GARY MARTIN V. STEPHEN O'DANIEL AND MIKE SAPP V. STEPHEN O'DANIEL AND BOBBY MOTLEY V. STEPHEN O'DANIEL

Stephen O'Daniel is a retired Kentucky State Police (KSP) officer. He was

employed by the Justice and Public Safety Cabinet as Executive Director of the

Office of Investigations when he purchased what was purportedly a 1974

Chevrolet Corvette. After discovering that the vehicle was actually a 1975

Corvette, O'Daniel sought the assistance of Detective Riley of KSP's stolen

vehicle division.

Riley confirmed for O'Daniel the vehicle had been stolen in 1981 nearly

twenty years before 0 Daniel acquired it. Riley also informed O'Daniel that

after the owner of the stolen Corvette was paid for the loss by State Farm

Insurance Company his ownership interest in the car was transferred to State

Farm as a result of the settlement. O'Daniel contacted State Farm to ascertain

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its interest in the car and was initially informed that State Farm claimed no

interest in it.'

O'Daniel then contacted the Jessamine County Court Clerk and with her

assistance, submitted an application for a new title to the car. Upon review of

the application, a Kentucky Department of Transportation title branch

manager suspected it may be fraudulent and contacted KSP. A criminal

investigation into O'Daniel's application ensued, conducted by Appellants

Motley and Martin under the supervision of Appellant Sapp. The Justice

Cabinet's General Counsel, Secretary, and Assistant Secretary got involved,

apparently in an effort to end the investigation or transfer it to local law

enforcement officials. Nevertheless, KSP maintained its control over the case

and the officers continued their investigation.

The officers presented the results of the investigation to Franklin County

Commonwealth's Attorney, Larry Cleveland. Cleveland expressed doubt about

the viability of bringing a criminal charge because proof of criminal intent

seemed to be lacking. He declined to prosecute, but citing an unspecified

conflict of interest, he asked the Kentucky Attorney General to assign a special

prosecutor to review the case. Jefferson County Commonwealth's Attorney,

David Stengel, was appointed as special prosecutor. Stengel presented the

case, which included Martin's testimony and some of the evidence collected by

1 State Farm later found records pertaining to its payment to its insured for the loss of the car and would later assert a claim to it, leading 0 Daniel to file an action in the Jessamine Circuit Court for a declaratory judgment resolving the legal title to the vehicle.

3

the officers, to the grand jury. The grand jury indicted O'Daniel for second

degree forgery in connection with his application to secure a new title for the

Corvette. O'Daniel pled not guilty, and the case went to trial. The jury

acquitted him, and, soon thereafter, he brought a malicious prosecution action

against the officers in the Franklin Circuit Court.

The officers moved for summary judgment seeking dismissal of

O'Daniel's complaint, arguing that they were immune from civil suit for their

actions, and that as mere witnesses in O'Daniel's criminal case, they were not

responsible for the "institution or continuation of original judicial proceedings"

as required by Raine v. Drasin, 621 S.W.2d 895, 899 (Ky. 1981). They argued

that the criminal prosecution of O'Daniel was not conducted "by, or at the

instance of the officers, as required by Raine.

The trial court granted summary judgment, holding that since the

officers had neither arrested O'Daniel nor filed a criminal complaint against

him, and because the special prosecutor had made the ultimate decision to

seek an indictment and to proceed with the prosecution, O'Daniel could not

establish that the criminal prosecution was instituted "by or at the instance of

the officers, an essential element of the tort of malicious prosecution. The trial

court also concluded that summary judgment was required because the

officers were shielded from liability for malicious prosecution by the doctrine of

immunity as expressed by the United States Supreme Court in Rehberg v.

Paulk, 132 S. Ct. 1497, 1508 (2012).

4

On appeal, the Court of Appeals reversed the summary judgment and

remanded the case to the trial court for further proceedings. We granted

discretionary review, and for the reasons set forth herein, we affirm the Court

of Appeals.

II. ANALYSIS

A. The officers were not entitled to dismissal of the malicious prosecution action on grounds of absolute immunity or qualified official immunity.

We begin this analysis by disposing of the question of whether police

officers enjoy the protections of either absolute immunity or qualified official

immunity for the activity alleged in O'Daniel's malicious prosecution claim.

The trial court upheld the officers' claim of immunity, citing Rehberg v. Paulk.

Rehberg holds that because a grand jury witness's testimony is absolutely

privileged, law enforcement officers (or any other grand jury witness) have

absolute immunity from lawsuits brought under 42 U.S.C. § 1983 based upon

their grand jury testimony. Id. at 1506. As explained in Rehberg, the scope of

immunity available to state government officials in a federal civil rights action

under § 1983 derives from the state's common law immunity doctrine. Id. at

1502.

Consistent with Rehberg, Kentucky's common law protects grand jury

witnesses from civil suits predicated upon their testimony. "[I]t is a well-settled

rule in practically all jurisdictions that the [false] testimony of a witness given

in the course of a judicial proceeding is privileged and will not support a cause

of action against him." Reed v. Isaacs, 62 S.W.3d 398, 399 (Ky. App. 2000)

(quoting McClarty v. Bickel, 159 S.W. 783, 784 (Ky. 1913)).

In reversing the trial court, the Court of Appeals held that

Rehberg's extension of absolute immunity to law enforcement officers for

grand jury testimony applies only in federal civil rights actions brought

under § 1983, and has no application to the instant case. We agree that

the officers are not immune from O'Daniel's suit but for slightly different

reasons.

O'Daniel's claim of malicious prosecution is not predicated simply upon

Martin's grand jury testimony and the testimony of Motley and Sapp in

O'Daniel's criminal trial. Rather, O'Daniel alleges that the officers engaged in a

wide range of activities to encourage and promote the indictment and

prosecution of O'Daniel, including the concealment of exculpatory evidence

from the prosecutor. The protection afforded to the officers by the doctrine of

immunity based upon their privileged testimony does not extend to the other

activities upon which O'Daniel's claim of malicious prosecution is based. We

are aware of no doctrine that extends absolute immunity to such activities, and

notably, the parties have cited none.

The officers also claim they are covered by Kentucky's doctrine of

qualified official immunity. We likewise find that defense to be

unavailable in a malicious prosecution action but for a more

fundamental reason. As explained in Yanero v. Davis, qualified official

immunity is available only to officials acting in good faith. 65 S.W.3d

510, 522 (Ky. 2001) ("[W]hen sued in their individual capacities, public

officers and employees enjoy only qualified official immunity, which

affords protection from damages liability for good faith judgment calls

made in a legally uncertain environment.").

Acting with malice and acting in good faith are mutually exclusive.

Malice is a material fact that a plaintiff must prove to sustain a malicious

prosecution claim. Raine, 621 S.W.2d at 899. But, it is also a fact that

defeats the defendant's assertion of qualified official immunity. Official

immunity is unavailable to public officers who acted "with the malicious

intention to cause a deprivation of constitutional rights or other injury . .

. ." Yanero, 65 S.W.3d at 523 (quoting Harlow v. Fitzgerald, 457 U.S. 800,

815 (1982).

It thus becomes apparent that the very same evidence that

establishes the eponymous element of a malicious prosecution action

simultaneously negates the defense of official immunity. In simpler

terms, if a plaintiff can prove that a police officer acted with malice, the

officer has no immunity; if the plaintiff cannot prove malice, the officer

needs no immunity.

Therefore, in the context of a malicious prosecution claim against

state law enforcement officers, the issue of qualified official immunity is

superfluous. The same would also be true with respect to any cause of

action predicated upon malice instead of negligence or some other basis

of liability. We agree with the officers' assertion that qualified official

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immunity is not limited to negligence actions. But, while absolute

immunity will prevail even against acts that are maliciously motivated,

Morgan & Pottinger, Attorneys, P.S.C. v. Botts, 348 S.W.3d 599, 601 (Ky.

2011), qualified official immunity yields to proof that a defendant's

actions were malicious. Consequently, when a plaintiff must prove

malice to sustain his cause of action, a defense of qualified official

immunity has little meaning and no effect,

Here, the officers were not entitled to summary judgment on the

grounds of qualified official immunity because they did not show that

O'Daniel could not satisfy his burden of proving malice, which is an issue

of fact to be decided by the jury and may be inferred, or not, from the

absence of probable cause. Mosier v. McFarland, 269 Ky. 214, 106

S.W.2d 641, 642-643 (1937).

Accordingly, we affirm the opinion of the Court of Appeals with

respect to this issue.

B. The Court of Appeals correctly reversed the summary judgment but remanded the case for reconsideration under an improper standard.

The Court of Appeals disagreed with the trial court's application of the

phrase from Raine v. Drasin: "the institution or continuation of original judicial

proceedings . . . by, or at the instance of" the officers. As witnesses and

investigators, the officers obviously did not "institute" the criminal proceeding

against O'Daniel; the grand jury and the prosecutor did. The more difficult

consideration is whether the prosecution of O'Daniel was instituted "at the

instance or the officers. The trial court's conclusion that the officers could not

8

be held liable, as a matter of law, for malicious prosecution because they had

neither arrested O'Daniel nor sworn out a criminal complaint against him was

erroneous. We therefore affirm the Court of Appeals' reversal of the summary

judgment. But, we further conclude for reasons set forth below that the Court

of Appeals remanded the case with improper directions for reconsideration.

After struggling with the meaning of the "at the instance of" element of

malicious prosecution, the Court of Appeals remanded the matter to the trial

court with directions to consider the elements of malicious prosecution set

forth by the Sixth Circuit Court of Appeals in Sykes v. Anderson, 625 F.3d 294

(6th Cir. 2010).2 Of particular interest here is the following holding from

Sykes:

To succeed on a malicious-prosecution claim under § 1983 when the claim is premised on a violation of the Fourth Amendment, a plaintiff must prove the following: First, the plaintiff must show that a criminal prosecution was initiated against the plaintiff and that the defendant made, influenced, or participated in the decision to prosecute.

625 F. 3d at 308 (internal citations and quotations omitted) (emphasis added).

The Court of Appeals also relied upon the decision of the United States

District Court for the Western District of Kentucky in Phat's Bar and Grill v.

Louisville Jefferson County Metro Government's, 918 F. Supp. 2d 654 (W.D. Ky.

2 When the Court of Appeals entered its opinion, Raine v. Drasin remained the controlling precedent delineating the elements of malicious prosecution claims in Kentucky. While Sykes' rendition of the elements of malicious prosecution in the federal context provides useful context for interpreting and applying Raine, it differs from Raine. For example, the federal standards cited in Sykes do not require proof of malice.

9

2013). In Phat's Bar, Judge John G. Heyburn applied Kentucky law in a

malicious prosecution claim against a Louisville police officer. Wrestling with

the meaning of Raine's "by, or the instance of language, Judge Heyburn

concluded: "The test for determining that the proceedings against plaintiff were

`by, or at the instance, of the officer', is whether the defendant 'sets the

machinery of the law in motion."' Id. at 664 (citing McMaster v. Cabinet for

Human Resources, 824 F.2d 518, 521 (6th Cir. 1987), quoting First National

Bank of Mayfield v. Gardner, 376 S.W.2d 311, 316 (Ky. 1964)). The plaintiff

met the standard by producing evidence of the officer's presence at meetings

with the prosecutor suggesting he had "aided in the prosecution's decisions"

and thereby "participated in the decision to prosecute." Id. at 661.

The phrase "at the instance of is, at best, ambiguous, especially in the

context of examining the potential liability of police officers for their

participation in a criminal investigation that resulted in an indictment, and

ultimately, an acquittal. We granted discretionary review to address that

ambiguity. Although we agree that the Court of Appeals correctly determined

that the case must be remanded for reconsideration in the trial court, directing

the trial court to reconsider the matter under Sykes was improper. The

malicious prosecution standard cited in Sykes differs from the elements of

malicious prosecution set out in Raine, which was the prevailing authority

under Kentucky law.

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C. The Raine articulation of malicious prosecution and the need for revision.

Malicious prosecution is an ancient and well-established common law

cause of action with a long history in Kentucky jurisprudence. 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."); Campbell v.

Threlkeld, 32 Ky. 425 (Ky. 1834) ("An action for prosecuting a malicious suit, is

not sustained by mere proof, that the plaintiff in the suit complained of, was

defeated; the malice and want of probable cause, must also be shown.").

Historically, the tort of malicious prosecution has been disfavored because it

runs contrary to the public policy supporting the exposure and prosecution of

criminal conduct. Lexington Cab Co. v. Terrell, 137 S.W.2d 721, 724 (Ky.

1940). We express that disfavor by requiring strict compliance with the

prerequisites for maintaining a malicious prosecution action. Raine, 621

S.W.2d at 899 (citing Davis v. Brady, 291 S.W. 412 (Ky. 1927)). This

requirement of strict compliance is all the more reason for an unambiguous

articulation of the essential elements of a malicious prosecution claim.

The elements of malicious prosecution have remained substantively

unchanged over the past two centuries, but the language used to describe the

elements has varied from time to time. Raine v. Drasin provides the most

recent articulation of the tort's elements, and as noted above, it is one which

requires clarification.

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Raine identifies six elements of a malicious prosecution claim and

enumerates them as follows:

(1) the institution or continuation of original judicial proceedings, either civil or criminal, or of administrative or disciplinary proceedings; (2) by, or at the instance, of the plaintiff [meaning defendant in the malicious prosecution action]; (3) the termination of such proceedings in defendant's [meaning plaintiff's in the malicious prosecution action] favor; (4) malice in the institution of such proceeding; (5) want or lack of probable cause for the proceeding; and (6) the suffering of damage as a result of the proceeding.

621 S.W.2d 895, 899 (Ky. 1981). 3

An immediately apparent shortcoming of the Raine articulation is its

reference to "the plaintiff" in the underlying litigation. As noted in Raine's first

enumerated element, a malicious prosecution claim may arise from civil

actions and criminal prosecutions. Of course, in every underlying criminal

action, the "plaintiff" is the Commonwealth of Kentucky. Raine's references to

actions instituted by or at the instance of "the plaintiff" is unnecessary and ill-

3 Raine unfortunately defines the elements of malicious prosecution with reference to the parties' status in the underlying action rather than the more conventional use of their status as parties in the malicious prosecution action. Thus, Raine's second element, "by, or at the instance of the plaintiff," actually refers to the defendant in the malicious prosecution action. Likewise, the third element identified in Raine, "termination of such proceedings in the defendant's favor," refers to the plaintiff in the malicious prosecution action. Other states have avoided this confusion. See Parrott v. Plowden Motor Company, 143 S.E.2d 607, 608 (S.C. 1965) (citing 34 Am. Jur. Malicious Prosecution, Sec. 6, p. 706); Page v. Wiggins, 595 So. 2d 1291, 1293 (Miss. 1992). 52 Am. Jur. 2d Malicious Prosecution § 8 (2016) currently lists the elements of a malicious prosecution claim, likewise defining the elements in terms of the parties' status relative to the malicious prosecution, rather than the underlying action. See generally Marchbanks v. Young, 139 P.2d 594, 597 (N.M. 1943) ( "It is a general rule that in an action for malicious prosecution . . . the plaintiff must allege a termination in his favor of the prosecution or suit complained of. 34 Am. Jur. Sec. 114, p. 771.") (internal quotation omitted). We prefer that convention and shall, henceforth, employ it.

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suited to malicious prosecution cases arising from a criminal prosecution.

Trial courts applying Raine must accommodate that discrepancy, as Judge

Heyburn did in Phat's Bar, substituting the word "officer" for "plaintiff" when

reciting the malicious prosecution elements. 918 F. Supp. 2d at 664.

Raine's first element is relatively easy to apply. The "institution" of a

judicial proceeding is, in the usual case, self-evident. The second element,

whether the proceeding was instituted "by or at the instance of" the malicious

prosecution defendant, is problematic because the meaning of "at the instance

of" is imprecise. The word "instance" used in that context is no longer a part of

the common English vernacular, and has become somewhat archaic. A general

search of Kentucky jurisprudence discloses that it has most often been used to

mean nothing more ardent than a simple request or suggestion. 4

Raine cites Cravens v. Long, 257 S.W.2d 548 (Ky. 1953), as authority for

the essential elements of a malicious prosecution claim. It is worth noting that

the Cravens court did not employ the "at the instance of phrasing. Instead,

Cravens expressed the element as showing the defendant to be the "proximate

and efficient cause of putting the law in motion against the plaintiff." Id. at

549. That terminology was echoed in Phat's Bar. 918 F. Supp. 2d at 664.

4 See Nahm v. Aden, 1874 WL 6721 at *2 (Ky. Sept. 26, 1874) ("The court, at the instance of appellant, defined 'probable cause' . . . ."); Calvert v. Brown & Williamson Tobacco Co., 465 S.W.2d 75, 76 (Ky. 1971) ("Dr. Paul J. Ross ... had examined appellant (at the instance of her own physician) . . . ."); Henderson v. Commonwealth, 507 S.W.2d 454, 458 (Ky. 1974) ("On the day of the trial an appropriate officer . . . appeared in response to a subpoena duces tecum issued at the instance of Henderson's counsel . . . ."). See also Branham v. Berry, 4 Ky. L. Rptr. 412, 413 (Ky. Superior Oct. 2, 1882) ("It does not appear at whose instance the qualification was appended [to the malicious prosecution jury instructions).").

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Numerous other cases preceding Raine did the same. See, e.g., Ballard v.

Cash, 230 S.W. 48, 48-49 (Ky. 1921) ("It is thoroughly established in this state,

at least, that a cause of action for malicious prosecution accrues, the other

necessary elements being present, as a result 'of putting the law in motion'

against the plaintiff . . . ."); Cook v. Bratton, 181 S.W. 1108, 1109 (Ky. 1916)

("[T]o sustain an action for malicious prosecution it must affirmatively appear .

.. that the defendant was the proximate and efficient cause of putting the law

in motion against the plaintiff in the action."); and McClarty v. Bickel, 159 S.W.

783, 784 (Ky. 1913) ("To sustain an action for malicious prosecution, it must

affirmatively appear . . . that the [defendant] was the proximate and efficient

cause of maliciously putting the law in motion.").

Grau v. Forge differentiated malicious prosecution from false

imprisonment with this explanation:

Suits for false arrest and imprisonment are very similar in their nature to those for malicious prosecution. The chief difference in the two cases consists in the persons proceeded against. In the one case the defendant is the person making the arrest, while in the other he is the one who sets the law in motion and causes the arrest to be made.

209 S.W. 369, 371 (Ky. 1919) (emphasis added).

Perhaps the most persistent description of the element to appear in our

early jurisprudence is that the defendant "procured" the prosecution of the

plaintiff. As early as 1818, Carrico v. Meldrum, 8 Ky. 224, 224 (Ky. 1818),

stated, "In a declaration for malicious prosecution, the only material allegations

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are, that the prosecution was procured by defendant maliciously and without

probable cause." (Internal quotation marks omitted, emphasis added.)

Wood v. Weir, 44 Ky. 544, 550 (Ky. 1845) provided:

Upon the whole, we think that the order . . . was procured without probable cause or legal excuse, and that from the want of probable cause or excuse, connected with the oppressive and illegal terms exacted in the bond, unaccounted for or explained, malice might and should have been implied by the jury, and the plaintiff has sustained damages to some amount.

(Emphasis added.)

Branham v. Berry, 4 Ky. L. Rptr. 412, 413 (Ky. Superior Oct. 2, 1882) 5,

approved jury instructions providing that in order to find the defendant liable

for malicious prosecution, the jury must believe that he "did cause the

plaintiff's arrest and prosecution, or procured [the co-defendant] to do so."

(Emphasis added.)

Roberts v. Thomas, 121 S.W. 961, 962 (Ky. 1909) states: "The person who

procured the warrant to be issued and thus caused the arrest is liable to an

action for malicious prosecution if he acted with malice and without probable

cause." (Emphasis added.)

5 Citations to Kentucky's Superior Court are now unusual. The Superior Court was a three-judge, intermediate-level appellate court formed by the General Assembly in 1882 pursuant to authority granted by Kentucky's Third Constitution (1850-1892), to relieve a perceived backlog of cases pending before the Court of Appeals, then Kentucky's highest court. See Kurt X. Metzmeier, Selected Works of Kurt X. Metzmeier, History of the Courts of Kentucky, University of Louisville (December 2006.)

15

Prior to Raine, the phrase, "at the instance of" used in connection with

an arrest appears in several cases. Meyer v. Louisville, St. L. & T. Ry. Co., 33

S.W. 98, 98 (Ky. 1895) ("The appellant was a conductor on a freight train of the

appellee, and was arrested . . . at the instance of the company . . . ."); Dean v.

Noel, 70 S.W. 406, 407 (Ky. 1902) ("The petition alleges that at the instance of

appellant the warrant was issued, the arrest made, and trial had before the

police judge, who held him to answer to the circuit court . . . This affidavit or

answer admits that appellee was arrested at the instance of appellant . . . .").

In context, these examples seemingly connote an activity no more insistent or

compelling than a simple request.

In First National Bank of Mayfield v. Gardner, 376 S.W. 2d 311, 315 (Ky.

1964), our predecessor Court observed that Kentucky's malicious prosecution

law in cases arising from an underlying civil action was consistent with

Restatement of Torts § 674, which it cited as:

One who initiates or procures the initiation of civil proceedings against another is liable to him for the harm done thereby, if (a) the proceedings are initiated (i) without probable cause, and (ii) primarily for a purpose other than that of securing the adjudication of the claim on which the proceedings are based, and (b) except where they are ex parte, the proceedings have terminated in favor of the person against whom they are brought.

Gardner also reiterated Section 674's explanation that:

The person who initiates civil proceedings, is the person who sets the machinery of the law in motion whether he acts in his own name, or in that of a third person, or whether the proceedings are brought to enforce a claim of his own, or that of a third person.

16

Id. at 316. Notably, Raine also relied upon Section 674, which by then had

been incorporated, unchanged, into the Restatement (Second) of Torts § 674

Wrongful Use of Civil Proceedings (1977).

Raine substituted the "by, or at the instance of terminology in place of

the more conventional phrasing found in the Restatement and in earlier

Kentucky decisions. Our review persuades us that the Raine court did not

intend to alter the traditional elements of the tort by changing the activity upon

which liability may be predicated. As demonstrated above, our courts over the

ages have expressed the element in different terms without substantively

changing its meaning. Given the lack of clarity inherent in Raine's use of "at

the instance," we find it advantageous to revert to the more widely recognized

language of the Restatement as it is entirely consistent with our historical

application of the tort of malicious prosecution.

The Restatement (First) of Torts and the Restatement (Second) of Torts

provide separate sections to explain malicious prosecution claims arising out of

civil litigation and those arising from criminal prosecutions, although the

essential elements of the two are virtually the same. Our review of Kentucky

malicious prosecution law discloses that we have not differentiated malicious

prosecution claims that arise from a prior civil action from those arising out of

a criminal prosecution. Raine adhered to that tradition and we see no reason

to depart from it.

Restatement (Second) of Torts § 653 Wrongful Prosecution of Criminal

Proceedings (Malicious Prosecution) (1977) provides:

17

A private person who initiates or procures the institution of criminal proceedings against another who is not guilty of the offense charged is subject to liability for malicious prosecution if (a) he initiates or procures the proceedings without probable cause and primarily for a purpose other than that of bringing an offender to justice, and (b) the proceedings have terminated in favor of the accused. 6

Restatement (Second) of Torts § 674 Wrongful Use of Civil

Proceedings (1977) provides:

One who takes an active part in the initiation, continuation or procurement of civil proceedings against another is subject to liability to the other for wrongful civil proceedings if (a) he acts without probable cause, and primarily for a purpose other than that of securing the proper adjudication of the claim in which the proceedings are based, and (b) except when they are ex parte, the proceedings have terminated in favor of the person against whom they are brought.

We see no substantive difference between Sections 653 and 674. Both

predicate liability upon the defendant's role in initiating or procuring the prior

litigation; both require the lack of probable cause; both require a showing that

the defendant acted primarily for a purpose other than the proper adjudication

of the underlying action, which is the essence of malice; and, both require a

termination of the underlying claim in favor of the malicious prosecution

plaintiff.? The Restatement's articulation of the tort, consistent with the history

6 Section 653's reference to "private person" can be read as excluding of public officials, including police officers, from liability for malicious prosecution. Such an exclusion has never been the law in Kentucky.

7 Section 674(b) notes an exception to the "favorable termination" requirement: ex parte civil proceedings initiated or procured by a malicious prosecution defendant

18

of the tort in Kentucky, captures all of the elements cited in Raine but does so

in a simpler, more comprehensible manner.

D. The revised articulation of the elements of malicious prosecution

Consistent with our established tradition, our adaptation of the

Restatement terminology is merged into a single statement applicable to

malicious prosecution claims arising from either civil or criminal proceedings

or administrative disciplinary proceedings. We hereby abrogate our expression

of the malicious prosecution elements set out in Raine v. Drasin in favor of the

following articulation. A malicious prosecution action may be established by

showing that:

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.

Under the solidly-established principles of the tort of malicious

prosecution as it developed in Kentucky, "procuring" a criminal or civil judicial

need not have terminated in favor of the malicious prosecution plaintiff, presumably because the plaintiff would not have had an opportunity to participate in such adjudication. We are aware of no cases in which this exception has been applicable. An ex parte action for a restraining order under CR 65 would be an example of such an adjudication.

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proceeding is synonymous with "being the proximate and efficient cause of

putting the law in motion against another person."

In the instant case, the trial court rejected O'Daniel's claim and granted

the summary judgment because none of the defendant officers had "instituted"

the criminal charges against O'Daniel by arresting him, by filing of a criminal

complaint against him, or by indicting him. We conclude, however, that

"procuring" the criminal proceeding would encompass a wider range of conduct

than allowed by the trial court. Certainly, it would include O'Daniel's claim

that the officers induced the prosecutor to commence the proceedings by

providing him with inaccurate, false, and misleading information.

Accordingly, we affirm the Court of Appeals insofar as it reversed the

summary judgment and remanded the case for renewed consideration.

However, upon remand, we direct the trial court to reconsider the officers'

motion for summary judgment based upon the articulation of the elements of

malicious prosecution set forth herein.