## Facts

- Daniel T. Tanoos, superintendent of a county school corporation, was shot at while at home; the shot grazed his head.
- Police identified Paul Joseph “Jay” Kelley III, a supervisor at a juvenile residential treatment facility, as a suspect based in part on prior animosity toward Tanoos.
- Rumors spread at Kelley’s workplace that he was a suspect; law enforcement interviewed employees, and the facility later required follow-up interviews occur on employees’ personal time, generating rumors that the facility was not cooperating.
- The facility’s executive director sought a meeting with Tanoos to address strained relations between the institutions.
- Before the meeting, Tanoos contacted police; police provided questions and outfitted him with a recording device because Kelley would be discussed.
- During the meeting, Tanoos made statements to the executive director indicating that police suspicion and circumstantial evidence pointed to Kelley, including references to polygraph results.
- Kelley was never charged for the shooting.
- Kelley sued Tanoos for defamation, alleging the statements falsely accused him of criminal conduct and harmed his reputation.

## Issues

1. Whether accusatory statements made to an employer during a privately arranged meeting conducted with police direction and cooperation, for investigative purposes, are protected by a qualified privilege.
2. Whether the plaintiff produced evidence creating a genuine issue of material fact that the defendant abused any qualified privilege (e.g., by malice, reckless disregard, improper purpose, or excessive publication).
3. Whether to abolish the common-law presumption of damages in defamation per se cases (raised but not necessary to decide).

## Decision

- The Indiana Supreme Court held the statements were protected by a qualified privilege because they were made to assist law enforcement in investigating criminal activity.
- The Court held Kelley failed to present evidence sufficient to show abuse of the privilege.
- The Court reversed the Court of Appeals and affirmed summary judgment for Tanoos.
- The Court declined to decide whether Indiana should abolish presumed damages for defamation per se, because qualified privilege resolved the case.

## Legal Principles

- Communications made in good faith to assist law enforcement in investigating criminal activity are subject to a qualified privilege, even if they are otherwise defamatory.
- A qualified privilege may extend to communications made in cooperation with police to a limited audience with a legitimate interest, including an employer implicated in investigation-related concerns.
- The privilege is defeated only if the plaintiff shows abuse, such as excessive publication, use of the occasion for an improper purpose, or statements made with knowledge of falsity, reckless disregard for truth, or ill will inconsistent with the privilege’s purpose.
- When qualified privilege applies, the plaintiff bears the burden to produce evidence of abuse sufficient to avoid summary judgment.

## Conclusion

Because the statements were made in a police-coordinated effort to aid an ongoing criminal investigation and Kelley did not show evidence of abuse of the privilege, the defamation claim was barred and summary judgment for Tanoos was affirmed.


Kelley v. Tanoos, 865 N.E.2d 593 (Ind. 2007)