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The initial determination of whether a privilege exists is one of law for the court. In general, a qualified privilege extends to all communications made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, to a person having a corresponding interest or duty. Thus, in order to have a qualified privilege, the communication must be: (1) bona fide; (2) made by a party who has an interest, or a duty to communicate the subject matter; and (3) made to a party who has a corresponding interest or duty.
Laurie Cherup, an employee of defendant Taylor AMC/Jeep, Inc., was overheard on several occasions telling customers over the phone that plaintiff Thomas Shannon, a previous employee of defendant, was terminated because he had “gotten caught stealing” and was “involved in theft of parts.” Plaintiff filed a complaint against both defendants American Motors Sales Corporation (AMC) and Taylor alleging in part claims for wrongful discharge, sex discrimination, breach of contract and slander. All counts were dismissed as to defendant AMC. The trial court found Cherup’s statements about plaintiff to defendant’s customers were protected from action by a qualified privilege. Plaintiff requested a new trial on the slander claim, arguing that the trial court erred in instructing the jury on qualified privilege and actual malice.
Were the statements made by the co-employee to defendant’s customers protected from action by a qualified privilege, thereby warranting the dismissal of plaintiff’s slander claim?
The Court agreed with the plaintiff, and found that before there could have been qualified immunity there should have been a determination as to whether stolen goods were actually sold to customers. The Court found that there was no reason to believe that any stolen goods ended up in customers' hands. Therefore, there was no qualified privilege to tell customers that the employee was fired because he dealt with stolen parts. Accordingly, the trial court's decision was reversed and remanded.