Summary
holding that a directed verdict on plaintiff's malicious prosecution claim was inappropriate when resolution of the probable-cause issue depended on whether the trier of fact believed plaintiff or defendant
Summary of this case from Evans v. SmithOpinion
Nos. 89-1081 and 89-1082
Submitted June 5, 1990 —
Decided August 22, 1990.
Torts — Malicious prosecution — Necessary elements — Seizure of plaintiff's person or property not required.
O.Jur 3d False Imprisonment etc. §§ 17, 18.
The elements of the tort of malicious criminal prosecution are (1) malice in instituting or continuing the prosecution, (2) lack of probable cause, and (3) termination of the prosecution in favor of the accused. Arrest of the plaintiff or seizure of his property is not a necessary element. ( Rogers v. Barbera, 170 Ohio St. 241, 10 O.O. 2d 248, 164 N.E.2d 162, paragraph one of the syllabus, applied and followed; Kelly v. Whiting, 17 Ohio St.3d 91, 17 OBR 213, 477 N.E.2d 1123, and Crawford v. Euclid Natl.Bank, 19 Ohio St.3d 135, 19 OBR 341, 483 N.E.2d 1168, modified.)
APPEAL from and CERTIFIED by the Court of Appeals for Montgomery County, No. CA 10933.
Plaintiff-appellee, Henry L. Trussell, was employed by defendant-appellant, General Motors Corporation ("GM"), at its bus and truck assembly plant in Moraine, Ohio. Trussell worked as a stockman, driving a lift truck and lifting heavy objects. In 1982, he injured his back in the course of his employment.
Over the next two years, Trussell's back problems worsened. On January 27, 1984, Trussell's physician, Dr. G.G. Floridis, wrote a note to GM advising that Trussell be restricted to lifting weights of twenty-five pounds or less. During the last week of January and the first few days of February 1984, Trussell reported to the plant dispensary on several occasions complaining of back pain. Trussell saw Dr. Floridis again on Friday, February 3. Dr. Floridis wrote another note requesting that Trussell be "off [the] lift truck for 6 weeks."
On Monday, February 6, Trussell delivered the note from Dr. Floridis to the plant dispensary. Trussell told the dispensary staff that his condition had worsened over the weekend. He then spoke to his supervisor, Benny Copeland, who assigned him to check inventories and misuse of parts.
Copeland checked with his supervisors and the medical department to determine if there was work in the plant which was suitable for Trussell, given his medical condition. Copeland concluded that there was no work in the plant which Trussell could perform without further injuring himself. Copeland advised Trussell to put in for sick leave. Trussell spent the rest of the day in various plant offices inquiring about sick leave.
Copeland claims to have told Trussell not to come to work the next day because there would be nothing for him to do. Trussell denies this.
Trussell reported to work the following day. Trussell testified that Copeland told him, "If you're not on sick leave and you're not laid off and you haven't been fired or anything, regardless if I have anything for you to do, you're responsible to show up for work. Otherwise, you're going to have to deal with me." Copeland testified that he went to Trussell "and told him there was no work available for him, `Just like I told you yesterday.' * * *" Trussell spent the shift discussing the issue of sick leave with his supervisor and union representatives. He filed a grievance through his union seeking to be placed on a light-duty job instead of sick leave.
Trussell returned to the plant the following morning. When he discovered that his timecard would not operate the turnstiles at the plant gate, he went to the guard station. The guard told Trussell that he was under orders not to let Trussell in. Trussell said he was going to consult his supervisor, then went through a side door reserved for management employees. Two GM security guards, including defendant-appellant Rufus Harris, tried to block his path.
There was a confrontation between Harris and Trussell. Harris testified that Trussell poked him in the chest and threatened to kill him. Trussell denied poking or threatening Harris, and testified that Harris grabbed him.
Trussell went to his work area, where he was met by security guards and Moraine police officers. Copeland joined the group and told Trussell, "You don't have no right to be here." On advice of his union representative, Trussell left the plant, escorted by the Moraine police.
After Trussell left, Harris went to the police station and signed a complaint for aggravated menacing. Detective Bill Mullins of the Moraine police went to the plant to investigate the incident and met with GM security officers. Based on this investigation, Detective Mullins prepared additional complaints charging Trussell with assault and criminal trespassing.
Later that day, Trussell was served with a summons for the three charges. At a trial in July 1984, he was acquitted on all three counts.
Trussell brought an action against GM, Harris, and several other parties not now before this court, in the United States District Court for the Southern District of Ohio. He alleged violations of federal civil rights laws, as well as a tort of malicious prosecution under Ohio law. The district court directed a verdict against Trussell on the federal claims and dismissed the malicious prosecution claim against GM and Harris without prejudice.
Trussell then brought the instant case in the Court of Common Pleas of Montgomery County. At the close of Trussell's evidence, the trial court directed a verdict in favor of GM and Harris on the ground that Trussell failed to show "a seizure of the person."
The city of Moraine and Detective Mullins were also named as defendants in the trial court and a directed verdict was entered in their favor. The claims against these parties were settled shortly after Trussell appealed to the court of appeals.
On appeal, the Court of Appeals for Montgomery County reversed and remanded, holding that Trussell was not required to prove he had been arrested in order to maintain the action. GM and Harris filed a motion to certify the record as case No. 89-1081, which was subsequently allowed. Thereafter, the court of appeals, finding its decision to be in conflict with the judgment of the Court of Appeals for Cuyahoga County in Woyczynski v. Wolf (1983), 11 Ohio App.3d 226, 11 OBR 350, 464 N.E.2d 612, certified the record of the case to this court for review and final determination. This certified conflict was assigned case No. 89-1082. Case Nos. 89-1081 and 89-1082 have been consolidated.
Victor A. Hodge and Dennis L. Bailey, for appellee.
Cowden, Pfarrer, Crew Becker, Joseph P. Buchanan and Jeffrey A. Swillinger, for appellants.
For the reasons which follow, we affirm the judgment of the court of appeals and remand the cause for a new trial.
I
The primary issue before us is this: must the plaintiff show an arrest or seizure in order to maintain an action for malicious prosecution founded on a prior criminal proceeding? In order to resolve this issue, we must revisit and clarify our prior pronouncements in this area.
Ohio law, like the English common law before it, has long recognized a right to recover in tort for the misuse of civil and criminal actions as a means of causing harm. See Pope v. Pollock (1889), 46 Ohio St. 367, 368-371, 21 N.E. 356, 356-357; Prosser Keeton, The Law of Torts (5 Ed. 1984) 870, Section 119 ("Prosser"). Our jurisprudence has developed two lines of cases, one involving claims of malicious prosecution founded on criminal proceedings, and the other involving claims of malicious prosecution founded on civil proceedings. We shall refer to these two kinds of cases as "malicious criminal prosecution" and "malicious civil prosecution," respectively.
The elements of the tort of malicious criminal prosecution were developed in a line of cases culminating in Rogers v. Barbera (1960), 170 Ohio St. 241, 10 O.O. 2d 248, 164 N.E.2d 162. The first paragraph of the syllabus of that case states:
See, e.g., Woodruff v. Paschen (1922), 105 Ohio St. 396, 137 N.E. 867; Melanowski v. Judy (1921), 102 Ohio St. 153, 131 N.E. 360.
"The essential elements of a malicious [criminal] prosecution are (1) malice in instituting or continuing the prosecution, (2) lack of probable cause, and (3) termination of the prosecution in favor of the [criminal] defendant."
In actions for malicious civil prosecution, our cases established an additional requirement which was set forth in the first paragraph of the syllabus of Cincinnati Daily Tribune Co. v. Bruck (1900), 61 Ohio St. 489, 56 N.E. 198:
"As a general rule no suit will lie for the malicious prosecution of a civil action, where there has been no arrest of the person or seizure of property."
Unfortunately, the distinction between causes resulting from criminal actions and causes resulting from civil actions became blurred in two of our more recent cases. Kelly v. Whiting (1985), 17 Ohio St.3d 91, 17 OBR 213, 477 N.E.2d 1123, involved a claim of malicious prosecution founded on the initiation of contempt proceedings for failure to obey a support order issued by a domestic relations court. We noted that the claim failed because plaintiff made no showing that the contempt proceeding terminated in his favor. Id. at 94, 17 OBR at 216, 477 N.E.2d at 1127. We then went on to state in dictum that plaintiff "fails to state a claim for relief because he was not arrested and his property was not seized." Kelly, supra, at 94, 17 OBR at 216, 477 N.E.2d at 1127. In support of this statement, we cited, inter alia, Woyczynski v. Wolf (1983), 11 Ohio App.3d 226, 11 OBR 350, 464 N.E.2d 612, which stated that seizure was a necessary element of the cause of action for both malicious civil and criminal prosecution.
In Crawford v. Euclid Natl. Bank (1985), 19 Ohio St.3d 135, 19 OBR 341, 483 N.E.2d 1168, we were asked to eliminate the "arrest or seizure" requirement in claims of malicious civil prosecution. In declining to do so, we stated:
"* * * [I]n order to state a cause of action for malicious prosecution in Ohio, four essential elements must be alleged by the plaintiff: (1) malicious institution of prior proceedings against the plaintiff by defendant, * * * (2) lack of probable cause for the filing of the prior lawsuit, * * * (3) termination of the prior proceedings in plaintiff's favor, * * * and (4) seizure of plaintiff's person or property during the course of the prior proceedings * * *." (Citations omitted.) Id. at 139, 19 OBR at 344, 483 N.E.2d at 1171.
At first glance, Kelly and Crawford would seem to establish, as appellants contend, that "arrest or seizure" is an essential element in all malicious prosecution actions. However, neither case involved a malicious criminal prosecution claim. These later cases do not cite, much less purport to overrule, the syllabus of Rogers v. Barbera, supra. Further, they are inconsistent with Border City S. L. Assn. v. Moan (1984), 15 Ohio St.3d 65, 66, 15 OBR 159, 161, 472 N.E.2d 350, 352, another case involving a malicious civil prosecution claim, which omits "arrest or seizure" in its listing of the elements of the cause of action. See Crawford, supra, at 140, 19 OBR at 345, 483 N.E.2d at 1172 (Celebrezze, C.J., dissenting); id. at 143, 19 OBR at 348, 483 N.E.2d at 1175 (Douglas, J., dissenting). The dicta in Kelly and Crawford are not dispositive of the issue before us.
Appellants further contend, in effect, that even if "arrest or seizure" is not a necessary element of an action for malicious criminal prosecution, it should be. They cite to our discussion in Crawford where we said that "* * * the requirement of an arrest of the person or seizure of property in malicious prosecution actions is necessary, as a matter of public policy, to dissuade the multiplicity of counter-suits that could occur in the absence of such a requirement. * * *" Crawford, supra, at 139, 19 OBR at 344, 483 N.E.2d at 1171. Appellants urge that similar public policy concerns are applicable in the instant case.
We do not agree. The "arrest or seizure" requirement has been chastised by scholarly commentators, see, e.g., Prosser, supra, at 889, Section 120; Palmer, Ohio Criminal Law Review (Vol. 3, No. 6, 1985) 325, and has been eliminated in the Second Restatement of Torts as well as in a majority of our sister states. See 3 Restatement of the Law 2d, Torts (1977), Section 653 (malicious criminal prosecution) and Section 674 (malicious civil prosecution). See, also, Reporter's Note to Section 674 (stating that this section "is now a clear and growing majority rule followed by some 30 states. * * *").
We express no opinion on the continued viability of the "arrest or seizure" requirement in actions for malicious civil prosecution, as this question is not presently before us.
We think this is the better rule. The tort of malicious criminal prosecution compensates the plaintiff for the damage to dignity and reputation caused by false accusation of a crime. See Pope, supra, at 369-370, 21 N.E. at 357; Prosser, supra, at 887, Section 119. The damage occurs whether the plaintiff is arrested or, as in the instant case, haled into court on a summons. Unlike the victim of malicious civil prosecution, the victim of false criminal charges does not have the remedies provided by Civ. R. 11.
Accordingly, we take this opportunity to clarify and reaffirm the existing law. We hold that the elements of the tort of malicious criminal prosecution are (1) malice in instituting or continuing the prosecution, (2) lack of probable cause, and (3) termination of the prosecution in favor of the accused. Arrest of the plaintiff or seizure of his property is not a necessary element. To the extent that it implies a contrary rule, we disapprove of Woyczynski v. Wolf, supra.
Applying this rule to the instant case, it was error for the trial court to direct a verdict based on Trussell's failure to show he had been arrested. We affirm the judgment of the court of appeals, which reversed on this issue and remanded the cause for trial.
II
Appellants also contend that Trussell failed to make a showing of lack of probable cause sufficient to survive a motion for directed verdict. The trial court decided the case on the absence of an arrest or seizure, not the absence of evidence relating to probable cause. The court of appeals held that in construing the evidence most favorably for Trussell, reasonable minds need not come to a conclusion adverse to Trussell on the question of probable cause.
As the trial court noted, resolution of the probable cause issue depends on whether the trier of fact believes Trussell or Harris. Where the testimony on a material issue of fact conflicts, a directed verdict is inappropriate. See, e.g., O'Day v. Webb (1972), 29 Ohio St.2d 215, 58 O.O. 2d 424, 280 N.E.2d 896. Accordingly, we affirm the judgment of the court of appeals on this issue.
Conclusion
The judgment of the court of appeals is affirmed in all respects and the cause is remanded to the trial court for further proceedings consistent with this opinion.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT and RESNICK, JJ., concur.