Malicious prosecution: used to be limited to criminal proceedings but in most jurisdictions include civil proceedings and they are not limiting this tort only to criminal prosecution.

1) Institution of criminal proceedings against the plaintiff.

2) Termination of proceedings favorable to plaintiff.

3) Absence of probable cause

4) Def acted with improper purpose or malice

5) Damages

Institution of criminal proceedings against the pl. can be shown that there was an warrant for arrest, indictment, or complaint filed

Termination of case favorable to plaintiff-

What must it show?

Termination favorable to pl they were acquitted, the case was dismissed or the charges were dropped- the termination must show a demonstration of innocence

pl has to show that the def initiated the prior proceeding without probably cause either by showing that there were insufficient facts for a reasonable person to think the pl was guilty or that the def did not actually think the def was guilty.

The pl also has to show that the def acted with improper purpose and the malice or improper purpose element is satisfied when it shows that the def’s primary purpose for instituting the proceeding was for another purposes than for the purpose of bringing the person to justice like harassment

.

   Damages must be proved.

Pl can recover damages for all damages proximate to def’s harm like embarrassment, punitive damages, damages for legal costs in defending self.

Is Malicious prosecution the same thing as a false arrest case?

Why or why not?

This is separate from a false arrest case b/c a false arrest is illegal in a malicious prosecution situation, the arrest itself is carried off in a lawful manner but it is done so pursuant to a maliciously based prosecution.

The purpose of this tort is to punish people for abuse of process

1) Existence of a valid contractual relationship between the pl and a 3rd party or a valid business expetancy

2) Def's knowledge of the relationship/expectancy.

3) Intentional interferences by defendant that induces a breach or termination of relationship

4) Damages

The intentional inteference by defendant separates this from fair competition b/c def interfers to the point where he induces a breach or termination of relationship

an activity that arises from the unreasonable, unwarranted or unlawful use by a person of his own property, a working obstruction, or injury to right of another or to the public, and producing such a material annoyance, inconvenience, and discomfort that the law will presume resulting damage.

This is an activity that so annoys and disrupts a person’s possession and enjoyment of their property that it renders its enjoyment and use impossible.

A nuisance begins not when someone notices but when it actually beings and if someone notices and knows of the nuisance and intentional comes to the nuisance, then they cannot complain

If you come to the nuisance, can you complain about it?

Example

No, a nuisance must come to you.

So if you move next to a chicken farm and they are stinky and area already there, you cannot sue for it because you have come voluntarily to the nuisance.

But if you move somewhere and are living there and then your next door neighbor puts up a chicken farm, that would be usable because the nuisance comes to you

Nuisance is not a separate tort that stands on its own. It has to be a piggyback claim. It hast to sit on the back of a major other claim.

1) public

2) private

3) mixed

So you might file a claim of negligence that your neighbor has a duty, they breached that duty, and the duty was the proximate cause of the harm and there are damages to you. And on top of that they are a nuisance.

Public nuisance affects an infinite number of people or all people in a particular locality.

an invasion or interference with a personal enjoyment or use of their private property (it’s a private nuisance- it’s just me and there person with the chicken coops or a few people around me and a neighbor and the guy with the chicken coop).

Mixed the nuisance that is either public or private

How great must the interference be for it to be considered a nuisance?

What will courts weigh in determining if something is a nuisance?

The interference must be substantial and must not be a mere annoyance and the courts will weigh whether the injury to the person outweighs the utility of defendant’s conduct.

What are defenses to nuiance?

Examples?

consent,

legislative authority that is in concert with a zoning authority or other legislative license.

So if there is a noise ordinance that there is no noise after 10 o’clock at night and so if person is not making noise in accordance then you have a claim, but if they are acting in accordance with the license, you do not have a claim.

fireworks- noise is a nuisance toe everyone and the private nuisances to people who can’t be on their decks because of the sparks