AMI 413 Issues—Claim for Damages Based Upon Malicious Prosecution—Burden of Proof

Do not use the bracketed paragraph when the case is submitted on interrogatories, or when affirmative defenses are in issue.

When this instruction is given, also use AMI 414.

See AMI 2231 for an element of damages recoverable for this tort.

The elements of the tort of malicious prosecution are stated in Harold McLaughlin Reliable Truck Brokers, Inc. v. Cox, 324 Ark. 361, 368, 922 S.W.2d 327, 331 (1996); Farm Service Co-operative, Inc. v. Goshen Farms, Inc., 267 Ark. 324, 331–32, 590 S.W.2d 861, 865 (1979); and Kellerman v. Zeno, 64 Ark. App. 79, 83–84, 983 S.W.2d 136, 138 (1998). The fifth element of this instruction was revised for the 2013 edition following the opinion of Stokes v. Southern States Cooperative, 651 F.3d 911, 917 (8th Cir. 2011) (predicting the Arkansas Supreme Court would define “malice” in the context of malicious prosecution as “any improper or sinister motive for instituting the suit”). The revision is supported by Arkansas case law. See Sundeen v. Kroger, 355 Ark. 138, 147, 133 S.W.3d 393, 398 (2003); Cordes v. Outdoor Living Ctr., 301 Ark. 26, 32, 781 S.W.2d 31, 33–34 (1989); Foster v. Pitts, 63 Ark. 387, 391, 38 S.W. 1114, 1114 (1897). It is also supported by case law from other states, the Restatement (Second) of Torts § 676 (1981), and other secondary authorities. See Prosser and Keeton on Torts § 119 (W. Page Keeton et al eds., 5th ed. 1984); Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, Torts and Compensation (West, 6th ed. 2009). But see Wal-Mart Stores, Inc. v. Binns, 341 Ark. 157, 164–65, 15 S.W.3d 320, 325 (2000) (suggesting without citation to authority that “ill will, hatred, or revenge” is required to establish a showing of malice in a malicious prosecution claim in reversing an award of punitive damages).

“Malice may be inferred from lack of probable cause, but … lack of probable cause may not be inferred from malice.” Cordes v. Outdoor Living Ctr., Inc., 301 Ark. at 31, 781 S.W.2d at 33 (1989) (citing Malvern Brick & Tile Co. v. Hill, 232 Ark. 1000, 1004, 342 S.W.2d 305, 307 (1961)). “[O]ne who continues a civil proceeding [or a criminal prosecution] that has properly been begun or one who takes an active part in its continuation for an improper purpose after he has learned that there is no probable cause for the proceeding [or prosecution] becomes liable as if he had then initiated the proceeding [or prosecution].” Restatement Second Torts §§ 655 cmt. c., 674 (1977). The malicious prosecution of a case, improperly continued, may also constitute an abuse of process. Routh Wrecker Serv., Inc. v. Washington, 335 Ark. 232, 238–39, 980 S.W.2d 240, 243 (1998).

Although nolle pros of a criminal proceeding is a favorable termination, Culpepper v. Smith, 302 Ark. 558, 792 S.W.2d 293 (1990), non-suit of a civil proceeding is not. Farm Service Coop., 267 Ark. at 335, 590 S.W.2d at 867. But see Sundeen v. Kroger, 355 Ark. at 146, 133 S.W.3d at 398 (2003) (holding that a district court's conviction of a defendant is conclusive proof of the existence of probable cause even though the prosecutor nolle prossed all charges on a de novo appeal to the circuit court). “[T]here [is] no basis for the filing of a counterclaim for malicious prosecution in the same action that [is] alleged to … [be] the basis of the malicious prosecution.” Forever Green Athletic Fields, Inc. v. Lasiter Constr., Inc., 2011 Ark. App. 347, at 16.

Malicious prosecution is an intentional tort to which comparative fault is inapplicable. Kellerman, 64 Ark. App. at 88–89, 983 S.W.2d at 141.

Submission of punitive damages is appropriate in a malicious prosecution case where there has been a showing of “willfulness, watonness, or conscious indifference” on the part of the defendant. See Harold McLaughlin Reliable Truck Brokers, Inc., 324 Ark. at 371, 922 S.W.2d at 333 (holding that the jury could have concluded that the defendants mischaracterized facts to a prosecutor for the improper purpose of intimidating the plaintiff and forcing the plaintiff to act). In submitting an instruction on punitive damages, the plaintiff must at least include the scienter standard required by the underlying tort, and it is error to give a punitive damages instruction that requires a lesser standard. See Wal-Mart v. Binns, 341 Ark. at 164–65, 15 S.W.3d at 325. See also AMI 2218 and accompanying Comment.

It is a defense to a charge of malicious prosecution that the defendant presented to competent counsel “a full, fair, and truthful disclosure of all facts known to him” and then acted upon the advice of such counsel in good faith in commencing the proceeding. See Harold McLaughlin Reliable Truck Brokers, Inc., 324 Ark. at 368, 922 S.W.2d at 332–33; AMI 415.