C. Elements Defined
1. Institution or Continuation of Original Judicial Proceedings
a. Proximate cause
In order to sustain an action for malicious prosecution, plaintiff must have been charged with some criminal or civil wrong and exonerated.4 Liability may be imputed to a defendant who instigated and set the legal proceedings in motion.5 Therefore, if an unlawful arrest of respondent was the proximate result of the defendant's conduct, the defendant may be held liable for malicious prosecution.
Generally, when a police officer has discretion to make a decision about whether to prosecute, that discretion renders the decision his or her own and the person who provided the information is not liable.6
2. Lack of Probable Cause
a. Probable cause defined
The Supreme Court of South Carolina has cautioned against allowing suits for malicious prosecution to inhibit free access to the courts.7 Therefore, in a malicious prosecution action, the courts place the burden upon the plaintiff to show probable cause,8 and when a court determines if probable cause exists, it must consider the facts from the point of view of the party prosecuting.9 Probable cause is defined as "the extent of such facts and circumstances as would excite the belief in a reasonable mind acting on the facts within the knowledge of the prosecutor that the person charged was guilty of a crime for which he has been charged."10 Furthermore, "only the facts and circumstances which were known or should have been known to the prosecuting witness at the time of the institution of prosecution should be considered."11 An uncharged offense may establish probable cause.12 A true bill of indictment is considered prima facie evidence of probable cause.13
b. Guilt or innocence irrelevant
It is important to note that the plaintiff's actual guilt or innocence is generally irrelevant to a finding of probable cause.14 Instead, want of probable cause is defined as "the absence of reasonable cause to believe the plaintiff is guilty."15 A conviction, even though subsequently reversed or set aside, conclusively establishes probable cause absent a showing the conviction was procured through fraud, perjury or other undue means.16
"Where a plaintiff bases the claim on an opponent's institution of civil causes of action, probable cause exists if the facts and circumstances would lead a person of ordinary intelligence to believe that the plaintiff committed one or more of the acts alleged in the opponent's complaint.17 Additionally, lack probable cause has to be shown for each cause of action asserted to prevail on a claim of malicious prosecution and if probable cause exists for any cause of action a malicious prosecution claim is defeated.18
Determination of probable cause is ordinarily a jury matter,19 unless there is a complete absence of any ill will toward the defendant; then it becomes a question of law for the court.20
3. Malice
Malice is defined as "the intentional doing of a wrongful act without just cause or excuse" and "may be inferred from a want of probable cause."21 Although malice may be inferred from a want of probable cause, a want of probable cause cannot be inferred from any degree of malice.22 As malice may be inferred from a want of probable cause, the first question for determination of malice is whether there was evidence from which the jury could have found a want of probable cause.23 Lack of probable cause alone may give rise to an inference of malice sufficient to carry the question to the jury.24 The plaintiff need not show actual malice to successfully maintain an action for malicious prosecution.25
4. Termination of Original Proceeding, Beyond Revival
The termination of the previous action must have been in plaintiff's favor.26 It is enough to support an action for malicious prosecution that the proceeding was terminated (such as with an acquittal) so that it cannot be revived and the prosecutor, if he proceeds further, will be put to a new action.27 A conviction is a bar to a malicious prosecution action, and even if the case is overturned on appeal, malicious prosecution will not lie because probable cause has been established.28 A grand jury's true bill of indictment is also prima facie evidence of probable cause in an action for malicious prosecution.29 Dismissal of criminal charges by entry into a pre-trial intervention program (PTI) is not a termination in the plaintiff's favor.30
When a malicious prosecution claim is based on a civil proceeding, favorable termination of proceedings means a termination reflective of the merits and, termination, therefore, has to be consistent with a finding for the defendant on substantive grounds, not based solely on technical or procedural considerations.31
5. Damages — Actual and Special
In a malicious prosecution case, the plaintiff may recover whatever actual damages he has suffered as a natural result of the wrong, including, but not limited to: (a) mental pain and suffering; (b) fright; (c) nervousness, (d) indignity, (e) humiliation, (f)) embarrassment; and (g) insults,32 and (h) injury to reputation and person.33 Special damages may be awarded in a malicious prosecution case if supported by specific pleading and proof. These damages include: (1) damages for discomfort or injury to plaintiff's health; (2) loss of time (3) deprivation of the society of his family; (4) reasonable attorney fees, and occasionally the attorney fees in the prior criminal action; (5) specific financial loss, as in present or prospective employment, limited by the doctrine of proximate cause.34
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Notes:
[4] Elletson v. Dixie Home Stores, 231 S.C. 565, 99 S.E.2d 384, 386 (1957). See also Eaves v. Broad River Elec. Coop., 277 S.C. 475, 477, 289 S.E.2d 414, 415 (1982).
[5] See Elletson v. Dixie Homes Stores, 231 S.C. at 575. In Elletson, a proprietor confined a...
