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Author Topic: is malicious prosecution an intentional tort issue? Can you banlrupt out of it? (NM)  (Read 2277 times)

RCD

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socrateaser

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malicious procecution, although you may have occasionally heard someone on a TV court show allege it, is a tort reserved as an action against a public official, i.e., district attorney or attorney general, wherein a person has been unsuccessfully prosecuted for a crime without probable cause and under circumstances where the prosecuting attorney brings a criminal charge with knowledge of it's falsity or reckless disregard for the truth.

The tort that exists for an unsucessful civil action is wrongful institution of civil proceedings, which is a suit brough against a party with the intent to cause injury to someone rather than to gain compensation for a loss or injury. In order to prevail, a plaintiff must successfully avoid liability in the original action and then bring suit alleging facts showing that the true purpose behind the suit was to injure the defendant rather than recover for the loss or injury.

This tort is intentional. If proven, it survives a bankruptcy discharge.

RCD

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Thank you for the clear explination.  

Are the elements of worngful institutioin of a civil proceeding fundimentally the same as those of malicious prosecution?  Specifically, after having a decision in my favor in a prior case, do i need to prove lack of probable cause, malace and proximate damages?  


RCD

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I would like to provide additinal information that I am reluctant to post in a public forum.  Do you accept e-mail?  If so to what address?

socrateaser

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The exact elements tend to be slightly different in every jurisdiction. Go to your county law library and read the certified jury instructions for the tort(s) that you wish to allege. That is the best way to determine exactly what you must prove in order to prevail in court.

The general principle of any civil action is that you allege facts of an injury for which relief may be granted, which, if proven, would cause a reasonable trier of facts to find the defendant liable.

Damages in a civil action can be compensatory, consequential, and/or punitive.

Compensatory damages are awarded to "compensate" you for the pain and sufferring that you would not have received "but for" the actions of the defendant, and which are within the zone of danger created by the defendant's actions.

Consequential damages are awarded for injuries that flow naturally from the defendant's actions and which are the reasonably foreseeable consequence of such actions.

Punitive damages are awarded for intentional or wanton and reckless actions, to encourage a defendant to rectify a circumstance or to discourage future repetition of similar injury causing behavior(s).

I can't teach a course in Tort law here. If you really want to get it right, you'll have to attend law school.


 

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