ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
FLORENCE ANNE BRIGGS JIM BRUGH
Flora, Indiana Logansport, Indiana
COURT OF APPEALS OF INDIANA
GLEN A. RATCLIFF, )
vs. ) No. 08A04-0010-CV-457
KEITH BARNES, )
APPEAL FROM THE CARROLL CIRCUIT COURT
The Honorable Joseph W. Carey, Presiding Judge
Cause No. 08C01-9812-CP-00099
JUNE 26, 2001
OPINION - FOR PUBLICATION
BARTEAU, Senior Judge
STATEMENT OF THE CASE
Plaintiff-Appellant Glen A. Ratcliff appeals the trial courts grant of summary judgment in
favor of Defendant-Appellee Keith Barnes.
We reverse and remand.
The following issue is dispositive: whether the trial court erred in granting
summary judgment for Barnes on Ratcliffs defamation claim.
FACTS AND PROCEDURAL HISTORY
On December 17, 1998, an article appeared in the Logansport Pharos-Tribune, a newspaper
circulated in Carroll County, Indiana, in which allegations were made against County Highway
Department Superintendent Peterson. Included in the article were the following quotes by
He [Barnes] went on to say that police reports verify that 60 to
80 loads of stone, each weighing 10 tons, have been stolen from the
highway department. Barnes named a co-worker, Glen Radcliff [sic], as the perpetrator.
At approximately $5.75 a ton, Barnes added the county lost upwards of $4,600.00.
Furthermore, Radcliffs [sic] long lane, formerly gravel, now is paved, Barnes said.
He added that [Highway Superintendent] Peterson knew of the thefts, but turned
the other cheek.
Radcliff [sic] also has been permitted to take home the county highway pickup
for his own personal use and is the only highway employee who has
been provided with a cellular phone in his highway truck, Barnes claimed.
DISCUSSION AND DECISION
Ratcliff filed a complaint for defamation. In the complaint, he alleged, among
other things, that Barnes maliciously stated a falsehood when he characterized Ratcliff as
the perpetrator who stole Carroll County (County) property.
Barnes filed a motion for summary judgment on the basis that there is
no genuine issue as to the material fact that Barness statement that Ratcliff
stole or took County property was substantially true and that there is insufficient
evidence to support a finding that Barnes published these statements with malice.
(R. 5). Barnes designated evidence, in the form of an affidavit, in
which he stated that (1) he had worked for the County for eight
years; (2) he had never taken or hauled County stone to his driveway
for his own personal use; and (3) he was unaware of any written
publication or declaration of any County policy or practice permitting Department employees to
take County stone for any employees personal use on that persons private property.
Ratcliff responded by designating evidence, in the form of his affidavit and portions
of his deposition, in which he states that (1) he performed snow removal
with County trucks as part of his duties with the County Highway Department;
(2) he had to be available for emergency call-outs; (3) he and other
employees parked their truck in their respective driveways; (4) he and other employees
were authorized to put County stone on their driveways to repair damage to
the driveways caused by the County Highway trucks; (5) he was authorized to
put stone on his driveway with permission of the Superintendent under a long-standing
policy; and (6) he was told by Barnes that the only reason he
said that to the newspaper was because someone told him that Ratcliff had
accused him of stealing metal out of the County Highway Shop. (R.
Additional evidence indicated that the Carroll County Commissioners had recognized the Superintendents policy
regarding placing County stone on an employees driveway in a meeting occurring on
May 4, 1987. After Barnes made the statements, Ratcliff was suspended and
terminated from the Highway Department. Ratcliff was prosecuted for theft and was
exonerated by a jury. Other charges were dismissed.
The trial court granted Barnes motion. Ratcliff now appeals.
The purpose of summary judgment is to terminate litigation about which there is
no factual dispute and which may be determined as a matter of law.
Orem v. Ivy Tech State College, 711 N.E.2d 864, 867 (Ind. Ct.
App. 1999), trans. denied. When reviewing the grant or denial of summary
judgment this court applies the same standard as the trial court. Id.
Summary judgment is appropriate only if the designated evidentiary material shows there
is no genuine issue of material fact and the moving party is entitled
to summary judgment as a matter of law. Id.
In performing our analysis, we consider the pleadings and evidence sanctioned by Ind.
Trial Rule 56(C) without determining weight or credibility. Mehling v. Dubois County
Farm Bureau Co-op. Assn, 601 N.E.2d 5, 6 (Ind. Ct. App. 1992).
All facts and inferences to be drawn therefrom are viewed favorably to the
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. Davidson v. Perron, 716 N.E.2d 29, 37
(Ind. Ct. App. 1999), trans. denied. To establish defamation, a plaintiff must
prove the following elements: (1) a communication with defamatory imputation; (2) malice; (3)
publication; and (4) damages. Id. The latter two elements are not
at issue here.
Generally, the determination of whether a communication is defamatory is a question of
law for the court. Id. The determination becomes a question of
fact for the jury if the communication is reasonably susceptible of either defamatory
or non-defamatory interpretation. Id. However, a communication is defamatory per se
if it imputes: (1) criminal conduct; (2) a loathsome disease; (3) misconduct in
a persons trade, profession, office, or occupation; or (4) sexual misconduct. Levee
v. Beeching, 729 N.E.2d 215, 220 (Ind. Ct. App. 2000). Barnes concedes
his characterization of Ratcliff as the perpetrator who stole County property is defamatory
Our consideration of the first element does not end with this concession because
not all defamation is actionable. See Northern Indiana Public Service Co. v.
Dabagia, 721 N.E.2d 294, 301 (Ind. Ct. App. 1999), trans. denied. In
order to show that a defamatory communication is actionable, a plaintiff must prove
that the communication is false. Ind. Code § 34-15-1-2; Kitco, Inc. v.
Corp. for General Trade, 706 N.E.2d 581, 587 (Ind. Ct. App. 1999).
In both his motion for summary judgment and his brief on appeal, Barnes
contends that his defamatory communication is not actionable because it is substantially true.
Barne cites Journal-Gazette Co. v. Bandidos Inc., 712 N.E.2d 446 (Ind. 1999),
cert. denied, 528 U.S. 1005, 120 S.Ct. 499, and related cases in support
of his contention. In Bandidos, our supreme court considered the similarity between
the defamatory sting of an inaccurate newspaper headline referring to the closing of
a Bandidos restaurant because of the presence of rats and the gist of
the truth that the closing occurred because of the presence of rodent droppings.
Id. at 461. The court held that the sting of the
headline was sufficiently similar to the gist of truth to be substantially true,
and thus not actionable. Id. (citing Chapin v. Knight-Ridder, Inc., 993
F.2d 1087, 1092 (4th Cir. 1993) for the proposition that when [t]he falsity
of a statement and the defamatory sting arises from substantially true facts, the
plaintiff may not rely on minor or irrelevant inaccuracies to state a claim
for libel). The court further held that [w]hatever distinction one might draw
between a rat and rodent, we believe the difference fits easily within the
breathing space that gives life to the First Amendment. Id. (quoting Bose
Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 513, 104
S.Ct. 1949, 80 L.Ed.2d 502 (1984)).
In the present case, Barnes emphasizes that he was telling the truth when
he stated that Ratcliff took County stone and put it on his own
driveway. Barnes says nothing about his defamatory characterization of Ratcliff as
a perpetrator who stole County property, a characterization which appears to be untrue.
The apparent inaccuracy of this defamatory characterization does not possess the same
sting as the truth, and the characterization is not a minor or irrelevant
inaccuracy. Barnes truth defense must fail.
We now consider the element of malice as it applies to this case.
In Indiana, private individual plaintiffs bringing defamation actions must show actual malice
in matters of public or general concern. Id. at 452. Actual
malice exists when the defendant publishes a defamatory statement with knowledge that it
was false or with reckless disregard of whether it was false or not.
Id. at 456. (quoting New York Times Co. v. Sullivan, 376 U.S.
254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). In order to
prove that a defendant published with reckless disregard, a plaintiff must designate sufficient
evidence to permit the conclusion that the defendant in fact entertained serious doubts
as to the truth of his publication. Id. A defendants state
of mind is a subjective fact and may be shown by indirect or
circumstantial evidence. Id. A defendant cannot automatically insure a favorable verdict
by [stating in an affidavit] that he published with a belief that the
statements were true. Kitco, 706 N.E.2d at 588. The initial question
of whether there is sufficient evidence to support a finding of actual malice
is a question of law to be determined by the court. Id.
As noted above, Barnes states in his affidavit that he did not know
of the policy. On the other hand, in his affidavit Ratcliff states
that he and other County employees were authorized, as a matter of policy,
to put stone on their driveways. In his deposition, which was designated
as evidence by both parties, Ratcliff states that he acted with permission of
the Superintendent under a long-standing policy. Ratcliff also states in his
deposition that putting stone on driveways had been done years before he was
an employee and was a policy continued from years past. The 1987
minutes of the Commissioners meeting serve to bolster Ratcliffs claims that there was
a policy which allowed employees to put stone on their driveway, a policy
that Ratcliff specifically claims in his deposition has become common knowledge during the
ensuing years. (R. 91).
This evidence, if true, indicates that the County policy of allowing drivers to
use County stone to repair driveways damaged by heavy County vehicles had been
acknowledged in the past by the County Commissioners and was currently known by
County workers. Ratcliff also designated evidence, in the form of the newspaper
article, which indicates that Barnes was unhappy with Petersons performance as his superior.
Ratcliff further designated evidence which, if true, indicates that Barnes statement was
made in retaliation for Ratcliffs alleged prior statement characterizing Barnes as a thief
who stole metal from the County Highway Shop. A reasonable inference
can be drawn from this indirect evidence that, as a County worker, Barnes
knew that Ratcliffs use of the Countys stone was authorized and that Barnes
ill-will toward both Peterson and Ratcliff motivated him to make a defamatory statement
that he knew was not true. We cannot say as a matter
of law that Ratcliff has failed to establish a question of fact on
the issue of actual malice. Thus, the question becomes one for the
The trial court erred in determining either that Barnes was entitled to judgment
as a matter of law or that there were no genuine issues of
material fact on the validity of Ratcliffs defamation claim.
Reversed and remanded.
SHARPNACK, C.J., and SULLIVAN, J., concur.