§ 26-1 Malicious Prosecution - Elements

• Library: South Carolina Requests to Charge - Civil (SCBar) (2016 Ed.)

§ 26-1 Malicious Prosecution - Elements

Malicious prosecution is the institution of a proceeding with malice and without probable cause.

To recover in an action for malicious prosecution, the plaintiff must prove:

(1) the institution or continuation of original judicial proceedings, either civil or criminal;
(2) by or at the instance of the defendant;
(3) the termination of such proceedings in plaintiff's favor;
(4) defendant's malice in instituting the proceedings;
(5) lack of probable cause for the proceeding; and
(6) resulting injury or damage.

In order to sustain an action for malicious prosecution, the plaintiff must have been charged with some criminal or civil wrong and exonerated. Liability may be imputed to a defendant who instigated and set the legal proceedings in motion.

Want of probable cause is an essential element in a malicious prosecution case. The burden of proving an absence of probable cause lies with the party bringing the claim. Probable cause means the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of a prosecuting witness, that the person charged was guilty. In making...