N.C.P.I.—Civil 801.01

The (state number) issue reads:

"Did the defendant maliciously [institute] [continue] a civil

proceeding against the plaintiff?"

On this issue the burden of proof is on the plaintiff. This means

that the plaintiff must prove, by the greater weight of the evidence, four

things:1

First, that the defendant [instituted a civil proceeding][caused a

civil proceeding to be continued]2 against the plaintiff without probable

cause. "Probable cause" exists if there are facts and circumstances which

would cause a reasonable person to believe that the proceeding is

justified.3 You should consider only the facts and circumstances that the

defendant knew or should have known at the time the proceeding was

[instituted] [continued].

Second, that the defendant [instituted] [continued] the proceeding

against the plaintiff with malice. "Malice" exists when a person acts out

of a motive of ill will, spite, grudge, revenge or oppression.4 "Malice"

exists when a person commits a wrongful act intentionally and without

excuse or just cause, or proceeds recklessly in disregard of the rights of

others without probable cause.5 ("Malice" also exists when a person's

primary goal in [commencing] [continuing] the prosecution is to

accomplish some collateral purpose.)6 You are permitted, but are not

required, to infer the existence of malice from a lack of probable cause.7

Third, that the proceeding ended in the plaintiff's favor. The

plaintiff need not have won on the merits.8 (It is sufficient that the

proceeding is dismissed because of the defendant's failure to appear and

proceed with the action.)9 (It is sufficient that the proceeding was

dismissed by the [defendant] [judge], with or without the plaintiff's

consent.)10

Fourth, that as a result of the defendant's [institution]

[continuation] of the civil proceeding, the plaintiff experienced some type

of special damage. "Special damage" results from substantial

interference with the plaintiff's person or property.11

Finally, as to this issue on which the plaintiff has the burden of

proof, if you find by the greater weight of the evidence that the

defendant maliciously prosecuted the plaintiff, then it would be your duty

to answer this issue "Yes" in favor of the plaintiff.

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue "No" in favor of the defendant.