The opinion of the court was delivered by: Hoens
Plaintiffs Klesh and Consalvo own property near that of defendant Coddington on Bartle Lane in Bridgewater. Disputes concerning the public or private nature of that road and concerning access to that road have persisted for over three decades. The consolidated complaints now before this court seek recovery from Coddington and others for defamation, malicious abuse of process, malicious prosecution and emotional distress arising out of municipal complaints filed against both plaintiffs Consalvo and Klesh by Coddington asserting that plaintiffs' actions obstructed Bartle Lane in violation of N.J.S.A. 2C:29-1, 2C:33-7 and 2C:33-12, all disorderly persons offenses. Now before the court are the motions for summary judgment filed by certain of the defendants. These motions and the result we reach cannot be understood without careful explanation of the relevant facts.
Coddington asserts that in 1991 she was seeking to sell two lots of property she owned on Bartle Lane. She believed that plaintiffs individually and collectively impeded access onto the road, discouraged interest in the lots by advising potential purchasers that the road was private, obstructed the road to prevent necessary repairs by Public Service, placed nails and tar in the roadway to discourage travel on the road, and otherwise interfered with her ability to sell her property. She consulted with an attorney, defendant Bobrow, who concluded that a 1964 consent order made the roadway a public one. Coddington then determined, with Bobrow's advice, to file municipal complaints against Klesh and Consalvo for their obstruction of the road. She filed complaints against all plaintiffs charging obstruction of a highway, interference with government functions and creation of a nuisance, all classified as disorderly persons offenses. Defendant Lanigan, in his capacity as Township Attorney, is alleged to have encouraged Coddington to file the criminal charges in furtherance of his alleged plan to secure a judicial determination that Bartle Lane is a public roadway and is alleged to have directed the Municipal Prosecutor to pursue the complaints in Municipal Court. At trial certain charges were dismissed; the only successful charge was overturned on appeal.
In the complaints before this court, plaintiffs seek recovery from defendants for malicious abuse of process, malicious prosecution, emotional distress and defamation. As to Coddington, they contend that she knew the roadway was private, that she had no firsthand knowledge of any acts which would constitute violations of the statutes and that her decision to proceed with the complaints in the absence of such first hand information therefore makes her liable to them. In addition, the Consalvo complaint charges that Coddington defamed and libeled the Consalvos in a letter written to a local newspaper and the Klesh complaint charges Coddington with infliction of emotional distress and loss of consortium. Further, as to all defendants, both complaints contend that defendant Bobrow, Coddington's attorney, continued to prosecute the municipal court complaints even though he could not verify or corroborate the allegations, that he and defendant Lanigan, the township attorney, encouraged Coddington to file the complaints when each knew that Bartle Lane is a private roadway thus pursuing complaints without probable cause, and that Lanigan encouraged Coddington to write the defamatory letters to newspapers as well. Plaintiffs further contend that Bobrow improperly pressured Bridgewater's Municipal Prosecutor to pursue the charges and amended the charges thereafter without the knowledge or consent of his client. Finally, plaintiffs contend that Lanigan improperly advised township officials both before and after the municipal court trial that Bartle Lane is a public thoroughfare and that Lanigan caused these complaints to be pursued solely to achieve a judicial determination that the roadway is public. Because all of the claims were eventually resolved in plaintiffs' favor, they filed this complaint, seeking to recover against all defendants under theories of malicious prosecution and malicious abuse of process and for punitive damages, and against Coddington individually for defamation, and for infliction of emotional distress.
Before the court are the motions of Bobrow, Lanigan and the Township for summary judgment on the claims relating to malicious prosecution and malicious abuse of process. While Coddington did not join in these motions, as the identical analysis applies to these claims as they relate to her as well, the relief we would grant, if any, must also extend to her. As to each of these motions, the critical issue before the court, and one not previously directly addressed in New Jersey, is the appropriate legal standard to be applied to these claims.
In New Jersey, there is a distinction between the elements of a malicious prosecution claim depending on whether the underlying action was criminal or civil in nature. Potts v. Imlay, 4 N.J.L. 382, 386 (Sup. Ct. 1816). All parties agree that the elements of malicious prosecution based upon a prior prosecution which was criminal in nature were articulated in Lind v. Schmid, 67 N.J. 255, 262, 337 A.2d 365 (1975). There the Supreme Court held that the test has four elements:
(1) that the criminal action was instituted by the defendant against the plaintiff,
(2) that it was actuated by malice;
(3) that there was an absence of probable cause for the proceeding and,
(4) that it was terminated favorably to the plaintiff.
In order to prevail, plaintiff must prove each of these elements; the absence of any one of these elements is fatal to successful prosecution of the claim. Penwag Property Co. v. Landau, 76 N.J. 595, 597, 388 A.2d 1265 (1978).
However, when the underlying action was civil in nature, the plaintiff is required to allege and prove the additional element of special grievance. The reasoning behind the added requirement of special grievance where the prior proceeding was civil in nature rests upon the different implications of a civil as opposed to a criminal charge. As the Appellate Division reasoned in Vickey v. Nessler, 230 N.J. Super. 141, 553 A.2d 34 (App. Div. 1989), those differences are significant. In a typical civil case, suit is instituted by filing a complaint and issuance of a summons. R. 4:2-2; R. 4:4. There is no arrest, no restraint of liberty, no deprivation of a property right associated with the commencement of civil litigation, except in the rarest cases. In contrast, in a typical criminal case a defendant is usually arrested and suffers all the humiliation attendant thereto, including being held on bail, finger printed and photographed. The arrest alone therefore is perceived to be sufficiently egregious an injury to support the recovery without more. In contrast, the minimal impact of the commencement of civil litigation is insufficient for recovery without the additional showing of a special grievance. Id. at 147.
In the matter before this court, a considerable dispute has arisen over which standard applies, an issue which rests upon whether the municipal charges filed by defendants against plaintiffs were civil or criminal in nature. We have found no decisions directly on point, although several precedents offer guidance. In Vickey v. Nessler, 320 N.J. Super. 141 (App. Div. 1989), for example, as a part of the explanation for the rationale supporting different tests to be applied to civil and criminal matters, the court noted that "traffic offenses in this State are not criminal offenses and are tried in municipal courts in a summary manner". Id. at 148. Acknowledging that the prosecution of a traffic offense is regarded "as quasi-criminal to satisfy the requirements of fundamental fairness and essential Justice to the accused" and that certain rights are accorded to defendants charged with a traffic offense including those protected by a Miranda warning, double jeopardy, and the reasonable doubt standard, "these procedural safeguards do not ...