PJC General Negligence 2022

PJC 6.4

I NTENTIONAL P ERSONAL T ORTS

PJC 6.4

Malicious Prosecution

QUESTION ______ Did Don Davis maliciously prosecute Paul Payne ?

“Malicious prosecution” occurs when one person initiates or procures, with malice, and without probable cause at the time the prosecution is commenced, the prosecution of an innocent person. “Malice” means ill will, bad or evil motive, or such gross indifference to the rights of others as to amount to a willful or wanton act. “Probable cause” means the existence of such facts and circumstances as would excite belief in a person of reasonable mind, acting on the facts or cir cumstances within his knowledge at the time the prosecution was commenced, that the other person was guilty of a criminal offense. The probable cause determination asks whether a reasonable person would believe that a crime had been committed given the facts as the complainant honestly and reasonably believed them to be before the criminal proceedings were instituted. Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. PJC 6.4 is a broad-form question. See Tex. R. Civ. P. 277. It should be appropriate in most cases involving claims for malicious prosecution arising out of a criminal prosecution. See PJC 33.2 regarding broad-form issues and the Casteel doc trine. Source of question and instructions. The seven elements of malicious prosecu tion are (1) commencement of a criminal prosecution against the plaintiff, (2) initiated or procured by the defendant, (3) terminated in favor of the plaintiff, (4) who was innocent, (5) without probable cause, (6) with malice, (7) resulting in damage to the plaintiff. Richey v. Brookshire Grocery Co. , 952 S.W.2d 515, 517 (Tex. 1997). Note that the element relating to the prosecution’s being terminated in favor of the plaintiff is not included in the above instructions. In the Committee’s view, this element should be determined by the trial court as a matter of law before the submission of the case to the jury. Cf. Davis v. City of San Antonio , 752 S.W.2d 518, 523 (Tex. 1988). Under the supreme court’s formulation in Richey , the plaintiff’s innocence is a factual element that he bears the burden of establishing.

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