An Indiana state appeals court has affirmed a lower court’s ruling that a principal’s faulty investigation of one of his coaches, who had an altercation with a player, did not meet the necessary threshold to impute liability against the principal and other defendants for intentional infliction of emotional distress.
The appeals court also affirmed the state court’s decision to deny the defendants’ motion with respect to a defamation claim, allowing the plaintiff to continue his litigation on that front.
Plaintiff David McCollough was the head coach for Noblesville High School (NHS) boys basketball team for 20 years. During a basketball practice on January 28, 2014, his players were engaged in a drill when McCollough called a foul on one of them. As described by witnesses, the player then threw a basketball more forcefully than appropriate at McCollough. McCollough admits that “out of frustration” he threw the ball back toward the player. Some of those who witnessed the incident indicated that the player reached high for the ball and the ball grazed his fingertips. Those same witnesses indicated that had the player not reached for the ball, the ball would not have touched the player.
The next day, NHS Principal Jeff Bryant notified the plaintiff that he had heard about the matter, and that he would begin an investigation.
On January 31, 2014, Bryant advised McCollough that he was being placed on administrative leave for five days as a result of the incident. McCollough was also asked to attend a press conference on the morning of February 1, 2014, to address the incident involving the player. He could not attend however because he became physically ill as a result of the suspension. Instead, McCollough agreed to work with a public relations director for Noblesville Schools to draft a statement that would be released to the public. The statement to which McCollough agreed provides:
“An incident occurred at basketball practice earlier this week in which, out of frustration during a drill, I threw a basketball and the ball allegedly hit a player. My actions were unacceptable, and I greatly regret I allowed this to happen. I am sorry and publicly apologize to my players, families, and fans. This is not the behavior that I want to model for my players, and it will not happen again.”
Later that day, Noblesville Schools sent the above statement to media outlets in Central Indiana and elsewhere. “However, the word ‘allegedly,’ which McCollough claims he was adamant about including, had been removed without McCollough’s knowledge or consent,” wrote the court. “McCollough maintains that the word ‘allegedly’ was removed at the direction of Bryant and that its removal completely changed the meaning of McCollough’s statement such that it read as an admission by McCollough to hitting a player with a basketball.”
Later in the spring, Bryant and the other defendants recommended that McCollough not return as the head basketball coach. McCollough claimed that he appealed the decision in writing and asked the Noblesville School Board to review the matter. However, a hearing was never held, according to the plaintiff.
On September 4, 2014, McCollough filed a lawsuit against the defendants, asserting claims for defamation, intentional infliction of emotional distress, negligence, breach of contract, and tortious interference with a contract/business relationship. McCollough also claimed the defendants violated his due process rights.
Specifically, he alleged that he applied for approximately 31 basketball coaching positions at high schools and colleges around Indiana. McCollough claimed that the main reason he did not receive any of the coaching positions is directly related to the public statement issued by Noblesville Schools that read as an admission by him to throwing a ball at and hitting a player.
On December 22, 2014, the defendants filed a motion for summary judgment. The trial court issued its order on November 17, 2015, granting the defendants’ motion for summary judgment as to all of McCollough’s claims except for defamation. McCollough appealed.
The appeals court began its analysis by noting that 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 v. Mac’s Convenience Stores, LLC, 37 N.E.3d 539, 549 (Ind. Ct. App. 2015) (quoting Curry v. Whitaker, 943 N.E.2d 354, 361 (Ind. Ct. App. 2011)), trans. denied. The requirements to prove this tort are rigorous, and at its foundation is “the intent to harm the plaintiff emotionally.” Id. at 550. As often quoted from Comment (d) of the Restatement (Second) of Torts Section 46 (1965),
The panel noted that the cases “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!’”
The appeals court agreed “with the defendants that even accepting the facts as presented by McCollough, we cannot say that the defendants’ conduct, even if intentional, qualifies as being so outrageous in character or extreme in degree that it is to be regarded as atrocious or utterly intolerable in a civilized community. See Jaffri v. JPMorgan Chase Bank, N.A., 26 N.E.3d 635, 640 (Ind. Ct. App. 2015). … The trial court did not err in granting summary judgment in favor of the defendants on McCollough’s IIED claim.”
The panel went on to affirm the ruling for the defendants on the other claims as well, before turning its intention to the plaintiff’s defamation claim.
“In order to establish a claim of defamation, a plaintiff must prove (1) a communication with defamatory imputation, (2) malice, (3) publication, and (4) damages,” wrote the appeals court, citing Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184, 186 (Ind. 2010). “The first two elements are at issue here.
“The defendants concede that McCollough’s statement was revised without his knowledge and consent such that the word ‘allegedly’ was removed and that the revised statement, which was clearly attributed to McCollough, was published in a press release. Notwithstanding their alteration of McCollough’s statement, the defendants argue that McCollough cannot establish a defamatory imputation or that they acted with malice in publishing the revised statement. In response, McCollough argues that the published statement clearly lowered his reputation in the community and that there is at least a question of fact as to whether the defendants acted with malice.”
The panel noted that the parties’ arguments “demonstrate quite clearly that there is a genuine issue of material fact as to the defamatory imputation of the altered statement that was published. The true implication of the statement necessarily requires consideration of extrinsic evidence by the trier of fact.” The appeals court issued the same finding with regard to whether the defendant acted with malice.
Next, the panel turned to whether the communications regarding the incident in question are protected by the common interest privilege. “The defendants maintain that they have an obligation to tell the community and other stakeholders about the incident between McCullough and a player.” This argument was flawed, however, because the defendants “cited no authority to support expansion of the common interest privilege to cover communications between schools and the general public regarding coaching staff.”
David McCollough v. Noblesville Schools and Jeff Bryant; Ct. App. Ind.; Court of Appeals Case No. 29A02-1512-CT-2181, 2016 Ind. App. LEXIS 399; 11/2/16
Attorneys of Record: (for appellant) S. Matthew Cook, Stephen W. Cook, Noblesville, Indiana. (for appellee) Andrew A. Manna, Alexander P. Pinegar, Brent R. Borg, Noblesville, Indiana.
