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WPI 352.03 Tortious Interference—Improper Purpose—Improper Means—Definitions

6A WAPRAC WPI 352.03Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 352.03 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Washington State Supreme Court Committee on Jury Instructions
Part XVIII. Commercial Litigation
Chapter 352. Tortious Interference With Economic Relations
WPI 352.03 Tortious Interference—Improper Purpose—Improper Means—Definitions
[“Interference for improper purpose” is interference with an intent to harm(name of plaintiff).]
[“Interference by improper means” is interference that violates a statute, a regulation, a recognized rule of common law, or an established standard of the trade or profession.]
NOTE ON USE
Use the bracketed paragraph(s) applicable to the facts of a particular case.
This instruction will frequently be expanded, based on case law or relevant provisions of the Restatement (Second) of Torts § 767 (1979), as appropriate to the facts of a given case. See the Comment below.
In a tortious interference with contract case, this instruction may be combined with WPI 352.04 (Tortious Interference with Contract—Affirmative Defense—Legally Protected Interest). In a tortious interference with business expectancy case, this instruction may also be combined with WPI 352.05 (Tortious Interference with Business Expectancy—Affirmative Defense—Competition) or WPI 352.06 (Tortious Interference with Business Expectancy—Affirmative Defense—Financial Interest).
When the second paragraph is used, an additional instruction should be drafted to set forth the appropriate statute, regulation, common law rule, or established standard of the trade or profession.
COMMENT
In Pleas v. City of Seattle, 112 Wn.2d 794, 804, 774 P.2d 1158 (1989), the court held that “plaintiff must show not only that the defendant intentionally interfered with his business relationship, but also that the defendant had a ‘duty of non-interference’; i.e., that he interfered for an improper purpose … or … used improper means ….” See also Moore v. Com. Aircraft Interiors, LLC, 168 Wn.App. 502, 510, 278 P.3d 197 (2012); Eugster v. City of Spokane, 121 Wn.App. 799, 811, 91 P.3d 117 (2004).
Interference alone is not enough. Moore, 168 Wn. App. at 509. To be improper, interference must be wrongful by some measure beyond the fact of the interference itself, such as a statute, regulation, recognized rule of common law, or an established standard of trade or profession. Moore, 168 Wn.App. at 510.
An instruction incorporating the first paragraph was cited with approval in Westmark Development Corp. v. City of Burien, 140 Wn.App. 540, 558, 166 P.3d 813 (2007) (trial court properly entered judgment on jury verdict finding tortious interference).
According to the Restatement (Second) of Torts section 767, in “determining whether an actor's conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given” to the following factors:

  • (a) the nature of the actor's conduct;

  • (b) the actor's motive;

  • (c) the interests of the other with which the actor's conduct interferes;

  • (d) the interests sought to be advanced by the actor;

  • (e) the societal interests in protecting the freedom of action of the actor and the contractual interests of the other;

  • (f) the proximity or remoteness of the actor's conduct to the interference; and

  • (g) the relations between the parties.
Restatement (Second) of Torts § 767 (1979).
In 2005, the ABA proposed a general instruction setting forth the factors above for the jury's consideration. Nelson & Fisher, Am. Bar Ass'n Section of Litigation, Model Jury Instructions: Business Torts Litigation § 2.7 (4th ed. 2005). However, the WPI Committee is of the view that such an instruction is too vague to provide helpful guidance, and suggests instead an instruction tailored to the claims of the case.
With regard to improper purpose, in Pleas the court used the formulation of “an improper objective of harming the plaintiff.” Pleas, 112 Wn.2d at 803–04 (citing Top Serv. Body Shop, Inc. v. Allstate Ins. Co., 283 Or. 201, 582 P.2d 1365 (1978)). See also Westmark, 140 Wn.App. at 558. To the extent that such a purpose may be justified or privileged, the defendant may have an affirmative defense, such as those set forth in WPI 352.04 (Tortious Interference with Contract—Affirmative Defense—Legally Protected Interest), WPI 352.05 (Tortious Interference with Business Expectancy—Affirmative Defense—Competition), or WPI 352.06 (Tortious Interference with Business Expectancy—Affirmative Defense—Financial Interest).
Improper purpose or motive was also examined in Cherberg v. Peoples National Bank, 88 Wn.2d 595, 605, 564 P.2d 1137 (1977), in which the court held that the defendant-lessor could be sued by the plaintiff-lessee for tortious interference with business expectancy, even though the lessor's conduct also constituted a breach of the lease agreement. The court stated:
Tort liability … can properly be imposed, as it is here, when the evidence adequately establishes the underlying motive for the intentional breach by the lessor was not the economic viability of the lessor's investment, in its present state, but rather was economic considerations outside the scope of the parties' obligations under their existing agreement.
A party to a lease or contract should not be held liable in tort for a willful breach of an agreement which it is no longer economically feasible for the parties to respect … [But here there is] evidence in the record from which the jury could have inferred the lessor used the [unrepaired] condition of the wall as a means to oust the petitioners and gain possession of the leased premises in order that the lessor might put those premises to a different and perhaps considerably more profitable use. Proof of a breach based upon such a motive demonstrates a failure to make a good faith effort to meet obligations under the lease and may give rise to liability in tort.
Cherberg, 88 Wn.2d at 605; see also Schmerer v. Darcy, 80 Wn.App. 499, 910 P.2d 498 (1996) (trial court properly dismissed claim for tortious interference when lienholder was seeking to protect legitimate interest).
The definition of “improper means” in the instruction is based upon the statement in Pleas v. City of Seattle, 112 Wn.2d 794, 804, 774 P.2d 1158 (1989): “Interference can be ‘wrongful’ by reason of a statute or other regulation, or a recognized rule of common law, or an established standard of trade or profession.” Whether the conduct is lawful is a question for the court. Thereafter, the question of whether surrounding circumstances justify the conduct, and the existence of such circumstances, are questions of fact for the jury. Restatement (Second) of Torts § 767 cmt. l (1979).
Improper means also have been described as including physical violence, fraudulent misrepresentation, or threats of illegal conduct. Restatement (Second) of Torts § 767 cmt. c (1979). Improper means also include a city's enforcement of an ordinance that had been invalidated by a court order. Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 829 P.2d 765 (1992).
Threatening to file a lawsuit may constitute an interference by improper means when the interferor “has no belief in the merit of the litigation” or threatens litigation “only to harass the third parties and not to bring his claim to definitive adjudication.” Moore, 168 Wn.App. at 509 (quoting Restatement (Second) of Torts § 767 cmt. c (1979)). For example, threatening to file a lawsuit may constitute an interference for an improper purpose if, the interferor is acting out of ill will, greed, retaliation, or hostility or is motivated by an intent to harm the plaintiff. Moore, 168 Wn.App. at 509 (citing Restatement (Second) of Torts § 767 cmt. d (1979)).
In addition, the Restatement (Second) of Torts contains a number of specific rules defining various actions or motives as “proper” or “improper.” See, e.g., Restatement (Second) of Torts §§ 768–73 (1979). In the Restatement (First) of Torts, however, the same actions were analyzed as “privileges.” See Restatement (First) of Torts §§ 768–73 (1939).
According to Pleas v. City of Seattle, 112 Wn.2d 794, 804, 774 P.2d 1158 (1989), even though proof of improper purpose or improper means is now part of the plaintiff's prima facie case, “matters of privilege or justification continue to be affirmative defenses to be raised by the defendant.” Pleas, 112 Wn.2d at 804. Some of those matters that were formerly considered privileges in the Restatement are therefore presented as defenses, see WPI 352.05 (Tortious Interference with Business Expectancy—Affirmative Defense—Competition) or WPI 352.06 (Tortious Interference with Business Expectancy—Affirmative Defense—Financial Interest).
[Current as of December 2020.]
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