ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE
FINLAY FINE JEWELRY CORP.:
EDWARD A. CHAPLEAU
South Bend, Indiana JAMES H. MILSTONE
Kopka, Landau & Pinkus
South Bend, Indiana
ATTORNEYS FOR APPELLEES
L.S. AYRES & COMPANY, INC., THE MAY
DEPARTMENT STORES d/b/a L.S. AYRES,
FAMOUS-BARR CO., and DENNIS BAKE:
JOHN R. OBENCHAIN
J. THOMAS VETNE
Jones Obenchain, LLP
South Bend, Indiana
COURT OF APPEALS OF INDIANA
MELISSA DITTOE DIETZ, )
vs. ) No. 71A03-0010-CV-372
FINLAY FINE JEWELRY CORP., )
L.S. AYRES & COMPANY, INC., )
THE MAY DEPARTMENT STORES )
d/b/a L.S. AYRES, FAMOUS-BARR CO., )
DENNIS BAKE, )
APPEAL FROM THE ST. JOSEPH CIRCUIT COURT
The Honorable Terry A. Crone, Judge
Cause No. 71C01-9903-CT-13
August 22, 2001
OPINION - FOR PUBLICATION
Appellant-plaintiff Melissa Dittoe Dietz (Dietz) appeals from the dismissal of her suit against
appellee-defendant Finlay Fine Jewelry Corp. (Finlay) and, alternatively, the grant of summary judgment
in favor of Finlay on Dietzs claims for invasion of privacy, false imprisonment,
defamation, intentional infliction of emotional distress, and intentional interference with an employment relationship.
Dietz also appeals the separate grant of summary judgment in favor of
appellees-defendants L.S. Ayres & Company, Inc., The May Department Stores d/b/a L.S. Ayres,
Famous-Barr Co., and Dennis Bake (collectively, Ayres) on the same claims. We
affirm in part, reverse in part, and remand.
Dietz raises the following issues for our review:
I. whether the trial court erred when it dismissed her complaint against
Finlay for lack of subject matter jurisdiction;
II. whether the trial court erred when it granted summary judgment in favor of
Finlay and Ayres on her claims for:
A. invasion of privacy, where the security manager allegedly disclosed information about
Dietzs credit history to one or two other employees;
B. false imprisonment, where Dietz was detained and
questioned about an unauthorized discount and allegedly was further questioned about missing jewelry;
C. defamation, where the security manager allegedly accused Dietz of having a
drug or alcohol problem and suggested that she stole jewelry to support such;
D. intentional infliction of emotional distress, where the security manager questioned Dietz
in a gruff and intimidating manner;
E. intentional interference with the employment relationship, where Dietz was discharged after
admitting she had given an unauthorized discount to a customer.
Facts and Procedural History
The facts favorable to Dietz follow. Finlay leases a commercial space in
the L.S. Ayres retail store, from which it sells fine jewelry. Finlay
did not employ its own security personnel but, instead, utilized the security services
provided by L.S. Ayres. In July of 1998, Finlay hired Dietz as
a sales clerk at a wage of $6.00 per hour plus commissions.
In September of 1998, a customer wanted to purchase a Finlay diamond ring
on sale for $1,439.20. The customer intended to charge the purchase to
her top account, but Dietz did not know how to perform that task.
After she mistakenly placed the purchase on the customers flex account, Dietz
voided the transaction and then repeatedly sought assistance to complete the sale.
Both Dietz and the customer grew frustrated. Eventually, an L.S. Ayres manager
assisted Dietz. Without authorization, Dietz gave the then irate customer an extra
ten percent discount.
L.S. Ayres security manager Dennis Bake (Bake) learned about the transaction from another
employee. He confirmed the unauthorized sales price and spoke with his supervisor.
Thereafter, Bake asked Dietz to accompany him to an interview room, and Dietz
complied. Two other employees were present. Kathleen Camp (Camp), a sales
manager, witnessed the interview because, if a female is interviewed, they call one
of the female managers in on it[.] A male security employee, Curt
Seufert (Seufert), allegedly examined video monitors during the first five or ten minutes
of the meeting, a task unrelated to the Dietz interview. Dietz sat
in a chair, and Bake sat in front of her.
The ensuing interview lasted fifty-seven minutes. Dietz first signed a document acknowledging
that she understood she was free to leave at any time. Bake
then explained his job title and responsibilities. He told Dietz that he
had access to her L.S. Ayres charge account and could determine if she
had been late in making her payments. Dietz was on guard.
She described Bakes demeanor as very gruff, very intimidating. Bake also spoke
of mistakes in Dietzs account book and informed Dietz that there were six
pieces of jewelry missing. Dietz claims that Bake also accused her of
having a drug or alcohol problem and suggested that she pawned the jewelry
to pay bills or to support her problem. Bake allegedly stated, [I]t
all leads back to you. What are you going to do about
it? Several times, Bake told Dietz not to interrupt him. At
one point, he also demanded that Dietz stay in the room. Dietz
stated she did not feel free to leave, and she believed if she
had attempted to do so, Bake would have verbally intimidated her into staying.
Bake asked Dietz if she had ever given a discount to a friend
or relative, or to anybody. Dietz disclosed the incident involving the discounted
ring but insisted she had done nothing wrong. Eventually, Dietz signed a
promissory note for $143.92, the amount of the discount. At Bakes direction,
she also drafted and signed a document admitting she had given the unauthorized
Finlay dismissed Dietz for violating company policy.
Thereafter, Dietz filed a seven-count complaint against Finlay and Ayres, alleging invasion of
privacy, false imprisonment, defamation, intentional infliction of emotional distress, intentional interference with an
employment relationship, negligent hiring and supervision, and breach of contract. Ayres moved
for summary judgment. Separately, Finlay filed a consolidated motion to dismiss and
motion for summary judgment. Without elaboration, the trial court granted Ayres motion
on August 22, 2000. In an order dated October 3, 2000, the
trial court granted Finlays motion to dismiss, finding that the Workers Compensation Board
had exclusive subject matter jurisdiction, and in the alternative, granted Finlays motion for
summary judgment on all counts. This appeal followed.
Discussion and Decision
I. Motion to Dismiss
Dietz first challenges the trial courts grant of Finlays motion to dismiss for
lack of subject matter jurisdiction based upon the exclusivity provision of the Indiana
Workers Compensation Act. A motion to dismiss for lack of subject matter
jurisdiction presents a threshold question regarding a courts power to act. Samm
v. Great Dane Trailers, 715 N.E.2d 420, 424 (Ind. Ct. App. 1999), trans.
denied (2000). When reviewing such a motion, the relevant question is whether
the type of claim presented by the plaintiff falls within the general scope
of the authority conferred upon the court by constitution or statute. Id.
[R]ecovery for personal injury or death by accident arising out of employment and
in the course of employment can be sought exclusively under the Workers Compensation
Act, and such actions are cognizable only by the Workers Compensation Board.
Perry v. Stitzer Buick GMC, Inc., 637 N.E.2d 1282, 1285 (Ind. 1994).
The legislature intended the boards jurisdiction in such cases to be original and
exclusive, and resort may not be had to the courts until the administrative
process has been completely exhausted. Id. Claims not meeting any jurisdictional
prerequisite do not fall within the Act and may be pursued in court.
The precise question raised in this case is whether Dietzs injuries qualify as
personal injur[ies] under the Act. The supreme courts decision in
instructive. There, Perry was an African-American automobile salesman allegedly subjected to continuing
harassment, including racial slurs, vulgarity, and battery. Id. at 1284-85. After
he was discharged, Perry sued his former employer for assault, slander, and assault
and battery. Id. at 1285. The employer argued that the complaint
was barred by the exclusivity provision of the Workers Compensation Act. Id.
at 1286. In examining the nature of personal injury comprehended by the
Act, the court explained:
[Personal injury] includes both physical injury and the somewhat different notions of disability
and impairment. Impairment is a term of art for purposes of workers
compensation that denotes an injured employees loss of physical functions. Disability refers
to an injured employees inability to work. The extent of a disability
is determined by a workers physical and mental fitness for various employment opportunities.
Id. at 1288 (citations omitted). Perry alleged that he had suffered embarrassment,
humiliation, stress, and paranoia and that his character and reputation had been damaged,
but he had not sustained any physical injury or loss of physical function.
Id. Similarly, but for his discharge, Perry was able and willing
to continue to perform his duties at the dealership. Id. at 1288-89.
Ultimately, the court held that Perrys claims were not barred by the
exclusive remedy clause of the Act because the injuries at the heart of
his complaint were not physical and there was no impairment or disability as
contemplated by the Act. Id. at 1289.
II. Motions for Summary Judgment
Here, as in
Perry, Dietz does not claim to have suffered physical injury
or loss of physical function. Rather, she alleges loss of sleep, anxiety,
tension, depression, humiliation, extreme emotional distress, and injury to her reputation, injuries that
are not physical in nature. Dietz also seeks economic damages for loss
of wages, benefits, and detriment in seeking other employment, damages unrelated to any
impairment or disability. Because the injuries at the heart of Dietzs complaint
do not involve personal injury as defined by the Act, her claims may
be pursued in court. The trial court erred in dismissing her claims
against Finlay for lack of subject matter jurisdiction.
Dietz also contends that the trial court erred when it entered summary judgment
in favor of Finlay and Ayres on her claims for invasion of privacy,
false imprisonment, defamation, intentional infliction of emotional distress, and intentional interference with her
employment relationship. When reviewing the grant of summary judgment, our standard of
review is the same as that applied by the trial court: summary judgment
is appropriate only when the designated evidentiary matter demonstrates that there is no
genuine issue regarding any material fact and that the moving party is entitled
to a judgment as a matter of law. Dible v. City of
Lafayette, 713 N.E.2d 269, 272 (Ind. 1999). The movant has the burden
of establishing the propriety of summary judgment. Town of Syracuse v. Abbs,
694 N.E.2d 284, 286 (Ind. Ct. App. 1998).
For defendants to prevail on their motions for summary judgment, they must show
that the undisputed facts negate at least one element of the plaintiffs cause
of action or that they have a factually unchallenged affirmative defense barring the
Dible, 713 N.E.2d at 272. When there are material
disputed facts, or if undisputed facts give rise to conflicting reasonable inferences that
affect the outcome, they must be resolved in favor of the non-movant.
Warner Trucking, Inc. v. Carolina Cas. Ins. Co., 686 N.E.2d 102, 104 (Ind.
1997). We give careful scrutiny to assure that the non-prevailing party is
not improperly prevented from having her day in court. Id.
A. Invasion of Privacy
We first consider Dietzs invasion of privacy claim, based upon her allegation that
Bake disclosed her credit problems to Camp and Seufert.
The general tort,
invasion of privacy, includes four distinct injuries: (1) intrusion upon seclusion, (2) appropriation
of likeness, (3) public disclosure of private facts, and (4) false-light publicity.
Doe v. Methodist Hosp., 690 N.E.2d 681, 684 (Ind. 1997) (plurality opinion) (citing
Restatement (Second) of Torts § 652A (1977)). The public disclosure of private
facts, described by the Second Restatement, occurs when a person gives publicity to
a matter that concerns the private life of another, a matter that would
be highly offensive to a reasonable person and that is not of legitimate
public concern. Id. at 692 (quoting Restatement (Second) of Torts § 652D).
Citing Doe, the parties dispute whether Indiana recognizes an action for public disclosure
of private facts. Under the specific facts and complaint presented in Doe,
the plurality was not persuaded to endorse the sub-tort of disclosure. Id.
at 693. The plurality did not, however, foreclose all future claims for
public disclosure of private facts. See, e.g., Ledbetter v. Ross, 725 N.E.2d
120 (Ind. Ct. App. 2000) (discussing claim). As explained in Doe, under
the Restatement view adopted by most courts, a communication to a single person
or to a small group of persons is not actionable because the publicity
element requires communication to the public at large or to so many persons
that the matter is substantially certain to become one of public knowledge.
690 N.E.2d at 692 (quoting Restatement (Second) of Torts § 652D cmt. a).
In this case, Bake allegedly discussed Dietzs credit difficulties in the presence
of sales manager Camp. The record does not disclose what co-employee Seufert
overheard, but release of the information to even two co-workers does not satisfy
the publicity requirement articulated in the Restatement.
In contrast, a few courts, including Indianas neighbors, have adopted a looser definition
of publicity, finding a disclosure actionable if made to a particular public with
a special relationship to the plaintiff.
Id. (quoting Beaumont v. Brown, 257
N.W.2d 522, 531 (1977), overruled in part by Bradley v. Saranac Cmty. Sch.
Bd. of Educ., 565 N.W.2d 650 (1997)). Here, Camp was present as
a female witness, and Seufert was a member of the security staff, watching
video monitors. There is no evidence that Dietz had a special relationship
with either so that a disclosure to them, under the circumstances, would render
them a particular public. See id. at 693 (finding Beaumont inapplicable because
there was no special relationship between plaintiff and fellow letter carrier). Because
Finlay and Ayres negated the publicity element of Dietzs claim, they were entitled
to summary judgment for invasion of privacy.
B. False Imprisonment
Dietz also maintains that genuine issues of material fact preclude summary judgment on
her false imprisonment claim.
False imprisonment involves an unlawful restraint upon ones
freedom of locomotion or the deprivation of liberty of another without [her] consent.
Crase v. Highland Vill. Value Plus Pharmacy, 176 Ind. App. 47, 50,
374 N.E.2d 58, 60-61 (1978). False imprisonment may be committed by words
alone, or by acts alone, or by both and by merely operating on
the will of the individual, or by personal violence, or both. 35
C.J.S. False Imprisonment § 14, at 444 (1999).
Finlay and Ayres assert immunity under the Shoplifting Detention Act, Indiana Code Section
35-33-6-2, which provides:
(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 may:
(1) detain the person and request the person to identify [herself];
(2) verify the identification;
whether the person has in [her] possession unpurchased
merchandise taken from the
(4) inform the appropriate law enforcement officers; and
(5) inform the parents or others interested in the persons welfare, that
the person has been detained.
(b) The detention
(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 first occurs.
The Shoplifting Detention Act permits the merchants 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
Haltom v. Bruner and Meis, Inc., 680 N.E.2d 6, 9 (Ind.
Ct. App. 1997). When probable cause to detain is present, detention is
lawful. Duvall v. Kroger Co., 549 N.E.2d 403, 407 (Ind. Ct. App.
1990); 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.).
Here, Dietz maintains that the Shoplifting Detention Act does not apply because there
was no probable cause to believe she committed theft, which occurs when one
knowingly or intentionally exerts unauthorized control over property of another person, with intent
to deprive the other person of any part of its value or use.
Ind. Code § 35-43-4-2. As used in the statute, to exert
control over property means, inter alia, to sell property or to transfer or
extend a right to property. Id. § 35-43-4-1(a). Control over another
persons property is unauthorized if it is exerted without the other persons consent
or in a manner or to an extent other than that to which
the other person has consented. Id. § 35-43-4-1(b).
At the time of the detention, Bake had discovered and verified the unauthorized
transaction. Thus, he reasonably believed that Dietz had intentionally sold the diamond
ring at a price less than that approved by Finlay with the intent
to deprive Finlay of part of its value. That constitutes probable cause
for purposes of the Shoplifting Detention Act. That alone, however, does not
mean the test of reasonableness in manner and time has been met in
See Ind. Code § 35-33-6-2(b)(1) (providing that the detention must
be reasonable and must last only for a reasonable time). An originally
reasonable detention may be denied statutory protection if the actions taken in connection
with the detention become unreasonable. 32 Am. Jur. 2d False Imprisonment §
In her deposition testimony, Dietz stated that Bake also questioned her about six
pieces of missing jewelry. Assuming that questioning occurred,
we cannot say as
a matter of law that Bake had probable cause to suspect Dietz was
involved in those thefts. Without probable cause, there is no immunity under
the Shoplifting Detention Act.
Nor can it be determined as a matter of law that Dietz voluntarily
remained in the room during the entire interview. Although Dietz had signed
a document acknowledging that she was free to leave at any time, she
also stated that she did not feel free to leave during the meeting.
Allegedly, at one point Bake told Dietz to stay in the room.
In addition, Dietz felt that, if she had attempted to leave, Bake
would have used verbal intimidation to keep her there. Because the designated
evidence does not conclusively establish the reasonableness of the detention, we cannot determine
whether the Shoplifting Detention Act renders Finlay and Ayres immune for false imprisonment.
Summary judgment on that claim was improvidently granted.
Next, Dietz asserts there are genuine issues of material fact precluding summary judgment
on her defamation claim.
Finlay and Ayres counter that they are immune
from defamation claims under the Shoplifting Detention Act and, further, that the communications
at issue were subject to the common law doctrine of qualified privilege.
We begin by recognizing that defamation consists of the following elements: (1) a
communication with defamatory imputation, (2) malice, (3) publication, and (4) damages. Davidson
v. Perron, 716 N.E.2d 29, 37 (Ind. Ct. App. 1999), trans. denied (2000).
A communication is defamatory per se if it imputes criminal conduct.
Levee v. Beeching, 729 N.E.2d 215, 220 (Ind. Ct. App. 2000). Generally,
the determination of whether a communication is defamatory is a question of law
for the court. Davidson, 716 N.E.2d at 37.
Here, as stated above, Bake was justified in questioning Dietz about the unauthorized
discount and, thus, Finlay and Ayres are immunized from claims of defamation based
on reasonable communications related to that investigation.
See Wal-Mart Stores, Inc. v.
Bathe, 715 N.E.2d 954, 963 (Ind. Ct. App. 1999), trans. denied (2000).
Indeed, statements that Dietz gave an unauthorized discount to a customer are true
and, thus, not actionable. See Branham v. Celadon Trucking Servs., Inc., 744
N.E.2d 514, 522 (Ind. Ct. App. 2001) (stating that true statements never give
rise to liability for defamation), trans. denied. As before, however, Bakes alleged
statements about Dietzs drug or alcohol problem and his suggestion that she stole
jewelry to support such are not immunized under the Shoplifting Detention Act.
Finlay and Ayres also seek immunity under a qualified privilege of common interest,
which 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, either public or private, either legal, moral, or social,
if made to a person having a corresponding interest or duty.
v. Eli Lilly and Co., 639 N.E.2d 258, 262 (Ind. 1994). The
privilege does not apply, however, to statements made without belief or grounds for
belief in their truth. Bals v. Verduzco, 600 N.E.2d 1353, 1356 (Ind.
1992); May v. Frauhiger, 716 N.E.2d 591, 595 (Ind. Ct. App. 1999).
As stated above, factual issues remain concerning whether Bake had grounds for belief
in the truth of his alleged statements regarding jewelry thefts to support a
drug or alcohol problem.
There is a second bar to application of the privilege on the designated
evidence. As our supreme court recognized, a statement may lose its privileged
character if there is excessive publication of the defamatory statement.
N.E.2d at 1356. The privilege is lost if the defamation goes beyond
the group interest, or if publication is made to persons who have no
reason to receive the information. K Mart Corp. v. Brzezinski, 540 N.E.2d
1276, 1282 (Ind. Ct. App. 1989), trans. denied (1990). In this case,
sales manager Camp was present during the entire interview as a female witness.
Thus, Camp was required to be present. See Kolczynski v. Maxton
Motors, Inc., 538 N.E.2d 275, 276 (Ind. Ct. App. 1989) (holding there was
no actionable defamation where employer utilized only employees necessary to conduct the investigation),
trans. denied. The designated evidence, however, does not indicate what Seufert heard
and whether he had a corresponding duty to be present. See K
Mart Corp., 540 N.E.2d at 1282 (holding that question of fact existed regarding
whether publications to one employee was protected by qualified privilege). Bake
himself stated that Seufert didnt need to be there[.] Thus, we cannot
say as a matter of law that Seufert had a reason to receive
Whether a statement is protected by qualified privilege is a question of law
unless the facts are in dispute. Id. In the present case,
there are factual disputes regarding whether Bake had grounds to believe his alleged
statements concerning additional thefts to support a drug or alcohol problem. There
is also a question about whether there was excessive publication of any such
statements. Because the designated evidence construed favorably to Dietz permits different inferences
and conclusions regarding the privilege, the question of abuse of privilege should be
submitted to the jury. See May, 716 N.E.2d at 595. Accordingly,
the trial court erred when it granted summary judgment on the defamation claim.
D. Intentional Infliction of Emotional Distress
We next consider whether the designated material supports a claim for intentional infliction
of emotional distress. The tort, first recognized by our supreme court in
Cullison v. Medley, 570 N.E.2d 27 (Ind. 1991), is committed when a person
engages in extreme and outrageous conduct that intentionally or recklessly causes severe emotional
distress to another. Branham, 744 N.E.2d at 523. Rigorous requirements must
be met to prove the tort. Id. The conduct at issue
must exceed all bounds usually tolerated by a decent society and must cause
mental distress of a very serious kind. Id. In the appropriate
case, the issue may be decided as a matter of law. Id.
In this case, Dietz asserts that Bake accused her of substance abuse, shoplifting,
and dishonesty in a gruff and intimidating manner. Even if the interview
proceeded as asserted, Dietzs intentional infliction of emotional distress claim fails as a
matter of law. Bakes actions occurred in the context of a detainment
for the purpose of determining the extent of Dietzs unauthorized conduct. While,
at the most, Bake may have unreasonably detained and defamed Dietz, his actions
in this case do not constitute outrageous behavior. Taken in context, Bakes
conduct did not exceed all bounds usually tolerated by a decent society.
The trial court properly entered summary judgment in favor of Finlay and Ayres
on Dietzs intentional infliction of emotional distress claim.
E. Intentional Interference with an Employment Relationship
Dietzs last claim concerns intentional interference with her contractual relationship.
court has stated, The parties in an employment at will relationship have no
less of an interest in the integrity and security of their contract than
do the parties in any other type of contractual relationship. Bochnowski v.
Peoples Fed. Sav. & Loan Assn, 571 N.E.2d 282, 284 (Ind. 1991).
Thus, [a]n employee with an at will employment contract must be able to
expect that [her] continued employment depends on the will of [her] employer and
not upon the whim of a third party interferer. Id. at 285.
Nevertheless, the plaintiff bringing an action for intentional interference with an at
will employment contract must show that the defendant interferer acted intentionally and without
a legitimate business purpose. Id. In determining whether an intentional interference
is justified, the Restatement suggests that the following factors be considered:
(a) the nature of the defendants conduct;
(b) the defendants motive;
(c) the interests of the plaintiff with which the defendants conduct interferes;
(d) the interests sought to be advanced by the defendant;
(e) the social interests in protecting the freedom of action of the defendant
and the contractual interests of the plaintiff;
(f) the proximity or remoteness of the defendants conduct to the interference;
(g) the relations between the parties.
Winkler v. V.G. Reed & Sons, Inc., 638 N.E.2d 1228, 1235 (Ind. 1994)
(citing Restatement (Second) of Torts § 767 (1977)).
In this case, the designated evidence shows that Bake interviewed Dietz, in part,
to determine whether she gave an unauthorized discount to a customer. Although
Dietz has a legitimate interest in her job, Finlay and L. S. Ayres
have strong interests in preventing employees from giving discounts to customers at will.
Bake was authorized to act, and Dietz admitted that she had given
the discount, a violation of company policy. Because the designated evidence demonstrates
a legitimate business purpose for the interference, the trial court properly entered summary
judgment on Dietzs claim for intentional interference with her employment relationship.
The motion to dismiss for lack of subject matter jurisdiction was entered in
error because, given the nature of Dietzs alleged injuries, the trial court had
jurisdiction over Dietzs suit against Finlay. The trial court properly entered summary
judgment in favor of Finlay and Ayres on Dietzs claims for invasion of
privacy, intentional infliction of emotional distress, and intentional interference with an employment relationship.
However, there remains a question of fact regarding whether the detention was
reasonable; thus, Finlay and Ayres are not entitled to summary judgment on the
false imprisonment claim. In addition, there are factual disputes regarding whether Bakes
statements were privileged for defamation purposes so that summary judgment on the defamation
cause of action is inappropriate.
Affirmed in part, reversed in part, and remanded.
ROBB, J., and VAIDIK, J., concur.
Dietz concedes that she provided the discount [a]s a customer
service gesture, but the customer may have had a coupon for a ten-percent
Footnote: On appeal, Dietz does not challenge the grant of summary judgment on
her claims for negligent hiring and supervision and breach of contract.
Our conclusion comports with the results reached by this court in
other post-Perry cases. See, e.g., Branham v. Celadon Trucking Servs., Inc., 744
N.E.2d 514, 519-21 (Ind. Ct. App. 2001) (holding that exclusivity provision did not
apply where complaint stated claims for invasion of privacy, libel, intentional infliction of
emotional distress, negligent supervision, and loss of consortium), trans. denied; Landis v. Landis,
664 N.E.2d 754, 755-56 (Ind. Ct. App. 1996) (holding that trial court had
jurisdiction over complaint averring assault and battery, intentional interference with a business relationship,
and intentional infliction of emotional distress where employee had disclaimed recovery for any
injury covered by the Act), trans. denied; Terrell v. Rowsey, 647 N.E.2d 662,
664-65 (Ind. Ct. App. 1995) (holding that action in which plaintiff allegedly suffered
embarrassment, defamation, and loss of quiet enjoyment of his property was not barred
by the Act), trans. denied.
The designated evidence shows that Bake told Dietz that he could
pull up credit reports and determine if there were any late charges.
Bake also allegedly suggested that Dietz pawned jewelry to pay bills. For
purposes of this opinion only, we assume that Bakes statements constitute disclosure of
Dietzs credit problems.
Dietz also alleges a factual dispute regarding Bakes authorization to detain
her. The designated evidence shows that Bake sought authorization from his supervisor
and that both Finlay and L.S. Ayres authorized Bake to get restitution from
Dietz. Nevertheless, Dietz theorizes that Bake detained her to impress his girlfriend,
who did not like her. Dietzs cited evidence lends no support to
Footnote: Bake denies having made such statements, but at this stage
of the proceedings we must construe the evidence in favor of Dietz.
See Warner Trucking, 686 N.E.2d at 104 (material disputed facts are resolved in
favor of non-movant).
Without citing designated evidence, Finlay seeks to avoid liability altogether by
arguing that Dietz did not demonstrate that Finlay could be liable for Mr.
Bakes actions under the doctrine of respondeat superior. Finlay misses the point.
As the movant, Finlay was required to show the absence of a
genuine issue of material fact on the issue.
See Dible, 713 N.E.2d
at 272. Finlay did not meet its burden in that regard.
Curiously, Dietz raises the claim against all defendants, including her