Malicious prosecution claims are among the oldest of tort claims under Kentucky law; the law reports discuss them nearly all the way back to when Kentucky became a state. See Frowman v. Smith, 16 Ky. 7 (Ky. 1800): "A person discharged from a prosecution for felony, without a trial on the merits, cannot, in an action for malicious prosecution, require proof of probable cause, until he shows express malice."
The two centuries plus since had befogged the tort's elements, and the Kentucky Supreme Court has now refined them in Martin v. O'Daniel, advising as follows:
(1) the defendant initiated, continued, or procured a criminal or civil judicial proceeding, or an administrative disciplinary proceeding against the plaintiff;
(2) the defendant acted without probable cause;
(3) the defendant acted with malice, which, in the criminal context, means seeking to achieve a purpose other than bringing an offender to justice; and in the civil context, means seeking to achieve a purpose other than the proper adjudication of the claim upon which the underlying proceeding was based;
(4) the proceeding, except in ex parte civil actions, terminated in favor of the person against whom it was brought; and,
(5) the plaintiff suffered damages as a result of the proceeding.
The Court added further that "procuring" a criminal or civil judicial proceeding means the same as "being the proximate and efficient cause of putting the law in motion against another person."
The Court's decision was 5-2; Justice Daniel Venters authored the majority opinion joined by Chief Justice John Minton, Justices Mary Noble, Elisabeth Hughes and Samuel Wright; Justice Bill Cunningham "forcefully" dissented and was joined by Justice Michelle Keller.
Robert L. Abell
www.RobertAbellLaw.com
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