In order to sustain a claim alleging outrage, or the intentional infliction of emotional distress, a plaintiff must first prove that the defendant acted intentionally or recklessly. Buckley v. Trenton Saving Fund Soc'y, 111 N.J. 355, 366, 544 A.2d 857 (1988). A defendant acts recklessly when he or she acts in deliberate disregard of a high degree of probability that emotional distress will follow. Ibid. Second, the defendant's conduct must be extreme or outrageous, meaning it must "go beyond all possible bounds of decency[.]" Ibid. Third, the defendant's actions must have been the proximate cause of the plaintiff's emotional distress. Ibid. Fourth, the emotional distress suffered must be "so severe that no reasonable man could be expected to endure it." Ibid. Physical injury need not be proven; it is sufficient if the plaintiff suffers severe emotional distress. Id. at 367, 544 A.2d 857.
A claim of direct, negligent infliction of emotional distress requires a plaintiff to show that the defendant had a duty, the defendant owed the duty toward the plaintiff, and that the defendant breached that duty, proximately causing the plaintiff's injury of genuine and substantial emotional distress. Decker v. Princeton Packet, Inc., 116 N.J. 418, 429-30, 561 A.2d 1122 (1989); Lacy v. Cooper Hosp./ University Med. Ctr., 745 F.Supp. 1029, 1035 (D.N.J.1990). Whether the defendant has a duty of care to the plaintiff depends on whether it was foreseeable that the plaintiff would be seriously, mentally distressed. Decker, supra, 116 N.J. at 429, 561 A.2d 1122 (1989).
Lascurain v. City of Newark, 349 N.J. Super. 251, 277-278 (App.Div. 2002)
Malicious use of process is one of a group of closely related torts that, although ancient in origins, are treated with great caution because of their capacity to chill resort to our courts by persons who believe that they have a criminal complaint or civil claim against another. See Potts v. Imlay, 4 N.J.L. 382, 386 (Sup.Ct.1816). Malicious prosecution provides a remedy for harm caused by the institution or continuation of a criminal action that is baseless. See Earl v. Winne, 14 N.J. 119, 101 A.2d 535 (1953). Malicious use of process n9 is essentially the analog used when the [*90] offending action in question is civil rather than criminal. See Penwag Prop. Co. v. Landau, 76 N.J. 595, 597, 388 A.2d 1265 (1978); Ash v. Cohn, 119 N.J.L. 54, 57-58, 194 A. 174 (E. & A.1937). Although these causes of action have much in common, there are significant differences between them.
n9 Although there is a [***47] third, related cause of action, referred to as malicious abuse of process, see Tedards v. Auty, 232 N.J. Super. 541, 549-50, 557 A.2d 1030 (App.Div.1989), it is not germane to our analysis. The third party complaint included a count seeking relief on this basis, but the decision of the motion judge granting summary judgment on it has not been challenged on appeal.
HN4Malicious prosecution requires the plaintiff to prove four elements: (1) a criminal action was instituted by this defendant against this plaintiff; (2) the action was motivated by malice; (3) there was an absence of probable cause to prosecute; and (4) the action was terminated favorably to the plaintiff. Lind v. Schmid, 67 N.J. 255, 262, 337 A.2d 365 (1975). Although each factor is distinct, "evidence of one may be relevant with respect to another." Ibid. Nevertheless, each element must be proven, and the absence of any one of these elements is fatal to the successful prosecution of the claim. Klesh v. Coddington, 295 N.J. Super. 51, 58, 684 A.2d 530 (Law Div.), aff'd, 295 N.J. Super. 1, 684 A.2d 504 (App.Div.1996), certif. denied, 147 N.J. 580, 688 A.2d 1055 (1997); see Penwag Prop. Co., supra, 76 N.J. at 597-98, 388 A.2d 1265.
LoBiondo v. Schwartz, 199 N.J. 62, 89-90 (N.J. 2009)
Malicious use of process requires the plaintiff to prove the civil counterpart [***48] to each of those elements, but adds a fifth requirement, namely, that the plaintiff has suffered a special grievance caused by the institution of the underlying civil claim. Mayflower Indus. v. Thor Corp., 15 N.J. Super. 139, 152, 83 A.2d 246 (Ch.Div.1951), aff'd, 9 N.J. 605, 89 A.2d 242 (1952). The added special grievance requirement reflects the significantly different implications that flow from being sued in a civil matter as compared to being prosecuted on a criminal charge. See Vickey v. Nessler, 230 N.J. Super. 141, 148-49, 553 A.2d 34 (App.Div.), certif. denied, 117 N.J. 74, 563 A.2d 836 (1989). That is to say, the special grievance is designed to take the place of the injurious effects, including arrest, restraint, or the attendant humiliation of being held on bail, finger-printed, and photographed, that ordinarily flow from a wrongfully instituted criminal charge. Id. at 147, 553 A.2d 34. Because in contrast, the minimal impact of the commencement of civil litigation is insufficient on its own to [*91] demonstrate an injury, the civil remedy of malicious use of process demands the additional showing of a special grievance. Ibid.
LoBiondo v. Schwartz, 199 N.J. 62, 90-91 (N.J. 2009)
Generally, proceedings in municipal courts for violations of ordinances such as a zoning ordinance are governed by criminal procedural rules. City of Newark v. Pulverman, 12 N.J. 105, 114, 95 A.2d 889 (1953). Quasi-criminal municipal complaints, however, [*31] are treated as civil in the malicious prosecution context. See Vickey v. Nessler, 230 N.J. Super. 141, 149-50, 553 A.2d 34 (App. Div.), certif. denied, 117 N.J. 74, 563 A.2d 836 (1989). For example, a malicious prosecution claim based on the prosecution of a traffic offense "must adhere to the civil standard," which requires a plaintiff to show a special grievance. Id. at 150. There, we observed that even though a traffic summons may lead to an arrest and prison sentence if the defendant was found guilty, that did "not transform the traffic offense into a criminal case." Id. at 149. We held that "for purposes of a malicious prosecution suit following termination of prosecution of a traffic complaint, the litmus test is what happened to the defendant in the prior prosecution of the traffic offense and not what could have happened." Id. at 149-50.
In Vickey, the plaintiff was neither arrested nor deprived of a property right. Id. at 150. Thus, we observed that this was different from a typical criminal case, where "a defendant is usually arrested and held to bail, fingerprinted, photographed and suffers all the humiliation attendant to an arrest." Id. at 147; see also Wozniak v. Pennella, 373 N.J. Super. 445, 460, 862 A.2d 539 (App. Div. 2004) [*32] (while actual arrest not required, "suffering through the humiliation of being fingerprinted and photographed for a mug shot like a common criminal is a sufficient grievance"; essential inquiry is "whether proceeding could have adversely affected legally protected interests"), certif. denied, 183 N.J. 212, 871 A.2d 90 (2005); Klesh v. Coddington, 295 N.J. Super. 1, 3-4, 684 A.2d 504 (App. Div. 1996), (quasi-criminal disorderly persons offenses require a showing of a special grievance; "the determinant of the special-grievance requirement is the 'reality' of what happened in the underlying action rather than the 'potentiality'"), certif. denied, 147 N.J. 580, 688 A.2d 1055 (1997).
In Giri v. Rutgers Cas. Ins. Co., the Court found that the plaintiff, a doctor, had suffered a special grievance because, while facing a malicious lawsuit, he voluntarily shut down his business activities as a precautionary measure. Giri, 273 N.J. Super. 340, 641 A.2d 1112 (App. Div. 1994).
Component Hardware Group v. Trine Rolled Moulding Corp., 2007 U.S. Dist. LEXIS 54900 (D.N.J. July 27, 2007)
Examples of how an interference with property might constitute a special grievance include: where an injunction prevents a party from "conducting its business in a particular area and from using, enjoying and dealing with its property"; "the appointment of a receiver, obtaining a writ of replevin, [or] filing a lis pendens"; and "[w]here the malicious lawsuit actually puts the targeted defendant out of business for a period of time." Giri, supra, 273 N.J. Super. at 349 supra, 273 N.J. Super. at 349 (internal quotation omitted).
South Salem St. Assocs., LLC v. Planning Bd., 2008 N.J. Super. Unpub. LEXIS 1792, 30-32 (App.Div. Oct. 21, 2008) Other civil actions which have led to interference with personal liberty or property sufficient to establish "special grievances" for purposes of malicious prosecution actions include: (1) the institution of disbarment proceedings, Toft v. Ketchum, 18 N.J. 280, 113 A.2d 671 (N.J. 1955); (2) the filing of license revocation proceedings before the Director of the Milk Industry, Rainier's Dairies v. Raritan Valley Farms, Inc., 19 N.J. 552, 117 A.2d 889 (N.J. 1955); [**11] and (3) the granting of an injunction or restraining order or the filing of a lis pendens, Mayflower Indus. v. Thor Corp., 15 N.J. Super. 139, 83 A.2d 246 (N.J. Super. Ct. Ch. Div. 1951), aff'd, 89 A.2d 242 (N.J. 1952). These deprivations all have one thing in common--they result directly from process issued in the proceeding that is said to have been malicious. Thus, the district court decided HN5involuntary bankruptcy is a special grievance because the loss of control over the bankrupt's property that it causes is the direct result of the allegedly malicious civil proceeding that the tortfeasor initiated when he filed an involuntary petition in bankruptcy court. The loss of control a voluntary bankrupt suffers, however, when it files its own petition is not a special grievance because it is only an indirect result of the action that forced the debtor to seek the protection of the bankruptcy court.
Venuto v. Carella, Byrne, Bain, Gilfillan, Cecchi & Stewart, P.C., 11 F.3d 385, 389 (3d Cir. N.J. 1993)
The final element of the cause of action, special grievance, is somewhat problematical. Special grievance is an elusive concept. The best definition is offered by Penwag, supra, 76 N.J. at 598, 388 A.2d 1265. The Court there instructed that while the cost of defending the original action is recoverable as damages, it is not by itself sufficient to constitute a special grievance. Rather a special grievance "consists of interference with one's liberty or property." Ibid. [Special grievance consists of interference with one's liberty or property. Mayflower Industries v. Thor Corp., 15 N.J. Super. at 151-152. Counsel fees and costs in defending the action maliciously brought may be an element of damage in a successful malicious prosecution, but do not in themselves constitute a special grievance necessary to make out the cause of action. Id. at 175-176.
Penwag Property Co. v. Landau, 76 N.J. 595, 598 (N.J. 1978)] In the context of litigation of this sort, we do not read "interference with one's liberty" as embracing only physical freedom of movement and hence as limited to restraint on that freedom. Rather, we interpret "liberty" as including the entire bundle of freedoms afforded by the Constitution--including freedom of speech and freedom to petition. And we are convinced that the challenge to those freedoms attendant upon the filing of what may be conveniently referred to as a SLAPP suit and the constraint the suit imposes upon the exercise of those freedoms, both intended and thereby achieved, constitute a sufficient interference with one's liberty to satisfy the special grievance element. We point out that it is not only the defendant in a SLAPP suit who suffers. The common weal is obviously impaired as well since the consequence of a SLAPP suit is not only to silence the defendant but to deter others who might speak out as well. Suppression of public debate on public issues and the placing of a price--often a high one--on [***57] the right to petition for redress is, in our view, special grievance enough.
Lobiondo v. Schwartz, 323 N.J. Super. 391, 423-424 (App.Div. 1999)
The third traditional element of the cause of action that is in issue is the [**1026] requirement that there be proof of a "special grievance." We have never regarded [***57] the mere cost of defending against litigation to suffice, but have equated this essential proof requirement with the "interference with one's liberty or property." Penwag Prop. Co., supra, 76 N.J. at 598, 388 A.2d 1265. In its analysis in LoBiondo I, the court described the usual barrier created by this element as "somewhat problematical." LoBiondo I, supra, 323 N.J. Super. at 423, 733 A.2d 516 I, supra, 323 N.J. Super. at 423, 733 A.2d 516. In addressing it in the context of a SLAPP suit, the court concluded that the party [*96] who is effectively silenced through the SLAPP action has been deprived of "liberty" because that concept embraces not a single right, but a "bundle of freedoms" of constitutional magnitude. Id. at 424, 733 A.2d 516 at 424, 733 A.2d 516. Those rights include not only the first amendment right to free speech, but the related right to petition the government. Ibid. Seen in the SLAPP suit context, the panel found room to conclude that being deprived of this bundle of rights could suffice to meet the special grievance requirement needed to proceed on the malicious use of process claim. Ibid. The court went further, however, commenting that if the affected person could demonstrate that the primary purpose of the SLAPP suit was to impair the exercise of that bundle of rights, [***58] the filing of the action would be "per se malicious." Id. at 423, 733 A.2d 516 at 423, 733 A.2d 516.
LoBiondo v. Schwartz, 199 N.J. 62, 95-96 (N.J. 2009)
That leaves the final element of the cause of action, special grievance, which is "somewhat problematical." LoBiondo, supra, 323 N.J. Super. at 423, 733 A.2d 516. "Special grievance is [*205] an elusive concept." Ibid. It has been defined as consisting of "interference with one's liberty or property." Penwag Prop. Co., Inc. v. Landau, 76 N.J. 595, 598, 388 A.2d 1265 (1978). It is injury different from, and in addition to, the ordinary expense of a defense. Ibid. Thus, while counsel fees and costs may be an element of damages in a successful malicious prosecution action, they do not by themselves constitute the special grievance necessary to make out the cause of action. Ibid. Similarly, [***18] mental anguish, emotional distress, or loss of reputation from the filing of a complaint are not the special injuries required to sustain a malicious prosecution action. Brien v. Lomazow, 227 N.J. Super. 288, 304, 547 A.2d 318 (App.Div.1988). On the other hand, the loss of one's ability to practice his or her profession, with a resultant loss of income, does constitute a special grievance. Giri v. Rutgers Cas. Ins. Co., 273 N.J. Super. 340, 347, 641 A.2d 1112 (App.Div.), certif. denied, 139 N.J. 185, 652 A.2d 174 (1994). And, in the context of [**351] SLAPP 3 litigation, we recognized that the deprivation of a citizen's constitutional right to protest and communicate regarding public issues qualifies as a special grievance. LoBiondo, supra, 323 N.J. Super. at 424, 733 A.2d 516. There, we observed:
[W]e do not read "interference with one's liberty" as embracing only physical freedom of movement and hence as limited to restraint on that freedom. Rather, we interpret "liberty" as including the entire bundle of freedoms afforded by the Constitution-including freedom of speech and freedom to petition.
[LoBiondo, supra, 323 N.J. Super. at 424, 733 A.2d 516.]
The "special grievance" element is not a requirement in a majority of jurisdictions. But Prosser tells us that "a very large minority protect the malicious litigant" unless his victim can show a special grievance, "such as interference with his person or property by reason of litigation." Prosser and Keeton on Torts § 120 at 889 (5th ed. 1984). On what constitutes a "special grievance," Prosser says that: [E]ven the restrictive jurisdictions have recognized liability in a large group of exceptional cases in which special injury or grievance is found to exist.
The most [***12] obvious exception is that of civil actions which are recognized as quasi-criminal in character, or which involve an interference with the person, as in the case of proceedings in lunacy, contempt, bastardy, juvenile delinquency, arrest under civil process, or binding over to keep the peace. But the extension of the remedy has gone even further, and has included proceedings in which there has been interference with property or business, or damage differing in kind from the ordinary burden of defending a lawsuit, such as attachment, garnishment, replevin, the search of premises under a warrant, injunctions, proceedings in bankruptcy, or for the dissolution of a partnership. Even proceedings before an administrative agency have been held to be sufficient, where they result in similar interference, as in the case of one for the suspension of an officer, or for the revocation of a license to do business. Several jurisdictions allow an action of malicious prosecution for any civil suit initiated a second time without ground, where they do not allow it for the first.
[Id. at 890-91 (footnotes omitted).] [*349] Prosser cites Mayflower Industries, supra, [***13] as an example of an injunction which puts a litigant, at least temporarily, out of business as a "special grievance." Id. at 890 n. 18.
Mayflower Industries states that: "Plainly, an injunction which prevented Thor from conducting its business in a particular area and from using, enjoying and dealing with its property, constitutes a special grievance." Mayflower Industries, supra, 15 N.J.Super. at 152, 83 A.2d 246. Other examples from our jurisprudence include the appointment of a receiver, obtaining a writ of replevin, filing a lis pendens, or preferment of charges against a police officer which results in suspension. Id.
Giri v. Rutgers Casualty Ins. Co., 273 N.J. Super. 340, 348-349 (App.Div. 1994) In Giri v. Rutgers Cas. Ins. Co., the Court found that the plaintiff, a doctor, had suffered a special grievance because, while facing a malicious lawsuit, he voluntarily shut down his business activities as a precautionary measure. Giri, 273 N.J. Super. 340, 641 A.2d 1112 (App. Div. 1994).
Component Hardware Group v. Trine Rolled Moulding Corp., 2007 U.S. Dist. LEXIS 54900 (D.N.J. July 27, 2007)