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 one’s 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, Rainier’s Dairies v. Raritan Valley Farms,
Inc., 19 N.J. 552 (1955) and
where plaintiff’s 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), aff’d
9 N.J. 605 (1952).
Whether the special grievance pleaded is actionable,
as a matter of law, is for the court’s 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 person’s 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.
