Banks v. Nordstrom, Inc.
787 P.2d 953, 57 Wash. App. 251, 1990 Wash. App. LEXIS 102 (1990)
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Rule of Law:
A private person who initiates a criminal proceeding may be liable for malicious prosecution if they fail to take affirmative steps to have the prosecution dismissed after learning that the accused is innocent, as such an omission can constitute a malicious continuation of the proceeding.
Facts:
- On December 26, 1987, Nordstrom security officer Gail Smith observed a shoplifting incident and assisted police in arresting several suspects.
- One suspect, who was actually Lisa Banks's sister Sharon, used Lisa Banks's driver's license as identification, leading to Lisa being misidentified as the perpetrator.
- On January 5, 1988, Nordstrom's civil claims manager, Evelyn Dingman, sent Lisa Banks a letter demanding civil restitution for the stolen items.
- Around the same time, Lisa Banks received a notice from the prosecuting attorney's office charging her with first-degree theft.
- On January 6, 1988, Lisa and her father met with Gail Smith at Nordstrom, where Smith confirmed Lisa was not the person arrested.
- Smith gave Lisa a handwritten note stating she was not the person involved and told her that Nordstrom would get the charges dismissed.
- Despite Nordstrom's knowledge of the error, Lisa was still required to appear for arraignment on January 11, where she pleaded 'not guilty,' was booked, fingerprinted, and released.
- The criminal charges against Lisa were not dismissed until January 22, 1988, immediately after Nordstrom sent a notarized statement to the prosecutor at the urging of Lisa's counsel.
Procedural Posture:
- Lisa Banks sued Nordstrom, Inc., and its employees in a state trial court, alleging claims for malicious prosecution, outrage, and other torts.
- The trial court granted Nordstrom's motion for summary judgment, dismissing Banks's entire complaint.
- Banks, as the appellant, appealed the summary judgment dismissal to the Court of Appeals of Washington. Nordstrom is the appellee.
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Issue:
Does a private party that initiated a criminal proceeding 'continue' the prosecution for the purposes of a malicious prosecution claim by failing to take sufficient steps to inform authorities of the accused's innocence after learning of a mistaken identification?
Opinions:
Majority - Ringold, J.
Yes, a private party can be found to have 'continued' a criminal prosecution by failing to act when there is a duty to correct a known error. The court holds that liability for malicious prosecution can arise not just from actively instigating or pressing a groundless case, but also from the malicious continuation of a prosecution after learning of the defendant's innocence. Rejecting the notion that only affirmative conduct can create liability, the court states that an omission or failure to act when there is a duty to do so can be tortious. In this case, material issues of fact exist as to whether Nordstrom's delay in formally notifying the prosecutor between January 6 and January 22, despite its employee's assurances to Lisa, constituted a malicious continuation of the proceeding in reckless disregard of her rights. The fact that the charges were dropped immediately upon Nordstrom's formal communication suggests Nordstrom retained influence, creating a jury question as to whether it had a duty to act sooner.
Concurring in part, dissenting in part - Coleman, C.J.
No, a private party does not 'continue' a prosecution merely by failing to do more to stop it after discovering an error, especially when it has not taken any active role in furthering the prosecution. The dissent argues that liability for malicious continuation under the Restatement (Second) of Torts § 655 requires the defendant to take an 'active part' in pressing the proceedings after discovering the lack of probable cause. Here, there is no evidence Nordstrom took any action to further the prosecution; to the contrary, its employee gave Banks an exculpatory note and claimed to have called a detective. The dissent contends that remaining passive or not doing more is insufficient to establish liability, and that inferring malice from the dismissal of the charges is improper. Because malicious prosecution actions are disfavored in law, liability should not attach absent clear evidence of active participation and wrongful motive.
Analysis:
This case is significant for expanding the scope of malicious prosecution claims in Washington to include liability for inaction. The majority's decision establishes that a party who initiates a prosecution may have an affirmative duty to help terminate it upon discovering exculpatory evidence. By holding that a 'failure to act' can constitute a 'continuation' of the prosecution, the court makes it more difficult for defendants to obtain summary judgment by claiming they lost control of the case to the prosecutor. This precedent shifts the focus to the reasonableness of the defendant's conduct after discovering the plaintiff's innocence, creating a question of fact for the jury regarding the existence of a duty and whether the defendant's delay showed reckless disregard for the plaintiff's rights.
