N.J. Model Civil Jury Charge 3.13

3.13 MALICIOUS PROSECUTION BASED UPON A PRIOR CIVIL

PROCEEDING (Approved before 1984)

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 sp ecial grievance such as whether plaintiff

was arrested in connection with said su it 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 ar e (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 ther e 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 doe s 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 immate rial that the plaintiff was in fact not

liable. Even if you believe that plain tiff was not civilly lia ble, he/she cannot

recover if you find that the defendant had reasonable or probable cause to believe

that he/she was liable. No r 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 th at 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 re sult 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 te rm, 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 ag ainst 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 wa s recognized in the law for the

wrongful institution of a civil action irrespective of the fact that it was

brought maliciously and without pr obable 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 consis t 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 act uated 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

1Since these actions are governed essentially by the same rules, consult the notes dealing with

malicious prosecution of a criminal action for any elements not discussed herein.

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 mean s nothing more than the

intentional doing of a wrongful act without justification

or excuse.

And what is wrongful act w ithin 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 c ourse of events to damage,

and which does in fact dama ge 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.