AMI 404 Interference with Contractual Relationship or Business Expectancy—Definition—Impropriet...

Use this instruction when AMI 403 is given.

The Committee recognizes the difficulty in defining the term “improper.” This instruction states the only standard identified in the case requiring the inclusion of “improper” as an essential element of the cause of action, Mason v. Wal–Mart Stores, Inc., 333 Ark. 3, 14, 969 S.W.2d 160, 165 (1998), which quoted with approval Restatement (Second) of Torts § 767 (1977). For a discussion of specific applications of the factors set out in § 767, see Restatement (Second) of Torts §§ 768 to 773 (1965).

The Comment to this section of the Restatement characterizes the nature of the tortfeasor's conduct as involving the threats of physical violence, fraudulent misrepresentation, threat of wrongful prosecution (civil or criminal), conduct independently unlawful, offensive economic pressure, or violation of recognized ethical codes or established business customs. In Baptist Health v. Murphy, 2010 Ark. 358, at 15–16, 373 S.W.3d 269, 282, the court added consideration of the social interests in protecting the contractual interests of the plaintiff as the fifth factor to be considered in determining whether the interference was improper. See also Fisher v. Jones, 311 Ark. 450, 459, 844 S.W.2d 954, 959 (1993) (quoting favorably Restatement (Second) of Torts § 769, regarding the effect of the actor's financial interest in the business of the person induced).

In K.C. Props. of N.W. Ark., Inc. v. Lowell Inv. Partners, LLC, 373 Ark. 14, 280 S.W.3d 1 (2008), summary judgment was affirmed on this claim because the facts relied on did not establish that any interference was improper. In Murphy, 2010 Ark. 358, at 25–27, 373 S.W.3d at 286–87, the Court affirmed as not clearly erroneous the trial court's finding that the interference was improper based on its analysis of these factors.