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Law School Case Brief

Gatto v. Publix Supermarket - 387 So. 2d 377 (Fla. Dist. Ct. App. 1980)


Failure to prove any essential element of a malicious prosecution action is fatal to the action. There are six elements to be established in a malicious prosecution case: (1) a criminal proceeding was commenced or continued against the plaintiff; (2) the defendant commenced or caused the commencement of such proceeding; (3) the criminal proceeding had a bona fide termination in the plaintiff's favor; (4) there was no probable cause for causing the commencement of the criminal proceeding; (5) the defendant acted with malice; (6) the plaintiff suffered damage.


Plaintiff filed a suit for damages charging assault and battery, false arrest and imprisonment, and that the defendant supermarket maliciously prosecuted plaintiff for shoplifting. The trial court granted a directed verdict in favor of the defendants. Plaintiff challenged the ruling.


Did the termination of the shoplifting prosecution establish an essential element of malicious prosecution?




The court reversed in part and remanded the case for a new trial on the malicious prosecution claim after it determined that when the Florida State Attorney's Office noted on the sworn complaint, no information, this constituted a bona fide termination of the criminal prosecution and satisfied an essential element of appellant's malicious prosecution claim. Further, there was no substantive distinction to be made by the fact the termination did not occur by nolle prosequi or by declination to prosecute because the election of any one form was dictated by the point in time abandonment or termination occurred. The court affirmed the trial court's ruling as to the claims for assault and battery, false arrest and imprisonment.

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