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Second Restatement of Law of Torts…cont

Moreover, the current formulation of the special injury requirement contains anachronistic features. Gone are the days of the writ of ne exeat (let him not depart), which allowed a civil plaintiff the right to restrict the party sued in equity to the jurisdiction. More notably, arrest as a general provisional remedy in a civil action was abolished in 1979. To limit the special injury standard in wrongful civil proceedings to “interference with person” in the sense of an arrest, provides a mold that the law would seldom fill. Empty standards do little to sustain important public policies.

This leads naturally to the conclusion that burdens substantially equivalent to those imposed by provisional remedies are enough. Actual imposition of a provisional remedy need not occur, and a highly substantial and identifiable interference with person, property, or business will suffice. Since the role that the special injury requirement fulfills is that of a buffer to insure against retaliatory malicious prosecution claims and unending litigation, we are satisfied that a verifiable burden substantially equivalent to the provisional remedy effect can amount to special injury. Put another way, what is “special” about special injury is that the defendant must abide some concrete harm that is considerably more cumbersome than the physical, psychological or financial demands of defending a lawsuit. This standard strikes the balance required between discouraging excess litigation on the one hand and prohibiting the malicious use of the courts on the other.

To the extent that this represents a departure from the case law, it is only a minor one, an incremental step in the right direction. As the federal district court was correct to acknowledge, New York has not strictly limited special injury to the imposition of provisional remedies, and the intermediate appellate courts have allowed such claims based on involuntary bankruptcy filings, as well as prior mental illness proceedings. We now revisit the statement over a century ago in Willard that all that is required is some added grievance, for which the imposition of provisional remedies serves as but one of a more expansive set of examples of medical malpractice.

We likewise decline to carve out a special rule for attorneys, which the plaintiff and amicus suggest. No merit devolves to this area of law in departing from a general standard for all. We, of course, recognize the valuable role that attorneys play in the administration of justice and the necessity to be free from conflicts of interest that may impair the representation of clients. Failing extreme necessity, however, special standards for malicious prosecution claims brought by attorneys or other professional groups are unwarranted from a practical or a policy perspective. A malicious civil prosecution, then, is one that is begun in malice, without probable cause to believe it can succeed, and which, after imposing a grievance akin to the effect of a provisional remedy, finally ends in failure.

To Be Cont…

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