15
      concluded “there was an issue” because the “tires were being sold for under

      what the retail price was,” and the “associates were discounting for each other.”

      (Appellant’s App. Vol. III, pp. 38-39). Spannuth determined that Neff had not

      followed Wal-Mart’s written Associate Purchase Policy which limits the

      merchandise its associates may purchase to merchandise “which is available to

      all Customers/Members.” (Appellant’s App. Vol. III, p. 177). Furthermore,

      the policy provides that “[o]nly salaried members of management can authorize

      the point-of-sale markdown,” and “[d]efective or damaged merchandise must

      have been marked down and offered to the public at a lower price for at least

      one day before any associate, or salaried member of management, including the

      Facility Manager, can purchase it.” (Appellant’s App. Vol. III, pp. 177-78).

      Pursuant to this policy, neither Neff nor Wilbur had authority to set the

      discounted price without prior managerial approval. When questioning the

      store managers, both managers informed Spannuth that they had not

      authorized the discounts or transactions. Because Spannuth determined that it

      was not reasonable for Neff to assume that he had properly purchased the tires,

      Spannuth concluded that Neff had intended to commit a theft of the tires.


[6]   At the close of the investigation and after consulting with his supervisor,

      Spannuth arranged for interviews with Wilbur, Brackett, and Neff. Neff’s

      interview occurred in an office in the back of the store. Following the

      interviews, Wal-Mart decided to report the three employees to the police for

      theft. After having been provided with a copy of Wal-Mart’s asset protection

      records, the video surveillance disk, and internal investigation, the police


      Court of Appeals of Indiana | Opinion 18A-PL-421| October 25, 2018        Page 4 of 15
      officers spoke with Neff, arrested him, and escorted him to jail. 1 Wal-Mart

      terminated Neff’s employment.


[7]   On June 5, 2015, Neff filed a Complaint against Wal-Mart, the City of

      Greencastle, and the Greencastle police department, in which he asserted

      thirteen causes of action. On June 26, 2017, the City of Greencastle and the

      Greencastle Police Department filed a motion for summary judgment which

      was granted by the trial court on December 7, 2017. Neff did not appeal.

      Subsequently, on June 20, 2018, the trial court dismissed the City of

      Greencastle and the Greencastle police department.


[8]   On September 14, 2017, Wal-Mart filed its motion for summary judgment,

      memorandum of law, and designation of evidence. On September 19, 2017,

      Neff filed his reply to Wal-Mart’s motion for summary judgment, together with

      a designation of evidence. On December 7, 2017, after a hearing, the trial court

      granted Wal-Mart’s motion and entered summary judgment in its favor. On

      January 2, 2018, Neff filed a motion to correct error, which was deemed denied

      on February 16, 2018.


[9]   Neff now appeals. Additional facts will be provided if necessary.


                                   DISCUSSION AND DECISION
                                                  I. Standard of Review




      1
          The record reflects that the State declined to bring criminal charges against Neff.


      Court of Appeals of Indiana | Opinion 18A-PL-421| October 25, 2018                        Page 5 of 15
[10]   In reviewing a trial court’s ruling on summary judgment, this court stands in the

       shoes of the trial court, applying the same standards in deciding whether to

       affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,

       891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we

       must determine whether there is a genuine issue of material fact and whether

       the trial court has correctly applied the law. Id. at 607-08. In doing so, we

       consider all of the designated evidence in the light most favorable to the non-

       moving party. Id. at 608. A fact is ‘material’ for summary judgment purposes if

       it helps to prove or disprove an essential element of the plaintiff’s cause of

       action; a factual issue is ‘genuine’ if the trier of fact is required to resolve an

       opposing party’s different version of the underlying facts. Ind. Farmers Mut. Ins.

       Grp. v. Blaskie, 727 N.E.2d 13, 15 (Ind. 2000). The party appealing the grant of

       summary judgment has the burden of persuading this court that the trial court’s

       ruling was improper. First Farmers Bank & Trust Co., 891 N.E.2d at 607. When

       the defendant is the moving party, the defendant must show that the undisputed

       facts negate at least one element of the plaintiff’s cause of action or that the

       defendant has a factually unchallenged affirmative defense that bars the

       plaintiff’s claim. Id. Accordingly, the grant of summary judgment must be

       reversed if the record discloses an incorrect application of the law to the facts.

       Id.


                                            II. Wrongful Termination


[11]   Neff first contends that the trial court erred when it granted summary judgment

       in favor of Wal-Mart on his claim of wrongful termination. Neff maintains that

       Court of Appeals of Indiana | Opinion 18A-PL-421| October 25, 2018            Page 6 of 15
       “[he], Wal-Mart, [h]ad a [d]eal. Though at Will, Wal-Mart [r]etained a [d]uty

       of [f]airness.” (Appellant’s Br. p. 32).


[12]   Indiana follows the doctrine of employment at-will, under which employment

       may be terminated by either party at-will, with or without reason. Baker v.

       Tremco Inc., 917 N.E.2d 650, 653 (Ind. 2009). There is a strong presumption

       that employment in Indiana is at-will. Harris v. Brewer, 49 N.E.3d 632, 639

       (Ind. Ct. App. 2015), trans. denied. Here, the designated evidence clearly

       establishes that Neff himself acknowledged that his employment was for an

       indefinite duration and was at-will. Accordingly, Wal-Mart’s termination of

       Neff did not breach any employment contract.


[13]   However, as pointed out by Neff, “[i]f an employment contract for an

       ascertainable term of employment does not exist, an exception to the

       employment-at-will doctrine may apply.” Id. at 640. Our supreme court has

       recognized three exceptions to the employment-at-will doctrine: (1) if an

       employee establishes that adequate independent consideration supports the

       employment contract; (2) if a clear statutory expression of a right or duty is

       contravened; and (3) if the doctrine of promissory estoppel applies. Id. Relying

       on the promissory estoppel doctrine, Neff must plead “the doctrine with

       particularity, demonstrating that the employer made a promise to the employee,

       the employee relied on the promise to his detriment, and the promise otherwise

       fits within the Restatement test for promissory estoppel.” Id. at 644. Besides a

       cursory mention that he is invoking the promissory estoppel exception, Neff

       fails to carry his burden of proof. See Ind. Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Opinion 18A-PL-421| October 25, 2018         Page 7 of 15
       Therefore, the trial court properly granted summary judgment to Wal-Mart on

       Neff’s claim.


                                          III. Shoplifting Detention Act


[14]   Next, Neff brings a host of allegations arising from his detention by Wal-Mart,

       to which Wal-Mart defends by relying on the probable cause provision of the

       Shoplifting Detention Act. Claiming that Wal-Mart had no probable cause to

       detain him on a suspicion of theft, Neff contends that the trial court erred by

       issuing summary judgment to Wal-Mart on his claims of false arrest, criminal

       confinement, tortious confinement, trespass against person, and false

       imprisonment.


[15]   Wal-Mart invoked immunity under the Shoplifting Detention Act, Indiana

       Code section 35-33-6-2, against Neff’s allegations, which provides, in pertinent

       part, that:


               (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


                     (1) may:


                     (A) Detain the person and request the person to identify
                         himself;


                     (B) Verify the identification;



       Court of Appeals of Indiana | Opinion 18A-PL-421| October 25, 2018       Page 8 of 15
                    (C) Determine whether the person has in his possession
                        unpurchased merchandise taken from the store;


                    (D) Inform the appropriate law enforcement officers; and


                    (E) Inform the parents or others interested in the person’s
                        welfare, that the person has been detained.


               ****


               (c) The detention must:


                    (1) Be reasonable and last only for a reasonable time; and


                    (2) Not extend beyond the arrival of a law enforcement officer
                        or two (2) hours, whichever occurs first.


       The Shoplifting Detention Act “permits the merchant’s agent to effect a

       warrantless arrest or detention where the facts and circumstances known to the

       agent at the time of the arrest would warrant a person of reasonable caution to

       believe the arrestee has committed or is committing a theft on or about the

       store.” Dietz v. Finlay Fine Jewelry Corp., 754 N.E.2d 958, 967 (Ind. Ct. App.

       2001). When probable cause to detain is present, detention is lawful. See 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 which was lawful under section 2 of

       this chapter.”)


[16]   At the time of Wal-Mart’s detention of Neff, Spannuth had completed his

       investigation. He had pulled the receipts in the system and viewed the store
       Court of Appeals of Indiana | Opinion 18A-PL-421| October 25, 2018         Page 9 of 15
       videos. He had identified the cashiers and spoken with the managers about

       possible authorization to sell and purchase the steeply discounted tires. Based

       on this evidence, Spannuth, as Wal-Mart’s agent, could reasonably believe that

       Neff that intentionally sold and purchased the tires at a price less than that

       approved by Wal-Mart with the intent to deprive Wal-Mart of part of its value.

       That constitutes probable cause for purposes of the Shoplifting Detention Act.

       See Dietz, 754 N.E.2d at 968. This alone, however, does not mean the test of

       reasonableness in manner and time has been met in this case. See I.C. § 35-33-

       6-2(c)(1)-(2).


[17]   Turning to the reasonableness of the manner and time of detention by Wal-

       Mart, the designated evidence established that Neff’s interview occurred in an

       office in the back of the store, out of view of Wal-Mart’s customers. Following

       the interviews, Wal-Mart decided to report the three employees to the police for

       theft and contacted the local authorities. Neff acknowledged that he was

       detained at the store for between sixty and eighty minutes, much less than the

       two-hour timeframe contemplated by the Act. See I.C. 35-33-6-2(c).


[18]   Neff now attempts to avoid the immunity awarded to Wal-Mart by the

       Shoplifting Detention Act by referencing his continued and repeated assertions

       of innocence and protestations of belief that Wilbur had authorized the sale.

       However, the relevant issue is not whether Neff committed the theft, but

       whether Wal-Mart had probable cause to believe that Neff committed theft.

       Furthermore, “the fact remains that our legislature has determined that a

       merchant’s property rights must be protected, even at the risk of offending

       Court of Appeals of Indiana | Opinion 18A-PL-421| October 25, 2018       Page 10 of 15
       people who are ultimately innocent of any wrongdoing. The boundaries within

       which merchants must conduct themselves during such detainments and

       searches are those of reasonableness.” Wal-Mart Stores, Inc. v. Bathe, 715 N.E.2d

       954, 962 (Ind. Ct. App. 1999), trans. denied. As such, the Act does not

       immunize a merchant from liability for negligence based upon allegations that

       it conducted an unreasonable search. Although reasonableness is generally a

       question for the factfinder to decide, we are of the opinion that if a jury were

       permitted to decide that Wal-Mart’s actions in the instant case were

       unreasonable, then the immunity provided by the Act would be illusory indeed

       as any protestation of innocence by the suspected shoplifter would be sufficient

       to destroy the statutory immunity. See id. Accordingly, as Wal-Mart’s actions

       were reasonable under the Act, the store is immune to any civil claims brought

       by Neff and we affirm the trial court’s summary judgment on these claims. See

       I.C. § 35-33-6-4.


                                IV. Negligent Infliction of Emotional Distress


[19]   Relying on the modified impact rule, Neff maintains that the trial court erred by

       granting summary judgment to Wal-Mart on his claim for negligent infliction of

       emotional distress.


[20]   To establish a claim of negligent infliction of emotional distress, a plaintiff must

       satisfy the requirements of either the modified impact rule or the bystander rule.

       Atlantic Coast Airlines v. Cook, 857 N.E.2d 989, 998 (Ind. 2006). Under the

       modified impact rule, a plaintiff may seek damages for negligent infliction of


       Court of Appeals of Indiana | Opinion 18A-PL-421| October 25, 2018        Page 11 of 15
       emotional distress if he suffers “a direct impact by the negligence of another

       and, by virtue of that direct involvement sustains an emotional trauma which is

       serious in nature and of a kind and extent normally expected to occur in a

       reasonable person[.]” Shuamber v. Henderson, 579 N.E.2d 452, 456 (Ind. 1991).

       Thus, a plaintiff who proceeds under the modified impact rule must plead that

       he suffered a direct physical impact. Atlantic Coast Airlines, 857 N.E.2d at 996.

       The direct impact referred to by Neff is being “touched by the arm from the

       store. Police escort from Wal[-]Mart en route to jail.” (Appellant’s Br. p. 33).

       However, these actions complained of were taken by Greencastle police

       officers, and not by Wal-Mart. In fact, Neff cannot point to any direct physical

       impact by Wal-Mart or its agents. Accordingly, we affirm the trial court’s

       summary judgment in favor of Wal-Mart.


                                V. Intentional Infliction of Emotional Distress


[21]   Besides negligent infliction of emotional distress, Neff also claims intentional

       infliction of emotional distress. Pointing to Spannuth’s refusal to accept his

       protestations of innocence and offers to return the tires or pay the full price,

       Neff maintains that “[e]motional damage comes from public arrest, jailing, the

       ruination of employment prospect, the mental anguish”—“[o]ne would think

       fellow employees would at least grant a colleague the benefit of the doubt.”

       (Appellant’s Br. p. 33).


[22]   Intentional infliction of emotional distress is committed by one who by extreme

       and outrageous conduct intentionally or recklessly causes severe emotional


       Court of Appeals of Indiana | Opinion 18A-PL-421| October 25, 2018         Page 12 of 15
       distress to another. Ledbetter v. Ross, 725 N.E.2d 120, 123-24 (Ind. Ct. App.

       2000). Liability will only be found where the defendant’s conduct has been

       extreme and outrageous. Branham v. Celadon Trucking Servs., Inc., 744 N.E.2d

       514, 523 (Ind. Ct. App. 2001), trans. denied. It is not enough that the defendant

       has acted with an intent which is tortious or even criminal, or that his conduct

       has been characterized by malice or a degree of aggravation which would

       entitle the plaintiff to punitive damages for another tort. See id. Rather, the

       conduct must be “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.” Id.


[23]   In Dietz, an employee was investigated for giving a customer an unauthorized

       discount. Dietz, 754 N.E.2d at 963-64. The employee asserted that the security

       manager who interviewed her accused her of substance abuse, shoplifting, and

       dishonesty in a gruff and intimidating manner. Id. at 970. We concluded that

       the employee’s claim for intentional infliction of emotional distress failed as a

       matter of law because the security manager’s “actions in this case [did] not

       constitute outrageous behavior.” Id.


[24]   Likewise here, we cannot conclude as a matter of law that Spannuth’s conduct

       exceeded “all bounds usually tolerated by a decent society.” See id. Wal-Mart

       acted reasonably as permitted under the Shoplifting Detention Act. It

       investigated whether a crime was committed, collected the available evidence,

       and interviewed the persons involved. Only after a thorough investigation was

       concluded did Wal-Mart inform the suspects that it had probable cause to

       Court of Appeals of Indiana | Opinion 18A-PL-421| October 25, 2018       Page 13 of 15
       believe a crime had been committed and that it was calling the local police

       department. None of these actions constitute the extreme and outrageous

       conduct necessary to establish a claim for intentional infliction of emotional

       distress. Therefore, we affirm the trial court’s summary judgment on this claim.


                                                  VI. Defamation


[25]   Next, Neff asserts that there are genuine issues of material fact precluding

       summary judgment on his defamation claim. Specifically, in a five-line

       argument Neff contends that Wal-Mart “brought about the newspaper item

       [Neff] was arrested for theft[.]” (Appellant’s Br. p. 31).


[26]   To establish a claim of defamation, a plaintiff must establish (1) the existence of

       a communication with defamatory imputation, (2) malice, (3) publication, and

       (4) damages. Wartell v. Lee, 47 N.E.3d 381, 384 (Ind. Ct. App. 2015), trans.

       denied. As the local newspaper published the communication Neff now

       complains about, Neff cannot bring a defamation claim against Wal-Mart. We

       affirm the summary judgment.


                                             VII. Invasion of Privacy


[27]   Lastly, Neff asserts that Wal-Mart invaded his privacy by unreasonably

       intruding upon his seclusion and by false light publicity. Besides identifying

       these two specific “branches” of the general tort of invasion of privacy, Neff

       supports his claim by maintaining merely that “[f]orcing [Neff] to jail, making

       known he is arrested for theft, invade privacy when unwarranted circumstances


       Court of Appeals of Indiana | Opinion 18A-PL-421| October 25, 2018       Page 14 of 15
       visited on plaintiff falsely are portrayed by tortfeasor.” (Appellant’s Br. p. 31).

       As Neff failed to support his argument with cogent reasoning as to the

       application of the doctrine to the designated evidence, he waived his contention

       for our review. See Ind. Appellate Rule 46(A)(8)(a).


                                              CONCLUSION
[28]   Based on the foregoing, we hold that the trial court properly entered summary

       judgment in favor of Wal-Mart on Neff’s allegations sounding in negligence

       and tort and based on his arrest and termination by Wal-Mart.


[29]   Affirmed.


[30]   Vaidik, C. J. and Kirsch, J. concur




       Court of Appeals of Indiana | Opinion 18A-PL-421| October 25, 2018        Page 15 of 15
