Pl sued for malicious prosecution
Pl Appealed from a summary judgment dismissing her complaint against
defendants Nordstrom, Inc.
On December 26, 1987, Gail Smith, a Nordstrom security officer observed
5 individuals shoplifting.
Two of the suspects were identified as Lisa Banks and her father John
Arrested individuals were Sharon Banks, Lisa's older sister, and
was carrying Lisa's driver's license.
The suspects were taken to the police station, booked, and released.
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
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 confirmed that Lisa and John Banks were not the individuals
arrested on December 26, 1987.
Gave Lisa a handwritten note on Nordstrom stationery, dated January 6,
1988 stating that Lisa was not the same woman who was arrested on
Lisa states that Smith also told her that she would get the charges
Fingerprint machine was not working that day.
Nothing could be done until arraignment.
Plead Not Guilty.
Omnibus Hearing was scheduled.
Day After Arraignment
Nordstroms security manager did not contract Nordstroms security
officer or claims manager.
Sevelette sent notarized affidavit to the prosecutor.
Stating that Lisa and her father were not the shoplifters.
Just prior to omnibus hearing.
Alleging claims of malicious prosecution, outrage, invasion of privacy,
negligent hiring and supervision, and violations of the Consumer
"Personal, mental and emotional anguish, embarrassment and
Sought recovery for legal expenses and triple damages.
Granted Nordstrom's motion for summary judgment dismissing the action.
This appeal followed.
A tort that violates ones freedom from wrongful prosecution.
Malicious Prosecution Elements (Plaintiff Must Establish)
prosecution claimed to have been malicious was instituted or continued
by the defendant;
there was want of probable cause for the institution or continuation of
proceedings were instituted or continued through malice;
proceedings terminated on the merits in favor of the plaintiff, or were
plaintiff suffered injury or damage as a result of the prosecution
Prosecution Instituted or Continued by the Defendant
It did not institute or continue the prosecution it merely called the
police to apprehend the suspects.
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.
Consequently Detective Kampsen's assertion that Nordstrom could not
have prevented Lisa's arraignment is essentially irrelevant.
Continuing Criminal Proceedings
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
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.
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.
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
This is misleading in suggesting that only affirmative conduct will
sustain a cause of action for malicious prosecution.
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.
We also decline to follow comment c because Nordstrom had a duty to
inform the prosecutor once it learned of the mistake.
A trier of fact could find that Nordstrom caused the continuation or
prolongation of the criminal proceedings.
Gail Smith assured Lisa that Nordstrom would have the charge dismissed.
The record does not indicate when this Gail contacted the prosecutor.
Nordstrom did have influence over the matter because prosecution was
dismissed immediately after Nordstrom sent a notarized statement to the
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
The dismissal of criminal charges establishes a prima facie case of
want of probable cause in favor of the plaintiff.
Defense to Malicious Prosecution
Proof of probable cause is a complete defense to a malicious
A full and honest disclosure of all material facts to the prosecutor
establishes probable cause as a matter of law.
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?
The issue is whether the defendant maliciously continued the
Left to the jury
The circumstances surrounding the continuation of the proceeding
against Lisa are disputed.
Whether there was a want of probable cause is for the jury.
Nordstroms fails to address the malice requirement.
Prima Facie case of
want Probably cause
A dismissal or termination of the criminal proceeding may establish a
prima facie case of malice.
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.
But malice is not necessarily to be inferred from such prima
facie showing of want of probable cause.
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
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.
This cramped characterization of "arrest" ignores the reality of a
summons to appear for arraignment.
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.
This was sufficient "interference with the person" to support a
malicious prosecution claim.
CONCURRING in Part, DISSENTING in Part
That material factual issues remain regarding her claim for malicious
There is absolutely no evidence to support an inference that Nordstrom
took any action in furtherance of the prosecution during this period.
Gail wrote hand written letter saying Lisa was not the same woman.
An affidavit was submitted to the prosecutor which resulted in a
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
Active Role Required
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.
Nordstrom did not in any sense actively participate in causing the
continuation of this prosecution.
Nordstrom took affirmative steps to communicate to the authorities that
there had been a misidentification.
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.
The prosecution was not undertaken for "improper or wrongful motives",.
Nothing to suggest that Nordstrom took any action in furtherance of
this prosecution in "reckless disregard of the rights of the plaintiff."