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WPI 352.06 Tortious Interference With Business Expectancy—Affirmative Defense—Financial Interes...

6A WAPRAC WPI 352.06Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 352.06 (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 352.06 Tortious Interference With Business Expectancy—Affirmative Defense—Financial Interest
(Name of defendant)claims that even if [his] [her] [its] conduct interfered with(name of plaintiff)'s prospective business relationship or future contract, that conduct was justified because(name of defendant)was acting reasonably to protect [his] [her] [its] financial interest from being harmed.
To establish the defense of financial interest,(name of defendant)has the burden of proving each of the following propositions:
(1) That prior to any conduct of(name of defendant)interfering with a business relationship or future contract of(name of plaintiff), (name of defendant)had a financial interest connected to(describe the plaintiff's prospective relationship); and
(2) That(name of defendant)did not use wrongful means to protect that interest from harm.
Use this instruction with WPI 352.02.01 (Tortious Interference with Business Expectancy—Burden of Proof on the Issues—With Affirmative Defenses) in an appropriate case. Do not use this instruction in a tortious interference with contract case, unless it is a contract terminable at will.
This instruction may be modified if the interest sought to be protected is better described as legal rather than financial. See the Comment below.
The instruction is derived from a jury instruction proposed by the ABA. Nelson & Fisher, Am. Bar Ass'n Section of Litigation, Model Jury Instructions: Business Torts Litigation § 2.9.3 (4th ed. 2005). In light of the wording of related sections from the Restatement (Second), the second element requires proof that wrongful means were not used, rather than proof of “reasonable” conduct as suggested by the ABA model instruction. See Restatement (Second) of Torts §§ 769, 771 (1979). See also Calbom v. Knudtzon, 65 Wn.2d 157, 163, 396 P.2d 148 (1964); Quadra Enterprises v. R. A. Hanson Co., 35 Wn.App. 523, 529 n.3, 667 P.2d 1120 (1983).
For an analogous issue, see Restatement (Second) of Torts § 773 (1979). It has been held that even if all other elements of a cause of action for tortious interference with business expectancy are present, “interference is justified as a matter of law if the interferer has engaged in the exercise of an absolute right equal or superior to the right which was invaded.” Plumbers & Steamfitters Union Local 598 v. Wash. Pub. Power Supply Sys., 44 Wn.App. 906, 920, 724 P.2d 1030 (1986) (interferer's right to protect its own property from trespass justified interference with business expectancy). This high standard must be met only when the privilege is asserted to exist as a matter of law, rather than as a question of disputed fact. Dauphin v. Smith, 42 Wn.App. 491, 495 n.3, 713 P.2d 116 (1986).
For a comparable analysis of the privilege of a public official or employee to act within the scope of statutory duties, see Stidham v. Dep't of Licensing, 30 Wn.App. 611, 614–15, 637 P.2d 970 (1981) (privilege to invade plaintiff's interest in furtherance of a social interest of greater public import).
See the Comment to WPI 352.03 (Tortious Interference—Improper Purpose—Improper Means—Definitions) for a discussion of affirmative defenses and their relation to proper or improper conduct.
[Current as of December 2020.]
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