27 Malicious Prosecution

• Library: Elements of Civil Causes of Action (SCBar) (2015 Ed.)

27 Malicious Prosecution

A. Definition

The institution of a proceeding with malice and without probable cause.¹

B. Elements

To recover in a claim for malicious prosecution, plaintiff must show:

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

C. Elements Defined

1. Institution or Continuation of Original Judicial Proceedings

a. Proximate cause

In order to sustain an action for malicious prosecution, plaintiff must have been charged with some criminal or civil wrong and exonerated.³ Liability may be imputed to a defendant who instigated and set the legal proceedings in motion.⁴ Therefore, if an unlawful arrest of respondent was the proximate result of the defendant's conduct, the defendant may be held liable for malicious prosecution.

Generally when a police officer has discretion to make a decision about whether to prosecute, that discretion renders the decision his or her own and the person who provided the information is not liable. ⁵

2. Lack of Probable Cause

a. Probable cause defined

The Supreme Court of South Carolina has cautioned against allowing suits for malicious prosecution to inhibit free access to the courts.⁶ Therefore, in a malicious prosecution action, the courts place the burden upon the plaintiff to show probable cause,⁷ and when a court determines if probable cause exists, it must consider the facts from the point of view of the party prosecuting.⁸ Probable cause is defined as "the extent of such facts and circumstances as would excite the belief in a reasonable mind acting on the facts within the knowledge of the prosecutor that the person charged was guilty of a crime for which he has been charged."⁹ Furthermore, "only the facts and circumstances which were known or should have been known to the prosecuting witness at the time of the institution of prosecution should be considered."¹⁰ An uncharged offense may establish probable cause.¹¹A true bill of indictment is considered prima facie evidence of probable cause.¹²

b. Guilt or innocence irrelevant

It is important to note that the plaintiff's actual guilt or innocence is generally irrelevant to a finding of probable cause.¹³ Instead, want of probable cause is defined as "the absence of reasonable cause to believe the plaintiff is guilty."¹⁴ A conviction, even though subsequently reversed or set aside, conclusively establishes probable cause absent a showing the conviction was procured through fraud, perjury or other undue means.¹⁵ Determination of probable cause is ordinarily a jury matter,¹⁶ unless there is a complete absence of any ill will toward the defendant; then it becomes a question of law for the court.¹⁷

3. Malice

Malice is defined as "the intentional doing of a wrongful act without just cause or excuse" and "may be inferred from a want of probable cause."¹⁸ Although malice may be inferred from a want of probable cause, a want of probable cause cannot be inferred from any degree of malice.¹⁹ As malice may be inferred from a want of probable cause, the first question for determination of malice is whether there was evidence from which the jury could have found a want of probable cause.²⁰ Lack of probable cause alone may give rise to an inference of malice sufficient to carry the question to the jury.²¹ The plaintiff need not show actual malice to successfully maintain an action for malicious prosecution.²²

4. Termination of Original Proceeding, Beyond Revival

The termination of the previous action must have been in plaintiff's favor.²³ It is enough to support an action for malicious prosecution that the proceeding was terminated (such as with an acquittal) so that it cannot be revived and the prosecutor, if he proceeds further, will be put to a new action.²⁴ A conviction is a bar to a malicious prosecution action, and even if the case is overturned on appeal, malicious prosecution will not lie because probable cause has been established.²⁵ A grand jury's true bill of indictment is also prima facie evidence of probable cause in an action for malicious prosecution.²⁶ Dismissal of criminal charges by entry into a pre-trial intervention program (PTI) is not a termination in the plaintiff's favor.²⁷

5. Damages - Actual and Special

In a malicious prosecution case, the plaintiff may recover whatever actual damages he has suffered as a natural result of the wrong, including, but not limited to: (a) mental pain and suffering; (b) fright; (c) nervousness, (d) indignity, (e) humiliation, (f)) embarrassment; and (g) insults,²⁸ and (h) injury to reputation and person.²⁹ Special damages may be awarded in a malicious prosecution case if supported by specific pleading and proof. These damages include: (1) damages for discomfort or injury to plaintiff's health; (2) loss of time (3) deprivation of the society of his family; (4) reasonable attorney fees, and occasionally the attorney fees in the prior criminal action; (5) specific financial loss, as in present or prospective employment, limited by the doctrine of proximate cause.³⁰

D. Defenses

1. Plaintiff's Guilt

One defense may be to offer as evidence facts known to the defendant subsequent to prosecution (such as the fact of plaintiff's guilt).³¹ This defense, however, is narrow. In Smith v. Harris Teeter Supermarket, Inc., the court declared, "[i]rrespective of the questions of malice and want of probable cause, the plaintiff's guilt is a complete defense to an action for malicious prosecution except where the innocence of the plaintiff in the malicious prosecution either is conceded or is not challenged."³²

2. Good Faith Reliance on Fully Informed Counsel

Additionally, good faith reliance upon advice of fully informed counsel may establish probable cause sufficient to provide a defense.³³ To assert this defense, the defendant must show she sought the advice in good faith, acted in good faith and believed the charge was true.³⁴ The defendant must also present evidence that she made a fair, full and truthful disclosure of all the facts to her attorney.³⁵ Although consultation with an attorney is not conclusive of good faith, it is one of the circumstances to be considered by the jury in determining if the defendant acted in good faith in swearing out the warrant.³⁶

3. Governmental Immunity

The South Carolina Tort Claims Act (SCTCA) bars suits against the government (but not against the individual) for conduct which constitutes "actual malice."³⁷ However, because a plaintiff need not show actual malice to successfully maintain an action for malicious prosecution, the Court of Appeals has said the action is not barred by the Act because of its elements.³⁸ The Act is the exclusive and sole remedy for any tort committed by an employee of a governmental entity while acting within the scope of his or her official duty and must be liberally construed in favor of limiting the liability of the governmental entity.³⁹

4. Actions Against Attorneys

A suit for malicious prosecution does not ordinarily lie against an attorney who filed suit on behalf of his client.⁴⁰ In his professional capacity, the attorney is not liable, except to his or her client and those in privity with his client, for injury allegedly arising out of the performance of his professional activities.⁴¹ Accordingly, an attorney who acts in good faith with the authority of his client (even in the absence of probable cause) is not liable to a third party in an action for malicious prosecution.⁴² Such a suit is properly brought against the party to the original action, not the attorney representing him.⁴³

However, an attorney may be liable for acts taken outside the scope of the professional relationship.⁴⁴ For example, an attorney may be liable for conspiracy where, "in addition to representing his client, he breaches some independent duty to a third person or acts on his own personal interest, outside the scope of representation of his client."⁴⁵ In Stiles v. Onorato,⁴⁶ the Court refused to extend absolute immunity to an attorney and adopted the position that an attorney may be held liable where he acts in bad faith or for his own personal motivations.⁴⁷

5. Other Defenses

Collateral estoppel may also be a defense to a claim for intentional infliction of emotional distress. The South Carolina Supreme Court has held that as long as a defendant has entered a guilty plea freely and voluntarily, that admission of guilt fully and fairly litigates the matter in the same manner as a contested trial in which a defendant is adjudicated guilty and, thus the defendant may be collaterally estopped from litigating the same issue in a subsequent civil suit.⁴⁸ The court also said that when a defendant enters an Alford plea — a guilty plea accompanied by an assertion of innocence — at a criminal proceeding that plea has the same preclusive effect as a standard guilty plea.

E. Remedies

Actual and punitive damages⁴⁹ may be awarded in malicious prosecution actions.⁵⁰In a case from the 1950s an award of $7,000 actual and $3,000 punitive damages was considered "substantial" but not "so grossly excessive as to indicate that the jury was moved by passion, prejudice, bias or caprice ...".⁵¹

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Notes:

^[1] See, e.g., Elletson v. Dixie Home Stores, 231 S.C. 565, 572, 99 S.E.2d 384 (1947).

^[2] Jordan v. Deese, 317 S.C. 260, 452...