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WPI 352.05 Tortious Interference With Business Expectancy—Affirmative Defense—Competition

6A WAPRAC WPI 352.05Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 352.05 (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 352.05 Tortious Interference With Business Expectancy—Affirmative Defense—Competition

(Name of defendant)claims that [his] [her] [its] conduct was justified because it occurred during the course of competition between(name of defendant)and(name of plaintiff).

To establish the defense of competition,(name of defendant)has the burden of proving each of the following propositions:

(1) That the conduct of(name of defendant)related to competition between(name of defendant)and(name of plaintiff)for the business of(name of third party);

(2) That(name of defendant)'s purpose was, at least in part, to advance(name of defendant)'s interest in competing with(name of plaintiff), and was not motivated solely by bad faith or ill will; and

(3) That(name of defendant)did not use wrongful means to compete.

NOTE ON USE

Use this instruction with WPI 352.02.01 (Tortious Interference with Business Expectancy—Burden of Proof on the Issues—With Affirmative Defense) in a tortious interference with business expectancy case, when warranted by the evidence. Do not use this instruction in a tortious interference with contract case, unless it is a contract terminable at will.

COMMENT

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.” Traditionally, such privileges and justifications have included competition. See Restatement (First) of Torts § 768 (1939); Island Air, Inc. v. LaBar, 18 Wn.App. 129, 145, 566 P.2d 972 (1977) (trial court properly awarded damages for tortious interference when competitor's use of confidential information constituted improper means). For a list of other such privileges as set forth in the Restatement, see the Comment to WPI 352.03 (Tortious Interference—Improper Purpose—Improper Means—Definitions).

Competition is one of the most frequently raised defenses. The elements are set out in Island Air, Inc. v. LaBar, 18 Wn.App. 129, 142, 566 P.2d 972 (1977), drawing from the Restatement (First) of Torts § 768 (1939):

§ 768. Privilege of Competitor.
(1) One is privileged purposely to cause a third person not to enter into or continue a business relation with a competitor of the actor if:
(a) the relation concerns a matter involved in the competition between the actor and the competitor, and
(b) the actor does not employ improper means, and
(c) the actor does not intend thereby to create or continue an illegal restraint of competition, and
(d) the actor's purpose is at least in part to advance his interest in his competition with the other.

The defense of justification or privilege on the basis of competition is only available if the conduct constituting the interference is not unlawful. Conduct that is unlawful can never fit the description of being “justified” or “privileged.” If the plaintiff challenges the legality of the defendant's conduct, the question is one for the court rather than the jury. If the court determines that the conduct was not unlawful, then it remains for the jury to determine whether the surrounding circumstances justify the conduct. Restatement (Second) of Torts § 767 cmt. l (1979). The WPI Committee follows the formulation of the Restatement (Second) by including the absence of wrongful means in the affirmative defense, even though proof of wrongful means is now, following Pleas, also a part of the plaintiff's prima facie case.

See also WPI 352.03 (Tortious Interference—Improper Purpose—Improper Means—Definitions) and its Comment.

[Current as of December 2020.]

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