Chapter 25 - § 25.3 • ELEMENTS

• Jurisdiction: Colorado

§ 25.3 • ELEMENTS

§ 25.3.1—Claims Arising from Civil Cases

In circumstances where a prior civil action forms the basis for it, the plaintiff in the subsequent action must establish the following elements to prevail on a malicious prosecution claim:

1) The defendant contributed to bringing a prior action against the plaintiff;
2) The prior action ended in favor of the plaintiff;
3) No probable cause;
4) Malice; and
5) Damages.⁵

§ 25.3.2—Claims Arising from Criminal Cases

Malicious prosecution claims commonly arise out of criminal cases.⁶ Colorado's pattern civil jury instructions are tailored to the elements "for use in malicious prosecution actions arising out of criminal, rather than civil, cases."⁷ Under the jury instructions, for a plaintiff to recover against a defendant on a civil claim for malicious prosecution arising from a criminal case, the plaintiff must prove the following elements:

1) A criminal case was brought against the plaintiff;
2) The criminal case was brought as a result of an oral or written statement made by the defendant;
3) The criminal case ended in favor of the plaintiff;
4) The defendant's statement made against the plaintiff was made without probable cause;
5) The defendant's statement made against the plaintiff was motivated by malice toward the plaintiff; and
6) The criminal case caused the plaintiff to suffer damages.⁸

The element concerning probable cause not only includes situations where there was never probable cause, but also one in which the criminal complaint was initially filed with probable cause but the defendant continued to prosecute it after he, she, or it no longer had probable cause to believe the defendant was guilty.⁹

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Notes:

^[5] Hewitt, 154 P.3d at 411 (citing Thompson v. Maryland Cas. Co., 84 P.3d 496, 503 (Colo. 2004); CJI-Civ. 17:1 (CLE ed. 2018)).

^[6] Also, when someone is maliciously prosecuted, "state actors face potential liability under 42 U.S.C. § 1983. See Schoenfeld v. Sides, 719 F. App'x 854, 855 (10th Cir. 2018). "A claim for malicious prosecution under 42 U.S.C. § 1983 may be grounded in the rights guaranteed by the Fourth Amendment." Garcia v. Adams County, No. 16-cv-01977-PAB-NYW, 2017 WL 4251931 (D. Colo. Sept. 25, 2017) (citing Wilkins v. DeReyes, 528 F.3d 790, 797 n.4 (10th Cir. 2008)). "The elements of the common law tort of malicious prosecution, as applicable in a § 1983 claim, are: (1) the defendant caused the plaintiff's continued confinement or prosecution; (2) the...