WPI 352.01 Tortious Interference With Contract—Burden of Proof on the Issues—No Affirmative Def...

This instruction is designed for use in a tortious interference with contract case, without an affirmative defense. For a tortious interference with contract case with one or more affirmative defenses, use WPI 352.01.01 (Tortious Interference with Contract—Burden of Proof on the Issues—With Affirmative Defenses).

Use bracketed material as applicable. Use the bracketed phrase about inducement or causation of breach of contract when it is supported by the evidence. Use the bracketed phrases about prevention of performance or imposition of additional burden or expense of performance when they are supported by the evidence.

For a case based on tortious interference with a business relationship or expectancy that has not ripened into a contract, use WPI 352.02 (Tortious Interference with Business Expectancy—Burden of Proof on the Issues—No Affirmative Defense) instead of this instruction.

Use this instruction with WPI 21.01 (Meaning of Burden of Proof) and with an instruction defining proximate cause—WPI 15.01 (the traditional instruction) or WPI 15.01.01 (the alternative instruction). Use this instruction with WPI 352.03 (Tortious Interference—Improper Purpose—Improper Means—Definitions) when appropriate to the case.

If the alleged interference is with a contract that is terminable at will, use WPI 352.02 (Tortious Interference with Business Expectancy—Burden of Proof on the Issues—No Affirmative Defense) instead of this instruction. See the Comment to WPI 352.02 (Tortious Interference with Business Expectancy—Burden of Proof on the Issues—No Affirmative Defense).

This instruction has been modified for this edition to allow for prevention of performance, imposition of additional burden, or expense of performance claims based on the evidence presented during trial.

This instruction is based upon the court's formulation in Pacific Northwest Shooting Park Association v. City of Sequim, 158 Wn.2d 342, 351, 144 P.3d 276 (2006):

A party claiming tortious interference with a contractual relationship or business expectancy must prove five elements:

See also Leingang v. Pierce Cnty. Med. Bureau, 131 Wn.2d 133, 157, 930 P.2d 288 (1997); Commodore v. Univ. Mech. Contractors, Inc., 120 Wn.2d 120, 137, 839 P.2d 314 (1992); Moore v. Com. Aircraft Interiors, LLC, 168 Wn.App. 502, 508–09, 278 P.3d 197 (2012).

Tortious inducement of breach of a contract is a cause of action separate and distinct from tortious prevention of performance of a contract or increasing the burden or expense of performance. Glacier Nw., Inc. v. Int'l Bhd. of Teamsters Local Union No. 174, Wn.2d. , 500 P.3d 119, 137–38 (2021) (citing Restatement (Second) of Torts § 766A (1979)); see also Eserhut v. Heister, 52 Wn.App. 515, 518, 762 P.2d 6 (1988); Pacific Typesetting Co. v. Int'l Typographical Union, 125 Wash. 273, 216 P. 358 (1923).

Valid contract. A contract may be valid, and therefore provide the basis for a tortious interference with contract claim, even though it is voidable. See Restatement (Second) of Torts § 766, cmt. f (1979). Similarly, there may be a cause of action for interference with contract, even though the contract is terminable at will. Restatement (Second) of Torts § 766 cmt. g (1979); cf. Calbom v. Knudtzon, 65 Wn.2d 157, 396 P.2d 148 (1964) (discussing termination of contract that is terminable at will as interference with business expectancy). But see Woody v. Stapp, 146 Wn.App. 16, 24, 189 P.3d 807 (2008) (“Generally, at-will employees do not have a business expectancy in continued employment.”).

A plaintiff must show that the interferer was an intermeddling third party; a party to the relationship cannot be held liable for tortious interference. Houser v. City of Redmond, 91 Wn.2d 36, 39, 586 P.2d 482 (1978); Vasquez v. State, 94 Wn.App. 976, 989, 974 P.2d 348 (1999).

If there is no valid contract between the plaintiff and a third party, the plaintiff may still have a valid cause of action for intentional interference with business expectancy. Scymanski v. Dufault, 80 Wn.2d 77, 491 P.2d 1050 (1971).

If the agreement is invalid or void because it is illegal or contrary to public policy, a defendant will not be liable for preventing its performance. Restatement (Second) of Torts § 774 (1979); see also Davidson v. Hensen, 135 Wn.2d 112, 128–29 n.7, 954 P.2d 1327 (1998) (distinguishing statutory violations that void an agreement from those that merely render an agreement unenforceable).

Knowledge. Although knowledge of the existence of a contract, or business relationship, is an essential element of tortious interference, “it is sufficient if the evidence reveals that the alleged interferer had knowledge of facts giving rise to the existence of the relationship. It is not necessary that the interferer understood the legal significance of such facts.” Calbom, 65 Wn.2d at 165. The alleged interferer must have had such knowledge at the time of the interfering conduct. Fisher v. Parkview Props, Inc., 71 Wn.App. 468, 479, 859 P.2d 77 (1993); see also Roger Crane & Assocs. v. Felice, 74 Wn.App. 769, 778, 875 P.2d 705 (1994).

Intentional interference. The plaintiff must show that the interference was intentional. White River Ests. v. Hiltbruner, 134 Wn.2d 761, 768, 953 P.2d 796 (1998); Woody, 146 Wn.App. at 23. The rule may apply not only to situations in which the interference is a primary purpose of the interferer, but also to situations “in which the actor does not act for the purpose of interfering with the contract or desire it but knows that the interference is certain or substantially certain to occur as a result of his action.” Restatement (Second) of Torts § 766 cmt. j (1979). The incidental nature of the interference may, however, be taken into account in determining whether the conduct was improper.

Improper purpose or improper means. The plaintiff has the burden of proving improper purpose or improper means as part of the plaintiff's burden since Pleas v. City of Seattle, 112 Wn.2d 794, 774 P.2d 1158 (1989). See also Moore, 168 Wn.App. at 509 (“[O]ur Supreme Court definitely added the element of improper purpose or means to the plaintiff's prima facie burden …”); Koch v. Mut. of Enumclaw Ins. Co., 108 Wn.App. 500, 506–07, 31 P.3d 698 (2001) (placing burden on plaintiff to show that doctor's advice was dishonest or offered in bad faith); WPI 352.03 (Tortious Interference—Improper Purpose—Improper Means—Definitions) and its Comment.

Affirmative defense issues in this context have not been addressed in Washington. The Restatement (First) of Torts treated a number of circumstances or categories of conduct on the part of defendants as matters of privilege or justification. See Restatement (First) of Torts §§ 768–73 (1939); see also the examples cited in the Comment to WPI 352.03 (Tortious Interference—Improper Purpose—Improper Means—Definitions). The Restatement (Second) of Torts, however, analyzes most of the same situations and categories of conduct as matters of proper or improper conduct. Restatement (Second) of Torts §§ 768–73 (1979).

In Pleas, the court made proof of improper interference part of the plaintiff's case, but also held that “matters of privilege and justification continue to be affirmative defenses to be raised by the defendant.” Pleas, 112 Wn.2d at 804. The WPI Committee has therefore included proof of improper purpose or improper means in this instruction, while setting forth such matters as legally protected interest, financial interest, or competition as defenses in WPI 352.04– .06.

Damages. Damages based on a claim of tortious interference may include not only economic loss but also damages for mental anguish, and for discomfort and inconvenience. Cherberg v. Peoples Nat'l Bank, 88 Wn.2d 595, 602, 564 P.2d 1137 (1977). The plaintiff must “tie … losses to specific relationships” between the plaintiff and “identifiable third parties.” Pac. Nw. Shooting Park, 158 Wn.2d at 352–53 (emphasis in original).

Such damages must be actually caused by the interference. Sea-Pac Co. v. United Food & Com. Workers, 103 Wn.2d 800, 805, 699 P.2d 217 (1985).

In a case involving termination of plaintiff's contract for professional services, the proper measure of damages was the value of the business expectancy interfered with, and the defendant had the burden of offering evidence bearing on any claimed off-set for costs involved in performance. Calbom, 65 Wn.2d at 166–67.

Cross-reference. An extended discussion of tortious interference can be found in DeWolf & Allen, 16A Washington Practice, Tort Law and Practice §§ 23:2–:6 (5th ed.).