MALICIOUS PROSECUTION model injury 3.13
MALICIOUS PROSECUTION PRIOR CIVIL PROCEEDING model jury charge 3.13
Elements of a Malicious Prosecution
An action at law for malicious prosecution based upon a prior civil judicial proceeding consists of several elements.
First. The
plaintiff must establish that the defendant instituted or caused to be
instituted a civil suit against him/her and that he/she suffered special
grievance thereby. (Here
state the nature of the special grievance such as whether plaintiff was
arrested in connection with said suit or whether his/her property or
business was interfered with by the appointment of a receiver, the
granting of an injunction, by writ of replevin, by the filing of a lis
pendens, etc.)
Second. The plaintiff must establish that the civil suit terminated favorably to him/her or in a manner not adverse to him/her.
On
this subject the (undisputed) facts are (state facts relating to the
nature of the termination, such as a termination in his/her favor, a
voluntary withdrawal or abandonment, etc.)
Third. The plaintiff must establish lack of reasonable or probable cause for the civil suit.
On this subject there is a sharp conflict in the proofs.
The
plaintiff contends that there was a lack of reasonable or probable
cause and the defendant contends that there was reasonable or probable
cause for instituting the civil action against the plaintiff.
In
cases of civil actions reasonable or probable cause exists where there
are reasonable grounds for belief that a cause of action exists,
supported by circumstances sufficient to warrant an ordinarily prudent
person in believing that it exists.
Whether
probable cause existed does not depend upon a consideration of what the
facts actually were, but rather upon a consideration of what the facts
were as they appeared to or were known by or were believed to be by the
defendant when he/she instituted the civil suit against the plaintiff.
It
was not necessary that the defendant have actual cause to sue the
plaintiff; it was necessary only that he/she have reasonable or probable
cause for so doing.
If
you find that the defendant had reasonable or probable cause to believe
that plaintiff was civilly liable it is immaterial that the plaintiff
was in fact not liable. Even
if you believe that plaintiff was not civilly liable, he/she cannot
recover if you find that the defendant had reasonable or probable cause
to believe that he/she was liable. Nor
can you draw an inference of lack of reasonable or probable cause just
because the civil suit ended by (here state how the suit ended).
On
the other hand, if you find that the defendant did not have an honest
belief that the plaintiff was liable and the suit was thereby falsely
instituted you must conclude that there was no reasonable or probable
cause.
[Here review the facts dealing with the conflicting contentions as to reasonable or probable cause.]
Fourth. The
plaintiff must establish that the defendant was activated by a
malicious motive in instituting the civil suit against him/her.
The malice contemplated by this element is not malice in the sense that the word is sometimes used. The kind of malice I speak of means the intentional doing of a wrongful or unlawful act without just cause or excuse. Such
malice is an intentional act which an ordinarily cautious person would
realize that under ordinary circumstances damage would result to ones
person or property. The element of malice may be inferred from a lack of reasonable of probable cause.
Fifth.
The last element that must be proved is that the plaintiff suffered
damage, as I shall later define that term, as a proximate result of a
malicious prosecution.
[If the defense of advice of counsel is within the issues of the case the following should be added:]
In this case the defendant has raised the defense of advice of counsel.
This is an affirmative defense and the burden of establishing it by a
preponderance of the credible evidence is upon the defendant.
If you find that the defendant truthfully communicated to his/her
attorney all of the material facts of the case and then relied upon the
advice of his/her attorney to institute the civil suit against the
plaintiff, the plaintiff cannot recover even if you find all the
necessary elements to establish malicious prosecution.
On the other hand, the advice of an attorney will not protect a party
who consults an attorney unless all the material facts within his/her
knowledge are fully and truthfully stated to the attorney. If you find
from the evidence that in seeking the advice of counsel the defendant
did not make a full, fair and complete disclosure of all material facts
within his/her knowledge to his/her counsel, the advice of counsel is no
defense to this action.
NOTE TO JUDGE
Originally,
no cause of action was recognized in the law for the wrongful
institution of a civil action irrespective of the fact that it was
brought maliciously and without probable cause. The recovery of costs by
the defendant was considered sufficient redress. However, the
inadequacy of this remedy asserted itself and as early as 1816 our
Supreme Court established an exception to the doctrine. In Potts v. Imlay, 4 N.J.L.
382 (Sup. Ct. 1816), it was declared that an action for malicious
prosecution could not be maintained for prosecuting a civil suit unless
the defendant in that suit was arrested without cause and deprived of
his/her liberty or made to suffer other special grievance different from
and superadded to the ordinary expense of a defense. (original emphasis.) This rule has never been changed or criticized and it still represents the law of this State. Bitz v. Meyer, 40 N.J.L. 252 (Sup. Ct. 1878); Schneider v. Mueller, 132 N.J.L. 163 (E. & A. 1944).
A special grievance may consist of disbarment proceedings; Toft v. Ketchum, 18 N.J. 280 (1955) of license revocation proceedings before the Director of Milk Industry, Rainiers Dairies v. Raritan Valley Farms, Inc., 19 N.J.
552 (1955) and where plaintiffs property or business has been
interfered with by appointment of receiver, granting of injunction or
restraining order or filing of lis pendens. Mayflower Industries v. Thor Corp., 15 N.J. Super. 139 (1951), affd 9 N.J. 605 (1952).
Whether the special grievance pleaded is actionable, as a matter of law, is for the courts determination.
The
action for malicious prosecution of a civil suit is governed by the
same rules governing such an action arising out of a criminal
prosecution.[1] Prosser on Torts,
97, p. 885. In order to succeed, it must appear (1) that the suit was
brought without reasonable or probable cause; (2) that it was actuated
by malice, and (3) it has terminated favorably to the plaintiff. Shoemaker v. Shoemaker, supra. These elements must be established in addition to the special grievance already mentioned.
Malice in this connection means the intentional commission of a wrongful act without just cause or excuse. Brennan v. United Hatters, 73 N.J.L. 729 (E. & A. 1906); Kamm v. Flink, 113 N.J.L. 583 (E. & A. 1934).
In Brennan v. United Hatters, supra, Justice Pitney, for the Court, said:
But malice in the law means nothing more than the intentional doing of a wrongful act without justification or excuse.
And
what is wrongful act within the meaning of this definition? We answer,
any act which in the ordinary course will infringe upon the rights of
another to his/her damage is wrongful, except it be done in the exercise
of an equal or superior right. In Mogul Steamship Co. v. McGregor, 23 Q.B. Div.
598-613, at 744-745, Lord Justice Bower said: Now, intentionally to
that which is calculated in the ordinary course of events to damage, and
which does in fact damage another in that other persons property or
trade, is actionable if done without just cause or excuse. Such
intentional action, when done without just cause or excuse, is what the
law calls a malicious wrong.
Reasonable
or probable cause for the institution of a civil suit is the presence
of reasonable ground for belief that the cause of action exists
supported by circumstances sufficient to warrant an ordinarily prudent
man in the belief that it exists. Mayflower v. Thor, 15 N.J. Super. 139, 151-153 (Chan. Div. 1951).
COUNTERCLAIM
If
in a civil suit the defendant files a counterclaim alleging that the
main suit constitutes malicious prosecution it may well be that under
our present liberal practice rules the filing of the counterclaim would
be allowed, but trial thereon withheld pending disposition of the
original action. See Mayflower, supra, and cases cited therein.
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