The Court of Appeals in a nonpublished decision addressed malicious prosecution relative to lack of probable cause by the defendant to have brought criminal charges against the plaintiff. See Whitlock v. Haney, COA, NPO, Jan. 20, 2012.
[T]there are six basic elements necessary to the maintenance of an action for malicious prosecution:
(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). Historically, the tort of malicious prosecution is one that has not been favored in the law. Prewitt v. Sexton, 777 S.W.2d 891, 895 (Ky. 1989); Reid v. True, 302 S.W.2d 846, 847–848 (Ky. 1957). Accordingly, one claiming malicious prosecution must strictly comply with the elements of the tort. See Prewitt, 777 S.W.2d at 895; Raine, 621 S.W.2d at 899.
In granting the directed verdict for Haney, the trial court concluded that Whitlock had failed to show that Haney lacked probable cause for bringing the criminal complaint. Where the indictment is based upon other testimony than that of the prosecutor alone, the indictment creates a rebuttable presumption of probable cause. Davidson v. Castner-Knott Dry Goods Co., Inc., 202 S.W.3d 597, 607 (Ky. App. 2006), citing Conder v. Morrison, 275 Ky. 360, 121 S.W.2d 930, 931 (Ky. App. 1938). The trial court analyzed Haney’s grand jury testimony and found nothing which could be characterized as untrue.
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The plaintiff in a malicious prosecution action has the burden of establishing a lack of probable cause. Collins v. Williams, 10 S.W.3d 493, 496 (Ky. App. 1999). Where the facts are undisputed, whether probable cause is generally a question of law for the court to decide. Id. However, the trial court essentially concluded that Haney’s omission of facts would not rebut the grand jury’s finding of probable cause. We disagree.