Banks v. Nordstrom, Inc., 787 P.2d 953

Washington Court of Appeals

1990

Chapter

20

Title

Misuse Of Legal Process

Page

806

Topic

Malicious Prosecution

Quick Notes

Nordstrom employee did not immediately act on information that the wrong person had been summoned to court. 

Book Name

Torts Cases, Problems, And Exercises.  Weaver, Third Edition.  ISBN:  978-1-4224-7220-0.

Issue

o         Whether there was want of probably cause for the jury to determine?  Yes.

Procedure

Trial

o         Granted Summary Judgment dismissing Pl - action.

Appellant

o         The judgment of dismissal is reversed and the case remanded for further proceedings consistent with this opinion.

Facts

Reasoning

Rules

Pl Banks

Df Nordstrom, Inc

Initial Procedure

o         Pl sued for malicious prosecution

o         Pl Appealed from a summary judgment dismissing her complaint against defendants Nordstrom, Inc.

What happened?

o         On December 26, 1987, Gail Smith, a Nordstrom security officer observed 5 individuals shoplifting.

o         Two of the suspects were identified as Lisa Banks and her father John Banks.

o         Arrested individuals were Sharon Banks, Lisa's older sister, and Sharon's boyfriend.

o         Sharon was carrying Lisa's driver's license.

o         The suspects were taken to the police station, booked, and released.

Restitution Letter

o         On Jan 5, 1988, Evelyn Sevelette, Nordstrom's civil claims manager, sent a letter to Lisa demanding civil restitution totaling $889.70.

First Degree Theft Notice

o         Lisa also received a notice from the prosecuting attorney's office that she had been charged with first degree theft and was scheduled to be arraigned on January 11, 1988.

Immediate Contract Gail Smith

o         Smith confirmed that Lisa and John Banks were not the individuals arrested on December 26, 1987.

o         Gave Lisa a handwritten note on Nordstrom stationery, dated January 6, 1988 stating that Lisa was not the same woman who was arrested on December 26.

o         Lisa states that Smith also told her that she would get the charges dismissed.

Detective Kampsen

o         Fingerprint machine was not working that day.

o         Nothing could be done until arraignment.

Arraignment

o         Plead Not Guilty.

o         Omnibus Hearing was scheduled.

Day After Arraignment

o         Nordstroms security manager did not contract Nordstroms security officer or claims manager.

Notarized Statement

o         Sevelette sent notarized affidavit to the prosecutor.

o         Stating that Lisa and her father were not the shoplifters.

Charges Dismissed

o         Just prior to omnibus hearing.

Action Against Nordstrom

o         Alleging claims of malicious prosecution, outrage, invasion of privacy, negligent hiring and supervision, and violations of the Consumer Protection Act.

Sought Damages

o         "Personal, mental and emotional anguish, embarrassment and humiliation."

o         Sought recovery for legal expenses and triple damages.

Trial Court

o         Granted Nordstrom's motion for summary judgment dismissing the action.

o         This appeal followed.

Malicious Prosecution

o         A tort that violates ones freedom from wrongful prosecution.

Malicious Prosecution Elements (Plaintiff Must Establish)

(1)     That the prosecution claimed to have been malicious was instituted or continued by the defendant;

(2)     That there was want of probable cause for the institution or continuation of the prosecution;

(3)     That the proceedings were instituted or continued through malice;

(4)     That the proceedings terminated on the merits in favor of the plaintiff, or were abandoned; and

(5)     That the plaintiff suffered injury or damage as a result of the prosecution

Prosecution Instituted or Continued by the Defendant

Nordstroms Arg

o         It did not institute or continue the prosecution it merely called the police to apprehend the suspects.

o         The basis for Lisa's claim is not the institution of the prosecution, but rather Nordstrom's alleged malicious continuation, which was dismissed after Nordstroms became aware of the misidentification.

o         Consequently Detective Kampsen's assertion that Nordstrom could not have prevented Lisa's arraignment is essentially irrelevant.

Continuing Criminal Proceedings

o         A private person who takes an active part in continuing or procuring the continuation of criminal proceedings initiated by himself or by another is subject to the same liability for malicious prosecution as if he had then initiated the proceedings.

Commentary

o         Continuing to prosecute such proceedings maliciously after learning of their groundless nature will result in liability, although they had been begun in good faith and with probable cause.

o         Clearly, it is as much a wrong against the victim and as socially or morally unjustifiable to take an active part in a prosecution after knowledge that there is no factual foundation for it, as to instigate such proceedings in the first place.

Walsh v. Eberlein (Liability)

o         Where the instigator loses control of the case once prosecution has commenced, his or her continued participation in the prosecution will not support liability for malicious prosecution.

Comment c to 655 of the Restatement (Second) of Torts

o         This is misleading in suggesting that only affirmative conduct will sustain a cause of action for malicious prosecution.

Tortious Conduct

o         Conduct whether of act or omission is of such a character as to subject the actor to liability under the principles of the laws of Torts.

Courts Response

o         We also decline to follow comment c because Nordstrom had a duty to inform the prosecutor once it learned of the mistake.

o         A trier of fact could find that Nordstrom caused the continuation or prolongation of the criminal proceedings.

o        Gail Smith assured Lisa that Nordstrom would have the charge dismissed.

o        The record does not indicate when this Gail contacted the prosecutor.

o        Nordstrom did have influence over the matter because prosecution was dismissed immediately after Nordstrom sent a notarized statement to the prosecutor.

Probable Case

Nordstrom Arg

o         There was probable cause to institute the criminal proceeding against Lisa, based upon the identification provided by the shoplifting suspect.

Prima Facie Case want of probable cause

o         The dismissal of criminal charges establishes a prima facie case of want of probable cause in favor of the plaintiff.

Defense to Malicious Prosecution

o         Proof of probable cause is a complete defense to a malicious prosecution action.

o         A full and honest disclosure of all material facts to the prosecutor establishes probable cause as a matter of law.

o         Even if true, however, Nordstrom's assertion that there was probable cause to initiate the criminal proceeding is irrelevant;

Issue Did Defendant maliciously continue the prosecution?

o         The issue is whether the defendant maliciously continued the prosecution.

Left to the jury

o         The circumstances surrounding the continuation of the proceeding against Lisa are disputed.

o         Whether there was a want of probable cause is for the jury.

Malice

o         Nordstroms fails to address the malice requirement.

Prima Facie case of want Probably cause

o         A dismissal or termination of the criminal proceeding may establish a prima facie case of malice.

o         A prima facie case of want of probable cause (from which malice may be  inferred) is made by proof that the criminal proceedings were dismissed or terminated in plaintiff's favor.

o         But malice is not necessarily to be inferred from such prima facie showing of want of probable cause.

Satisfying Malice Prosecution

o         Malicious prosecution may be satisfied by proving that the prosecution complained of was undertaken from improper or wrongful motives or in reckless disregard of the rights of the plaintiff.

Damages

Nordstrom Arg

o         Unless there is interference with the person or property by a provisional remedy such as arrest, injunction or attachment as an incident to the maintenance of an action, a suit for malicious prosecution will not lie despite the fact that the action was instituted maliciously and without probable cause.

Courts Response

o         This cramped characterization of "arrest" ignores the reality of a summons to appear for arraignment.

o         Lisa not only appeared at arraignment, she entered a plea and was then fingerprinted, released on bail, and required to appear on January 22, 1988, for the omnibus hearing.

o         This was sufficient "interference with the person" to support a malicious prosecution claim.

CONCURRING in Part, DISSENTING in Part

o         That material factual issues remain regarding her claim for malicious prosecution.

o         There is absolutely no evidence to support an inference that Nordstrom took any action in furtherance of the prosecution during this period.

o        Gail wrote hand written letter saying Lisa was not the same woman.

o        An affidavit was submitted to the prosecutor which resulted in a dismissal.

o         The majority suggests that because Nordstrom arguably could have done more between January 6 and January 22, 1988, to obtain dismissal of the proceedings, it can be inferred that Nordstrom somehow continued the prosecution.

Active Role Required Argument

o         The rule stated in this Section applies when the defendant has himself initiated criminal proceedings against another or procured their institution, upon probable cause and for a proper purpose, and thereafter takes an active part in pressing the proceedings after he has discovered that there is no probable cause for them.

Main Argument

o         Nordstrom did not in any sense actively participate in causing the continuation of this prosecution.

o         Nordstrom took affirmative steps to communicate to the authorities that there had been a misidentification.

o         There is absolutely no evidence support any inference of malice.

Impropriety of Motive is established by

Defendant instituted the criminal proceedings against the plaintiff:

(1) Without believing him to be guilty, or

(2) Primarily because of hostility or ill will toward him, or

(3) For the purpose of obtaining a private advantage as against him.

In summary

o         The prosecution was not undertaken for "improper or wrongful motives",.

o         Nothing to suggest that Nordstrom took any action in furtherance of this prosecution in "reckless disregard of the rights of the plaintiff."

Class Notes

Malicious Prosecution Elements (Plaintiff Must Establish)

1.   That the prosecution claimed to have been malicious was instituted or continued by the defendant;

2.   That there was want of probable cause for the institution or continuation of the prosecution;

3.   That the proceedings were instituted or continued through malice;

4.   That the proceedings terminated on the merits in favor of the plaintiff, or were abandoned; and

5.   That the plaintiff suffered injury or damage as a result of the prosecution.

Omnibus - For all; containing two or more independent matters

Continuing Criminal Proceedings

o         A private person who takes an active part in continuing or procuring the continuation of criminal proceedings initiated by himself or by another is subject to the same liability for malicious prosecution as if he had then initiated the proceedings.