N.J. Model Civil Jury Charge 8.47B

8.47B MALICIOUS PROSECUTION BASED UPON PRIOR CIVIL

PROCEEDINGS (Approved before 1984)

A. Compensatory Damages

Compensatory damages are those which you find that plaintiff sustained as a

proximate result of the defendant’s wrongdoing. (In cases in which an arrest was

made in connection with a civil suit, compensatory damages consist of injury and

loss to reputation, fame or character, time spent in jail or custody, humiliation,

physical and mental suffering, distress, embarrassment, nervous shock, impairment

of social and business standing, loss of earnings, and reasonable costs and counsel

fees incurred in defending the action maliciously brought. In cases where no arrest

but other special grievance is shown, damages would include business losses and

the like, and reasonable costs and counsel fees.)

In this connection the word “pr oximate” means that the malicious

prosecution must have been the efficient, producing cause of such injury or loss.

[Discuss testimony relating to proof of damages and to out of pocket

items such as wage loss, medical and hospital bills, counsel fees in

defense of the prosecution, etc.]

Your evaluation of plaintiff’s clai m for compensatory damages must be

expressed in terms of one lump sum for all of the elements that you find comprise

that claim.

B. Punitive Damages (Approved 1/97)

NOTE

See either Model Civil Charge 8.60 or 8.61 depending on when cause

of action was filed. However, in one important respect, the general

charges on punitive damages should be modified in a malicious

prosecution action based upon a prior civil action. In such a

malicious prosecution action, the jury should be specifically

instructed that the “malice” necessary to support a claim for malicious

prosecution is very different than the “malice” necessary to justify an

award of punitive damages.

The following language should, ther efore, be inserted into the

punitive damages charges immediately after the definitions of malice

and willfulness or wantonness in 8.60 or 8.61.

As you recall, when I described the elements of a malicious prosecution

action I instructed you about the defendant’s intent that is necessary to return a

verdict in favor of plaintiff. To find in favor of plaintiff, you must find that the

defendant intentionally committed a wr ongful or unlawful act without any

justification or excuse. Your finding of that kind of intent on the part of the

defendant does not, without more, justify an award of punitive damages to the

plaintiff.

However, you may award punitive dama ges to the plaintiff if you do find

that the defendant initiated the civil acti on maliciously or in willful or wanton

disregard of the plaintiff’s rights, as I have just defined these terms for you.