# Swick v. Liautaud > Illinois Supreme Court · January 18, 1996 · 169 Ill. 2d 504 URL: https://www.frixlaw.com/law-library/cases/9523973 ## Case - **Full name:** ANDREW C. SWICK Et Al., Appellees, v. JAMES LIAUTAUD Et Al., Appellants - **Court:** Illinois Supreme Court - **Decided:** January 18, 1996 - **Citations:** 169 Ill. 2d 504; 215 Ill. Dec. 98; 662 N.E.2d 1238; 11 I.E.R. Cas. (BNA) 64; 1996 Ill. LEXIS 3 - **Precedential status:** Published - **Opinion:** Concurrence by McMORROW - **Judges:** Heiple, Harrison, McMorrow - **Cited by:** 316 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9523973 ## How later opinions describe it (automated extraction) - recognizing that at trial, plaintiff must adduce evidence to meet its burden of proof that the prior proceedings were terminated under circumstances indicative of plaintiff’s innocence - finding the question of innocence unresolved where the plaintiff “did not prove that the State lacked reasonable grounds to pursue the criminal charges” - finding that a plaintiff must establish all five elements in order to pursue a malicious prosecution claim ## Opinion text JUSTICE McMORROW, specially concurring: I agree with the majority on the nolle prosequi issue presented in this appeal. In view of the disposition of the case,, it would be premature at this time to decide whether the award of punitive damages was excessive. However, because the issue was raised in the briefs, and in the interests of guidance for and fairness to the parties, I believe we should address the general question of whether punitive damages may be recovered in a malicious prosecution case. In jurisdictions which recognize punitive damages, the general rule has long been that such damages are available in malicious prosecutions cases. (See, e.g., Donnell v. Jones (1848), 13 Ala. 490 ; Davis v. Seeley (1894), 91 Iowa 583 , 60 N.W. 183 ; Sperier v. Ott (1906), 116 La. 1087 , 41 So. 323 ; Jackson v. American Telephone and Telegraph Co. (1905), 139 N.C. 347 , 51 S.E. 1015 ; Kraft v. Montgomery Ward & Co. (1959), 220 Or. 230 , 348 P.2d 239 ; Barnett v. Reed (1865), 51 Pa. 190 ; Rice v. Miller (1888), 70 Tex. 613 , 8 S.W. 317 ; McIntosh v. Wales (1913), 21 Wyo. 397 , 134 P. 274 . See also Restatement (Second) of Torts § 673, Comment k (1976) ("Because of the nature of the tort itself, punitive damages are always possible in actions for malicious prosecution”).) In Illinois, with the exception of cases arising in response to medical malpractice litigation (735 ILCS 5/2 — 109 (West 1994)), punitive damages have been available in malicious prosecution actions for at least 125 years. Lawrence v. Hagerman (1870), 56 Ill. 68, 76 (noting, even then, that the rule was "well established”). Notwithstanding this weight of authority, defendants argue that, as a matter of sound public policy, punitive damages should not be available in actions for malicious prosecution. In support of their contention, defendants argue by way of analogy to the tort of intentional infliction of emotional distress. Defendants maintain that, just as punitive damages are not permissible in an action for intentional infliction of emotional distress, they also should be unavailable in an action for malicious prosecution. In Knierim v. Izzo (1961), 22 Ill. 2d 73 , this court recognized the tort of intentional infliction of emotional distress. This court also stated that "punitive damages cannot be sanctioned as an additional recovery in such an action. Since the outrageous quality of the defendant’s conduct forms the basis of the action, the rendition of compensatory damages will be sufficiently punitive.” (Knierim, 22 Ill. 2d at 88 .) This principle has been further explained: "Some intentional torts are defined in terms of outrageous conduct, with the minimum required to state a cause of action under the tort so high that, once the elements of the action are there, no room remains for conduct that exceeds, that is more wanton and malicious, than that which defines the underlying tort.” (Lynch v. Mid-America Fire & Marine Insurance Co. (1981), 94 Ill. App. 3d 21, 32 (Craven, J., concurring in part & dissenting in part).) Defendants contend that malicious prosecution is such a tort and that, therefore, punitive damages should be unavailable. I am not persuaded that this position should be adopted. Malicious prosecution is not analogous to intentional infliction of emotional distress. By definition, conduct sufficient to support a cause of action for intentional infliction of emotional distress will always support an award of punitive damages. The same is not true in a malicious prosecution case: a defendant’s conduct may be sufficiently malicious to support the underlying cause of action without necessarily being sufficient to support an award of punitive damages. (See generally Annot., Defendant’s State of Mind Necessary or Sufficient to Warrant Award of Punitive Damages in Action for Malicious Prosecution, 94 A.L.R.3d 791 (1979).) As this court has noted, "[m]alice, as an element of malicious prosecution, does not necessarily mean personal ill-will, spite or hatred toward the person prosecuted, but is proved by showing that the prosecutor was actuated by improper motives.” (Glenn v. Lawrence (1917), 280 Ill. 581, 586 .) Because there is a degree of malicious conduct, i.e., ill-will, spite or hatred, which exceeds that defining the underlying tort, the concern animatipg the restriction on punitive damages for the tort of intentional infliction of emotional distress is not present here. Thus, there is no reason to conclude, as a matter of law, that punitive damages should not be available in a malicious prosecution case. This conclusion does not, however, complete the discussion regarding punitive damages and malicious prosecution. Important issues remain concerning the degree of malice necessary to establish liability for malicious prosecution and the degree of malice necessary to sustain an award of punitive damages. (See, e.g., Burnett v. Griffith (Mo. 1989), 769 S.W.2d 780 ; Sanders v. Daniel International Corp. (Mo. 1984), 682 S.W.2d 803 ; Adams v. Whitfield (Fla. 1974), 290 So. 2d 49 .) A satisfactory analysis of these issues necessarily involves a detailed discussion of the facts of this case and is beyond the scope of this brief concurrence. For the time being, I simply note my concern with these issues and my belief that they merit serious discussion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9523973. Public record. Not legal advice.