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.
Is the testimony of a witness in a criminal proceeding protected by an absolute privilege? What privilege applies to statements made to a police officer in the course of a criminal investigation?
The Supreme Court did not address any of the procedural arguments raised by Respondent, choosing instead to address the merits.
First, the Court considered whether Respondent’s testimony at Petitioner’s criminal trial was privileged. Earlier cases from West Virginia, and elsewhere, confirm that testimony given in the context of a judicial proceeding enjoys absolute immunity. The Court memorialized this principle in a new syllabus:
“Judicial fact witnesses enjoy absolute immunity from defamation claims based on their trial testimony where such testimony is relevant to the judicial proceeding.”
Next, the Court considered the privileged status of the statements made by Respondent to the investigating police officer. Unlike testimony in open court, a statement made as a prelude to a judicial proceeding is only qualifiedly privileged. So long as a statement is made in good faith and concerns a matter in which the person has a legitimate interest or legal duty, the qualified privilege applies. Here, Petitioner alleged that Respondent made the statement to the police officer “false[ly]” and “maliciously.” This was enough to withstand a motion to dismiss. Accordingly, the circuit court’s dismissal of the defamation claim was reversed insofar as it was related to Respondent’s statement to the police officer.
Finally, the Court considered Petitioner’s outrage claim. Citing Tanner v. Rite Aid, the Court noted the high threshold that must be met to state a claim for extreme and outrageous conduct. Given the fact that Petitioner had had similar encounters on two occasions, during both of which he had directed vulgar language at Respondent, the circuit court correctly concluded—as a matter of law—that Respondent’s report of the incident to the police was not extreme or outrageous in nature.
The new syllabus in this case is by no means surprising. The cases cited by the Court clearly give a special privileged status to testimony given as part of a judicial proceeding. Thus, the testimony of a fact witness is protected by an absolute privilege. In contrast, any statement made in advance of a judicial proceeding is protected only by a qualified privilege—i.e., a privilege that can be overcome by a showing of bad faith.