Causes of Action: Malicious Prosecution

From Gorman v. Stites & Harbison, NPO, COA, 4/29/2011

As the trial court correctly discussed, there are six elements of the tort
of malicious prosecution or wrongful use of civil proceedings:

(1) the institution or continuation of original judicial proceedings, either civil or criminal, or of administrative or disciplinary proceedings, (2) by, or at the instance, of the plaintiff, (3) the termination of such proceedings in defendant’s favor, (4) malice in the institution of such proceeding, (5) want or lack of probable cause for the proceeding, and (6) the suffering of damage as a result of the proceeding. Raine v. Drasin, 621 S.W.2d 895, 899 (Ky. 1981). We find that the issue of probable cause is dispositive. Stites &
Harbison had probable cause to bring the suit.

The question of probable cause is related not to whether the facts exist to prove a lawsuit, but whether it was reasonable to believe that the client’s claim is tenable. In the context of probable cause, tenable “depends not on the actual state of the case in point of fact, but upon the honest belief of the person instituting it. It may flow from a belief that turns out to be unfounded as long as it is not unreasonable.” Ammerman v. Newman, 384 A.2d 637, 640 (D.C. 1978). Prewitt v. Sexton, 777 S.W.2d 891, 896 (Ky. 1989).
Id. at 897.


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