Roukaya Ali v. Alliance Home Health Care, LLC, L.J.L. Enterprises, Inc., and Larry J. Logsdon

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

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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.

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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,

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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.

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[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

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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

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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).

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[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).

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[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

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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

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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.

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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.

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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.

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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

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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;

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(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

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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.

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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

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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

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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.

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[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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