This case raises procedural issues involving the timeliness of Petitioner’s brief and whether his notice of appeal was sufficient. Substantively, the key issue presented is whether statements made to a police officer in the course of a criminal investigation are absolutely privileged.
Petitioner, John Zsigray, went through a drive-through at a McDonald’s restaurant in Glenville and allegedly became involved in a verbal altercation with Respondent, Cindy Langman, who was the restaurant’s general manager. Petitioner and Langman had had a prior incident of a similar nature. Langman made a police report, after which Petitioner was arrested and charged with criminal harassment. Petitioner was acquitted following a jury trial in February, 2016.
Thereafter, Petitioner filed a civil suit against Langman and Respondent, J. W. Ebert Corporation, for which Langman was working at the time of the underlying incident. Petitioner asserted claims of defamation and intentional infliction of emotional distress (“IIED”) The trial court dismissed Petitioner’s defamation claim under Rule 12(b)(6). The trial court also granted summary judgment with respect to the IIED claim, finding, as a matter of law, that Langman’s conduct was not extreme or outrageous.
Petitioner rejects the argument that Langman’s statements to police were privileged. To accept an absolute privilege in this context would “completely shut down all avenues for a plaintiff to have any recourse when falsely arrested.” Furthermore, qualified privilege would not apply because Langman did not act in good faith but, instead, was lying to police in an effort to have Petitioner arrested. Regarding the IIED claim, Petitioner argues that Langman’s conduct was, indeed, outrageous because she effectively “turned a customer’s disagreement regarding a sandwich into an arrest for a crime [Petitioner] did not commit.”
Respondents argued that Petitioner’s appeal should be dismissed. First, Petitioner failed to timely file his brief according to the Supreme Court’s scheduling order. Second, Petitioner’s assignment of error regarding the slander claim was not asserted in Petitioner’s notice of appeal and, therefore, was not properly preserved for appeal. Regarding the merits, Respondents argue that all of Langman’s statements to the police are absolutely privileged because they were made as part of the preliminary steps to a judicial proceeding. Furthermore, making a report to police under these circumstances cannot possibly constitute extreme or outrageous conduct.
The Supreme Court has assigned this appeal to its Rule 20 docket. Therefore, the Court anticipates writing a new syllabus point. It is possible that the Court is interested in writing a syllabus explaining what must be set forth in a notice of appeal and what consequences follow if a notice is deficient. If the Court reaches the merits, it is likely to focus on the privilege issue, providing us with a syllabus explaining how privilege applies when statements are made in the course of a criminal investigation.