WPI 352.02 Tortious Interference With Business Expectancy—Burden of Proof on the Issues—No Affi...
6A WAPRAC WPI 352.02Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 352.02 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Part XVIII. Commercial Litigation
Chapter 352. Tortious Interference With Economic Relations
WPI 352.02 Tortious Interference With Business Expectancy—Burden of Proof on the Issues—No Affirmative Defense
To recover on a claim of tortious interference with business [relationship] [or] [expectancy],(name of plaintiff)has the burden of proving each of the following propositions:
(1) That at the time of the conduct at issue,(name of plaintiff)had a business [relationship] [or] [expectancy] with a probability of future economic benefit for(name of plaintiff);
(2) That(name of defendant)knew of the existence of that business [relationship] [or] [expectancy];
(3) That(name of defendant)intentionally induced or caused the termination of the business [relationship] [or] [expectancy];
(4) That(name of defendant)'s interference was for an improper purpose or by improper means, as defined later in these instructions; and
(5) That the conduct of(name of defendant)was a proximate cause of damages to(name of plaintiff).
If you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for(name of plaintiff)[on this claim]. On the other hand, if you find that any of these propositions has not been proved, your verdict should be for(name of defendant)[on this claim].
NOTE ON USE
In a tortious interference case that does not involve inducing or causing breach of a valid contract, use this instruction, rather than WPI 352.01 (Tortious Interference with Contract—Burden of Proof on the Issues—No Affirmative Defense). If there are affirmative defenses, use WPI 352.02.01 (Tortious Interference with Business Expectancy—Burden of Proof on the Issues—With Affirmative Defenses) instead of this instruction.
Use the applicable bracketed phrase or phrases. If a contract terminable at will is involved, use “relationship” rather than “expectancy.”
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).
When appropriate to the facts of the case, this instruction may be used with WPI 352.03 (Tortious Interference—Improper Purpose—Improper Means—Definitions).
If defendant has interfered in a business relationship between plaintiff and a third party that does not involve a valid contract, the plaintiff may still have a valid cause of action for intentional interference with business expectancy. Scymanski v. Dufault, 80 Wn.2d 77, 84–85, 491 P.2d 1050 (1971).
Prospective contractual relationships, other than contracts to marry, are protected against intentional interference when the potential contract would be of pecuniary advantage to the plaintiff. For example, interference with the prospect of obtaining employment or an employee, or the opportunity to sell or buy land, services, or chattel, may be actionable. Scymanski, 80 Wn.2d at 83–84 (citing Restatement (First) of Torts § 766A (1939)). “All that is needed is a relationship between parties contemplating a contract, with at least a reasonable expectation of fruition.” Scymanski, 80 Wn.2d at 84–85.
The plaintiff “must show that the future opportunities and profits are a reasonable expectation and not based on merely wishful thinking.” Sea-Pac Co. v. United Food & Com. Workers Local Union 44, 103 Wn.2d 800, 805, 699 P.2d 217 (1985).
The business expectancy must be valid, or legitimate. Thus, in a situation in which a contract is void for violation of public policy, an action based on business expectancy will be defeated. 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); see Murray Publ'g Co. v. Malmquist, 66 Wn.App. 318, 832 P.2d 493 (1992) (burden on defendant to show business expectancy would constitute unlawful restraint of trade). Cf. Restatement (Second) of Torts § 774 (1979); Restatement (First) of Torts § 774 (1939).
To establish a valid business expectancy, the plaintiff may show “something less than an enforceable contract.” Greensun Grp., LLC v. City of Bellevue, 7 Wn.App.2d 754, 768, 436 P.3d 397 (2019), review denied 193 Wn.2d 1023 (2019). “[A] ‘valid business expectancy includes any prospective contractual or business relationship that would be of pecuniary value.’” Greensun, 7 Wn. App.2d at 768 (quoting Newton Ins. Agency & Brokerage, Inc. v. Caledonian Ins. Group. Inc., 114 Wn. App. 151, 158, 52 P.3d 30 (2002)). This includes “an opportunity to obtain prospective customers.” Greensun, 7 Wn.App.2d at 768 (emphasis in original) (quoting Caruso v. Local Union No. 690, 33 Wn.App. 201, 207, 653 P.2d 638 (1982), reversed on other grounds, 100 Wn.2d 343, 670 P.2d 240 (1983)).
With the exception of the analysis of what constitutes proper or improper interference, or the related applicability of defenses such as competition or financial interest, recent Washington cases usually do not distinguish between tortious interference with contract and tortious interference with business expectancy or relationships in their analysis of the remaining elements. See the Comment to WPI 352.01 (Tortious Interference with Contract—Burden of Proof on the Issues—No Affirmative Defense) for comments on elements (2) through (5), and the question of whether matters are properly analyzed as issues of proper or improper conduct, or affirmative defenses.
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.).
[Current as of January 2021.]
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