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                 ARKANSAS COURT OF APPEALS

                                       DIVISION III
                                         CV-15-592
                                       No.


                                                Opinion Delivered:   APRIL 20, 2016
DANIEL PATRICK AND
MARY PATRICK                            APPEAL FROM THE WASHINGTON
                             APPELLANTS COUNTY CIRCUIT COURT
                                        [NO. CV-14-994]
V.
                                                HONORABLE CRISTI BEAUMONT,
                                                JUDGE
TYSON FOODS, INC., WOODY L.
DOSS, AND GREGORY CLARK
                      APPELLEES AFFIRMED


                            KENNETH S. HIXSON, Judge

       Appellant Daniel Patrick appeals the entry of summary judgment against him in his

lawsuit against appellees Tyson Foods, Inc. (“Tyson”), Woody L. Doss, and Gregory O.

Clark. 1 Appellant filed a complaint in the Circuit Court of Washington County, Arkansas,

seeking damages for alleged malicious prosecution, defamation of character, and outrage.

Appellant’s allegations arose from the following brief summary of the facts. Appellant was

a long-time employee at Tyson’s Springdale, Arkansas, plant until he was terminated after a

February 2012 ammonia leak inside the plant. An internal investigation led by Tyson’s

security department investigators, Woody Doss and Gregory Clark, led Tyson to conclude

that the ammonia leak was most likely caused by appellant and another employee tampering


       1
         Daniel’s wife Mary Patrick was also a plaintiff in this lawsuit. Mary’s claims in the
lawsuit were dismissed at the trial court level and are not advanced as issues on appeal.
Although Mary is listed as an appellant in the caption of this case, we need not and do not
discuss Mary as a named appellant.
                                Cite as 2016 Ark. App. 221


with plant equipment.      Upon request, Tyson provided its investigative materials to

the Springdale Police Department. The investigative materials included a video of the

work area where and when the ammonia leak occurred and the internal investigators’

interpretation of what appellant appeared to be doing on the video. The police forwarded

the Tyson investigation materials to the Washington County prosecutor. The county

prosecutor subsequently filed charges against appellant in April 2012 for second-degree

criminal mischief and ten counts of third-degree battery committed against other Tyson

employees who were exposed to the ammonia gas. The prosecutor nolle prossed the charges

four months later in August 2012.

       Appellant filed his civil complaint in June 2014.        The primary accusation in

appellant’s complaint was that the Tyson investigators wrongly informed law enforcement

that the video showed him behaving in a criminal fashion when, in reality, the video only

showed that appellant was performing the routine tasks of his job. Appellees subsequently

filed a motion for summary judgment in December 2014, contending that appellant could

not establish all the elements of the alleged torts, nor could he prove any damages

proximately caused by the alleged torts. Appellees attached affidavits, deposition testimony,

the Tyson internal investigative video and report, and the Washington County criminal-

charge documents. Appellant filed a response in opposition to summary judgment. The

trial court determined that appellees were entitled to judgment as a matter of law and granted

summary judgment. This appeal followed, and appellant contends that the trial court erred

in dismissing his complaint. We disagree and affirm.



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                                     I. Standard of Review

          The standard of review in the appeal of a summary judgment is well settled.

Summary judgment is to be granted by a circuit court only when it is clear that there are

no genuine issues of material fact to be litigated and the moving party is entitled to judgment

as a matter of law. Benton Cnty. v. Overland Dev. Co., 371 Ark. 559, 268 S.W.3d 885

(2007).    Once a moving party has established a prima facie entitlement to summary

judgment, the opposing party must meet proof with proof and demonstrate the existence of

a material issue of fact. Id. On appeal, we determine if summary judgment was appropriate

based on whether the evidentiary items presented by the moving party in support of its

motion leave a material fact unanswered. Id. This court views the evidence in the light

most favorable to the party against whom the motion was filed, resolving all doubts and

inferences against the moving party. Id. Our review is not limited to the pleadings, as we

also focus on the affidavits and other documents filed by the parties. Id. Conclusory

allegations are, however, insufficient to create a fact issue in a summary-judgment situation.

Sundeen v. Kroger, 355 Ark. 138, 133 S.W.3d 393 (2003). After reviewing undisputed facts,

summary judgment should be denied if, under the evidence, reasonable men might reach

different conclusions from those undisputed facts. Greenlee v. J.B. Hunt Transport Servs., Inc.,

2009 Ark. 506, 342 S.W.3d 274; Sawada v. Walmart Stores, Inc., 2015 Ark. App. 549, 473

S.W.3d 60. The object of summary judgment is not to try the issues but to determine

whether there are any issues to be tried. Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563,

11 S.W.3d 531 (2000).



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                             II. Statement of Evidence and Facts

       A more amplified recitation of the underlying facts is necessary prior to our

consideration of the arguments on appeal. In the early morning of February 6, 2012, an

ammonia leak at the Tyson plant resulted in the plant being evacuated. Several law

enforcement officers, fire department personnel, and emergency services personnel were

dispatched to the scene. Ten Tyson plant employees were taken to the hospital for

treatment of inhalation injuries. A Springdale police officer, working in conjunction with

an FBI Task Force, contacted Tyson because the Springdale fire department had concerns

about whether the ammonia release could have possibly been a terroristic act. Doss, one of

Tyson’s corporate security managers, responded to the Springdale police officer that Tyson

was of the initial opinion that the event was caused by an accidental ammonia release. The

police officer advised Doss to report to him if Tyson later determined that the leak was not

accidental.

       Tyson immediately commenced an internal investigation to determine the root cause

of the ammonia release. The investigation revealed that pressure gauges indicated increased

pressure in an ammonia refrigeration line shortly before the leak. It was determined that

the ammonia release was caused by a partially open valve and a missing plug in a pipe located

on the vacuum side of the ammonia-based refrigeration system. The partially open valve

and the missing plug ultimately allowed for the ammonia to be released into the plant.

       Appellant’s work station was in the same area of the plant as the open valve and

missing plug. The plant had previously installed ceiling-mounted security cameras. One of

the security cameras covered appellant’s general work area and the valve. During the

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investigation, Doss and other Tyson management personnel 2 reviewed the video and

observed a maintenance mechanic spending what they perceived as an unusual amount of

time repetitively and unnecessarily adjusting and testing plant equipment near the ammonia

line. The actual valve on the ammonia line was not quite visible on the video due to the

location and sight line of the video camera. Another employee was observed walking

behind the maintenance mechanic while carrying and opening a bottle, an item not

permitted in this area of the plant. The maintenance mechanic was then observed moving

toward the valve area, and the other employee was seen bending over the valve area. Tyson

investigative personnel concluded that the maintenance mechanic was attempting to shield

the other employee from view and acting as a lookout, while the other employee attempted

to remove ammonia from the valve. The other employee subsequently appeared startled,

stood up, and quickly walked away while putting the top back on the bottle. Tyson’s

investigators opined that due to insufficient time, there was a failure to fully close the valve,

which subsequently caused the leak. After additional investigation, Tyson identified the

maintenance mechanic in the video as the appellant, Daniel Patrick.

       As previously and specifically requested by the Springdale police officer, Doss

reported to the Springdale police that the ammonia release no longer appeared to be

accidental. In subsequent affidavits submitted with the motion for summary judgment,

Clark and Doss swore that an FBI agent and a Springdale police officer came to the plant to


       2
          The Tyson personnel included corporate counsel Chris Mitchell, plant safety
manager David Smith, complex environmental health and safety manager Patrick Abshire,
human resource director Hector Gonzalez, assistant plant manager Matt Evans, and
refrigeration superintendent James L. Richardson.
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view the security video. According to Doss’s affidavit, the police officer who viewed the

videotape opined that this was an attempt to steal ammonia for the purpose of manufacturing

drugs. Doss and Clark interviewed appellant and the other employee seen on the video,

both of whom denied any wrongdoing.

       Doss and Clark subsequently prepared a special internal investigative report on this

ammonia release, a typical practice for Tyson’s internal use. Doss and Clark relied on the

information provided by the plant management in compiling the report. Neither Doss nor

Clark knew either appellant or the other Tyson employee shown on the video prior to

interviewing them.     Each page of Doss and Clark’s report was marked “TYSON

CONFIDENTIAL.”

       A Springdale police detective contacted Doss and made a formal request for a copy

of the internal investigative report and other material. Doss obtained approval from the

Tyson in-house corporate counsel and delivered the investigative report to the Springdale

police. A copy of the security video was contained in the delivered material.

       Tyson subsequently terminated appellant from employment on February 10, 2012,

based on Tyson’s internal investigation. Neither Doss nor Clark was involved in the

decision to terminate appellant.

       On April 9, 2012, the prosecutor charged appellant in Washington County Circuit

Court with criminal mischief and battery. The affidavit for the issuance of the arrest warrant

was completed by Detective Eric Evans of the Springdale Police Department and it was

based, in part, on the material provided by Tyson. Washington County Deputy Prosecuting

Attorney Brian Lamb approved the detective’s affidavit, and District Judge Ray Reynolds

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signed the warrant finding that the affidavit demonstrated “reasonable and probable cause

for the issuance of a warrant of arrest.” The criminal information was filed the same date,

April 9, 2012. Four months later, on August 10, 2012, the deputy prosecutor moved to

nolle prosequi the criminal charges, and the circuit judge approved the dismissal of charges.

       Two years later, in June 2014, appellant filed his civil complaint. The complaint

alleged that appellant had worked for Tyson for over twenty years, that the Tyson plant had

experienced multiple chemical releases over those years resulting in governmental action,

and that Tyson intentionally blamed him for the ammonia leak in order to have a scapegoat

by using falsified accounts of what the video revealed. Appellant recited seven particular

characterizations of his behavior at work that he believed were false, given a review of the

video itself. For example, appellant stated that the video did not show anyone with a

container or opening or closing one, nor did it show anyone bending over the valve or

standing up quickly from the valve. Appellant accused Tyson of malicious prosecution

based on the “false and outrageous report as to what the video showed,” which was made

“with malice and without probable cause.”         Appellant’s complaint accused Tyson of

defamation of character because Tyson maliciously and knowingly gave “false oral and

written statements [that] were published broadly to superiors at Tyson Foods, Inc., to the

Springdale Police Department, to prosecution officials, and to newspaper and television

reporters and to the general public.” Appellant’s complaint also alleged the tort of outrage

based on the “false statements and misrepresentations, as well as the harsh personal treatment

visited upon [appellant] by Doss and Clark.” He contended that Tyson’s behavior caused

him damages, including costs incurred to defend against the criminal charges; loss of past

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and future wages and benefits due to wrongful discharge; extreme emotional pain, anguish,

distress, depression, embarrassment, and humiliation; and damage to his reputation in the

community. Each appellee filed separate answers, denying that their acts were anything

other than appropriate internal investigations done in good faith and stating that law

enforcement independently sought Tyson’s information and determined that criminal

charges should be pursued. Each appellee responded that appellant was an at-will employee,

that appellant suffered no compensable damages, that they were entitled to the advice-of-

counsel defense, that they had a qualified privilege to communicate about the ammonia leak

at the Tyson plant, that they acted without malice, and that their statements about appellant

were truthful.

       After the civil lawsuit was filed, discovery proceeded. In December 2014, appellees

moved for summary judgment on all three causes of action. Appellees asserted that as to

malicious prosecution, appellant failed to prove the essential elements of malicious

prosecution and further, that they were entitled to the defense of advice of counsel.

Appellees asserted that as to defamation, they possessed a qualified privilege to communicate

to law enforcement officials regarding the release of ammonia gas at the plant. Appellees

asserted that as to outrage, even if every allegation made by appellant were true, the

allegations did not rise to the level necessary to sustain a lawsuit for the tort of outrage.

Appellees presented supportive documentation, including multiple affidavits from Tyson

management personnel, affidavits from Doss and Clark, termination paperwork related to

appellant, portions of appellant’s deposition, the internal investigative report and video, and

the filings related to the criminal charges. In resistance, appellant’s primary contention was

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that Tyson personnel, including Doss and Clark, mischaracterized and falsely stated to law

enforcement their interpretation of what the security video showed. Stated another way,

appellant asserted that Tyson told law enforcement that appellant was engaged in suspicious

and perhaps criminal activity when in reality appellant was merely doing his job. Appellant’s

response was accompanied by his own affidavit in which appellant listed nine

“misrepresentations of fact” that showed a variance between what Tyson’s investigative

report recited and what he perceived the video actually showed. Notably, though, appellant

attached the affidavit of the deputy prosecuting attorney. In that affidavit, the prosecuting

attorney swore that he was provided Springdale police reports, Tyson’s special investigation

report, and the security video and then witnessed the Springdale police detective sign the

affidavit for the issuance of the arrest warrant.

       In granting summary judgment on malicious prosecution, the trial court found that

(1) appellees provided all the information collected during their investigation to law

enforcement, entitling appellees to the defense of advice of counsel; (2) there was no

evidence of malice; and (3) probable cause was found to exist. As to defamation, the trial

judge found that appellees, as appellant’s employer, were entitled to a qualified privilege,

that the publication was to law enforcement only, and that the disclosure was based on first-

hand knowledge.      The trial judge found that the communication was exercised in a

reasonable manner and for a proper purpose and that appellant had not presented any

evidence that the privilege was abused in any fashion or was based on falsehoods. As to

outrage, the trial judge entered summary judgment on the basis that this narrowly construed

tort was particularly limited in the context of at-will-employee discharge, and further that

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appellant presented no evidence of the outrageous conduct required at law. (The trial court

also granted summary judgment on appellant’s wife’s claim of loss of consortium, a derivative

claim not relevant on appeal.) We now examine each of the three torts allegedly committed

by appellees and whether the trial court erred in granting summary judgment.

                                        III. Analysis

                                 A. Malicious Prosecution

       To establish a claim for malicious prosecution, a plaintiff must prove five elements:

(1) a proceeding instituted or continued by the defendant against the plaintiff;

(2) termination of the proceeding in favor of the plaintiff; (3) absence of probable cause for

the proceeding; (4) malice on the part of the defendant; and (5) damages. Sundeen, 355 Ark.

at 142, 133 S.W.3d at 395. The failure of one element renders a malicious-prosecution case

defunct. Jones v. McLemore, 2014 Ark. App. 147, 432 S.W.3d 668.

       The trial court’s summary-judgment order recites that probable cause was found to

exist. Probable cause for prosecution must be based on the existence of facts or credible

information that would induce the person of ordinary caution to believe the accused person

to be guilty of the crime for which he is charged. Wal-Mart Stores, Inc. v. Binns, 341 Ark.

157, 163, 15 S.W.3d 320, 324 (2000). The test for determining probable cause is an

objective one. Wal-Mart Stores, Inc. v. Yarbrough, 284 Ark. 345, 681 S.W.2d 359 (1984).

Ordinary caution is a standard of reasonableness. See McMullen v. McHughes Law Firm, 2015

Ark. 15, at 15–16, 454 S.W.3d 200, 210. In making a probable-cause determination in the

context of a malicious-prosecution suit, the court generally “concentrates on the facts before

the action commenced.” Sundeen, 355 Ark. at 145, 133 S.W.3d at 397; see also Coombs v.

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Hot Springs Village Prop. Owners Ass’n, 98 Ark. App. 226, 233, 254 S.W.3d 5, 11 (2007).

Malice has been defined as any improper or sinister motive for instituting the suit. Sundeen,

supra. Malice can be inferred from the lack of probable cause. Wal-Mart Stores, Inc. v.

Williams, 71 Ark. App. 211, 29 S.W.3d 754 (2000). When, however, probable cause exists

and there is no strong evidence of malice, a charge of malicious prosecution cannot succeed.

Sundeen, supra.

       The prosecutor charged appellant with second-degree criminal mischief pursuant to

Arkansas Code Annotated section 5-38-204(a)(2). Subsection (a)(2) defines second-degree

criminal mischief as being committed when a person “purposely tampers with any property

of another person and by the tampering causes substantial inconvenience to the owner or

another person.” See Coombs, supra (discussing probable cause for second-degree criminal

mischief in the context of malicious-prosecution claim). The prosecutor also charged

appellant with third-degree battery pursuant to Arkansas Code Annotated section 5-13-

203(a)(2), which is committed when a person “recklessly causes physical injury to another

person.” A person is “reckless” under our criminal code when he “consciously disregards a

substantial and unjustifiable risk that the attendant circumstances exist or the result will

occur.” Ark. Code Ann. § 5-2-202(3)(A).

       On appeal, appellant contends that Tyson misrepresented appellant’s activities in the

internal report provided to law enforcement, which fabricated the basis for finding probable

cause and shows malice on Tyson’s part. Appellant does not challenge the existence of any

particular element of the crimes for which he was charged. Appellant asserts only that the

video does not manifest a reasonable basis on which to believe that he assisted in tampering

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with the ammonia valve that undisputedly caused physical injury. Appellant, however,

concedes that there is “no contest as to the identity or accuracy of the video recording” or

that it was provided to law enforcement prior to charges being filed. The affidavit of the

deputy prosecutor attests that he was provided a copy of Tyson’s investigative report. The

affidavits provided by Doss and Clark both swore that a Springdale police officer came to

the Tyson plant and viewed the security video; this occurred prior to the preparation of the

Tyson investigative report and tender of the report and video to police. The police officer’s

viewing the video at the plant was also confirmed by the affidavits of two safety managers

employed at the Tyson plant. The police officer opined at the time he viewed the video

that it showed criminal activity.

       Appellant’s contention that the video and the investigative report can be interpreted

differently does not mean that appellant showed evidence of a lack of probable cause.

Appellees internally were of the opinion, mistakenly or not, that appellant was involved in

a nonaccidental ammonia leak. Appellees did not seek out law enforcement but instead

complied with law enforcement’s initiation of contact and requests for information.

Appellees, the Springdale police, and the prosecutor could reasonably have believed that

appellant was involved with purposely tampering with plant equipment, which caused

substantial inconvenience and physical injury and that the appellant recklessly caused

physical injury to the ten Tyson employees who were treated for ammonia-gas inhalation.

This satisfied the requirement of probable cause to believe that appellant committed the

crimes for which he was charged. See Pourmedhi v. Nw. Nat’l Bank, 849 F.2d 1145 (8th



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Cir. 1988) (summary judgment proper, dismissing malicious-prosecution claim due to there

being no genuine issue of material fact on the absence of probable cause).

       Furthermore, appellant presented only conclusory allegations without any evidence

or facts to support the existence of a genuine issue of material fact on the element of malice.

Without meeting proof with proof on the element of malice, appellant’s claim of malicious

prosecution fails. Compare Sundeen, supra. Given the existence of probable cause and lack

of evidence of malice, the trial court did not err in entering summary judgment on malicious

prosecution in this case. Compare Sawada v. Walmart Stores, Inc., 2015 Ark. App. 549, 473

S.W.3d 60; McWilliams v. Schmidt, 76 Ark. App. 173, 61 S.W.3d 898 (2001).

       We hasten to add that as to the first element of malicious prosecution, appellant failed

to present any evidence that appellees “instituted or continued” the criminal proceedings.

It is true that when the information given to a prosecutor is known by the giver to be false,

then an intelligent exercise of the prosecutor’s discretion becomes impossible, and a

prosecution based on it is procured by the person giving the false information. Bank of

Eureka Springs v. Evans, 353 Ark. 438, 109 S.W.3d 672 (2003). Here, however, appellees

provided all the information that they possessed, and appellees presented unrebutted

evidence that they in good faith believed the information to be accurate. In contrast,

appellant relied on mere accusations that the conclusions drawn from the information by

the appellees were false. The police, the prosecutor, the trial court, and our court were all

provided the admittedly accurate video to compare against appellees’ internal investigative

report. We cannot say that the trial court erred in drawing the only reasonable conclusion

that there was a full, fair, truthful disclosure of all facts known to Tyson. This necessarily

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means that appellees did not “institute” the criminal prosecution. See 52 Am. Jur. 2d

Malicious Prosecution § 23 (noting that to charge a private person with the responsibility for

initiation of proceedings by a public official, it must appear that his desire to have the

proceedings initiated was the determining factor in the official’s decision to commence the

prosecution or that the information acted upon was known to be false by the information

provider, citing Pratt v. Kilborn Motors, Inc., 363 N.E.2d 452 (Ill. App. Ct. 1977)).

       Even had appellant met proof with proof on all the elements of malicious

prosecution, we would still affirm. Acting on the advice of counsel is a defense to a charge

of malicious prosecution. Family Dollar Trucking, Inc. v. Huff, 2015 Ark. App. 574, 474

S.W.3d 100. In order to avail oneself of this defense, one must have made a full, fair, and

truthful disclosure of all facts known to him and acted in good faith on counsel’s advice. Id.

The proponent of the defense bears the burden to establish it by a preponderance of the

evidence. Eggleston v. Ellis, 291 Ark. 317, 724 S.W.2d 462 (1987). The rule that affords a

defense to an action for malicious prosecution for one who has acted on the advice of

counsel applies with greater force if the proceeding was instituted on the advice and approval

of the state’s prosecuting attorney. 52 Am. Jur. 2d Malicious Prosecution § 107. If one in

good faith fully and fairly discloses to an attorney or the prosecutor all the information he

has and is advised that a crime was committed, then he has made out a complete defense

to an action for malicious prosecution. Id. When one makes such a disclosure to the

prosecutor and follows the prosecuting attorney’s advice, the law conclusively presumes the

existence of probable cause, the lack of which is a necessary element in a suit for malicious

prosecution. See Jennings Motors v. Burchfield, 182 Ark. 1047, 34 S.W.2d 455 (1931)

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(malicious prosecution reversed where, even though Burchfield accused Jennings’s officials

of making untruthful accusations to its own attorney and the prosecutor, Jennings presented

testimony that it merely provided what evidence it had to both attorneys).

       Appellant argues in his brief that appellees should not be entitled to the defense

because appellees did not provide a full, fair, and truthful account of what appellant was

observed doing on the video, contending that the police officer must not have viewed the

security video prior to seeking criminal charges. We disagree. The undisputed facts are

that the prosecutor, not Tyson, filed and pursued legal proceedings against appellant after

receiving all the information garnered by Tyson in its investigation. This information

included the security video that—according to appellant—clearly and accurately sets forth

appellant’s activities on the morning in question. Any perceived contradictions between

the internal investigative report and the security video provided by Tyson at the request of

law enforcement were for law enforcement to assess. Tyson presented affidavits swearing

that a Springdale police officer viewed the video himself prior to the report even being

prepared and ultimately tendered to law enforcement. In summary, we hold that the trial

court did not err in entering summary judgment in favor of Tyson on malicious prosecution.

Compare Sawada, supra.

                                       B. Defamation

       To recover for defamation, a plaintiff must prove six elements: (1) the defamatory

nature of the statement of fact; (2) the statement’s identification of or reference to the

plaintiff; (3) publication of the statement by the defendant; (4) the defendant’s fault in the

publication; (5) the statement’s falsity; and (6) the damages suffered by the plaintiff. See

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Superior Fed. Bank v. Mackey, 84 Ark. App. 1, 129 S.W.3d 324 (2003). A viable action for

defamation turns on whether the communication or publication tends or is reasonably

calculated to cause harm to another’s reputation. Addington v. Wal-Mart Stores, Inc., 81 Ark.

App. 441, 105 S.W.3d 369 (2003). A plaintiff must prove that defamatory statements have

been communicated to others and that the statements have detrimentally affected those

relations. Lancaster v. Red Robin Int’l, Inc., 2011 Ark. App. 706, 386 S.W.3d 662.

       The law recognizes that a potentially defamatory communication may not impose

liability under the qualified-privilege doctrine. A statement may become privileged when

made in good faith and in reference to a subject matter in which the communicator has an

interest or duty and to a person having a corresponding interest or duty. See Wal-Mart

Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634 (2002). For example, negligently reporting

activity thought to be criminal is usually a privileged communication. See DeHart v. Wal-

Mart Stores, Inc., 328 Ark. 579, 946 S.W.2d 647 (1997). But even if a statement may possibly

be privileged, the speaker who steps outside the privilege, or abuses it, loses it. Navorro-

Monzo v. Hughes, 297 Ark. 444, 763 S.W.2d 635 (1989). The qualified-privilege doctrine

does not extend to published statements that have no relation to the protected interest, and

it is lost if the publication is not made for the purpose of furthering a common interest. Id.

The qualified privilege may also be lost if it is abused by excessive publication, if the

statement is made with malice, or if the statement is made with a lack of grounds for belief

in the truth of the statement. Superior Fed. Bank, supra.

       Applying the law related to defamation to this appeal, we hold that the trial court

did not err in entering summary judgment on behalf of appellees. Assuming arguendo that

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all six elements of defamation were sufficiently supported by evidence in order to survive

summary judgment, the trial court did not err in finding that Tyson was protected by the

qualified privilege afforded to an employer.       Tyson responded to a request by law

enforcement by delivering material that was created as a confidential internal corporate

investigative report to determine the root cause of the ammonia leak. The response to law

enforcement was factual, necessary, and not excessive. Appellees demonstrated a prima facie

case of entitlement to this qualified privilege, and appellant failed to meet proof with proof

to demonstrate that there was any basis to bar appellees from the benefit of the qualified

privilege. We affirm on this point.

                                        C. Outrage

       The tort of outrage—also known as intentional infliction of emotional distress—

opens an actor up to civil liability for committing extreme and outrageous behavior. See

McQuay v. Guntharp, 331 Ark. 466, 470, 963 S.W.2d 583, 585 (1998). Arkansas courts

have consistently taken a narrow view in recognizing claims for the tort of outrage. Family

Dollar Trucking, Inc., supra. Our supreme court has taken great care to point out that this

tort does not make actionable every insult or indignity one must endure in life. Dillard

Dep’t Stores, Inc. v. Adams, 315 Ark. 303, 867 S.W.2d 442 (1993). This tort provides a basis

for recovery only for conduct that is so outrageous in character and so extreme in degree as

to go beyond all possible bounds of decency, to be regarded as atrocious, and to be utterly

intolerable in a civilized society. M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681

(1980). This tort is not easily established; merely describing conduct as outrageous does not



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make it so. Cordes v. Outdoor Living Ctr., Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). This

tort has four elements:

       (1) the actor intended to inflict emotional distress or knew or should have known
       that emotional distress was the likely result of his conduct;
       (2) the conduct was “extreme and outrageous,” was “beyond all possible bounds of
       decency,” and was “utterly intolerable in a civilized community;”
       (3) the actions of the defendant were the cause of the plaintiff’s distress; and
       (4) the emotional distress sustained by the plaintiff was so severe that no reasonable
       person could be expected to endure it.

Faulkner v. Ark. Children’s Hosp., 347 Ark. 941, 957, 69 S.W.3d 393, 403–04 (2002).

Notably, in Cordes, our supreme court held that allegations that the defendant caused the

plaintiffs to be arrested, even if proven, did not rise to a level sufficient to support a claim

for damages for the tort of outrage.

       In his appellate brief, appellant recites the four elements of outrage as set forth in

Faulkner, followed by this as his entire argument on this point:

       We believe those elements have been met. Being falsely charged with crime alters
       the entirety of a person’s relationships, and creates huge stress. Here we had the
       mistreatment of the appellant upon original interview by these appellees. He lost his
       job and income and status because of it.

We are not persuaded by this conclusory argument.             Merely describing conduct as

outrageous does not make it so. Cordes, supra. We hold that appellant failed to provide any

specific allegation, much less proof, to sustain that Tyson committed acts of “outrage” in

investigating the plant’s ammonia leak and in complying with a request by law enforcement

for results of that investigation. Compare Family Dollar Trucking, Inc., supra. We affirm the

entry of summary judgment in favor of appellees on appellant’s claim of outrage.

       Affirmed.


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       GLADWIN, C.J., and VAUGHT, J., agree.

       Erwin L. Davis, for appellant.

       Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Kathlyn Graves and Jeffrey

L. Spillyards, for appellees.




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