APPEAL from the Circuit Court of Cook County; the Hon. DAVID
A. CANEL, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Should the special injury requirement in malicious prosecution actions in Illinois continue to be the law in Illinois? That is the overriding issue raised in this appeal from the malicious prosecution and legal malpractice action brought by plaintiff, Joseph L. Stopka (Stopka), against Norman H. Lesser (Lesser). Lesser filed a motion to dismiss the suit for failure to state a cause of action. The principal issue before this court is whether Stopka has alleged sufficient facts to state a claim for relief. *fn1
Lesser is a licensed attorney. One of his clients, James Luzzi (Luzzi), suffered an injury for which he received medical treatment at a hospital emergency room. As a result of that treatment Lesser filed, in Luzzi's behalf, a medical malpractice suit against the hospital and a treating physician. Almost five months later, Lesser filed an amended complaint alleging that Stopka, a licensed physician, was guilty of medical negligence. Stopka, an inactive hospital staff member, had no connection with Luzzi's treatment. Seventeen months after he was named as a malpractice defendant, Stopka was dismissed from the action.
Stopka then brought this two-count complaint against Lesser. *fn2 In count one Stopka alleges that had Lesser consulted hospital records available to him through discovery, he would have known Stopka had no connection with Luzzi's treatment and, thus, he would have known no probable cause existed to sue Stopka. The record discloses no special circumstances attending Lesser's filing of the amended complaint, and the running of the statute of limitations was not imminent. Therefore, Stopka complains Lesser maliciously named Stopka as a medical malpractice defendant and caused him to be damaged in his reputation, to suffer mental anguish, to devote much time to his defense, and to pay increased medical malpractice insurance premiums.
Count two, in addition, states Lesser breached a duty to Stopka, proximately causing the aforesaid damages, and therefore is guilty of legal malpractice.
Lesser filed a motion to dismiss the complaint alleging Stopka failed to state sufficient facts to satisfy the special injury requirement for a malicious prosecution action. He also claimed that count two failed to state a cause of action because Lesser owed no recognized legal duty to Stopka. The trial court granted Lesser's motion and dismissed the action.
Stopka first contends he has alleged sufficient injury to justify recovery from Lesser. He argues that although the traditional definition of special injury may not include the injuries he has suffered, his injuries are equivalent to and should be treated like those suffered by successful claimants in suits sounding in other recognized torts. He also argues that the circumstances of this case require a reassessment of the special injury requirement to malicious prosecution actions in Illinois.
1 An action for malicious prosecution is brought to recover damages suffered by one against whom a suit has been filed maliciously and without probable cause. (Schwartz v. Schwartz (1937), 366 Ill. 247, 250, 8 N.E.2d 668.) To obtain recovery under the theory of malicious prosecution Illinois courts> have traditionally required a suitor to plead and prove the following five elements:
"(1) [T]he institution of civil proceedings by the defendant; (2) termination of such proceedings in favor of plaintiff; (3) want of probable cause for the proceeding; (4) malice on the part of defendant in bringing such proceedings; and (5) special injury to plaintiff as a result of such action." Alswang v. Claybon (1976), 40 Ill. App.3d 147, 150, 351 N.E.2d 285; see generally Bank of Lyons v. Schultz (1980), 78 Ill.2d 235, 239; Schwartz v. Schwartz; Bonney v. King (1903), 201 Ill. 47, 50, 66 N.E. 377; Smith v. Michigan Buggy Co. (1898), 175 Ill. 619, 627, 51 N.E. 569.
2 The element of special injury has been defined as that "injury not necessarily resulting in any and all suits prosecuted to recover for like causes of action." (Schwartz v. Schwartz (1937), 366 Ill. 247, 250.) Thus, the appellate court has held special injury to be that injury "beyond the anxiety, loss of time, attorney fees, and necessity for defending one's reputation, which are an unfortunate incident of many (if not most) lawsuits." Lyddon v. Shaw (1978), 56 Ill. App.3d 815, 818, 372 N.E.2d 685; see also Madda v. Reliance Insurance Co. (1977), 53 Ill. App.3d 67, 71, 368 N.E.2d 580, appeal denied (1978), 67 Ill.2d 592; see generally Ritchey v. Maksin (1978), 71 Ill.2d 470, 475, 376 N.E.2d 991; 52 Am.Jur.2d Malicious Prosecution § 11 (1970).
3 The instant count, construed in a light most favorable to Stopka, fails to set forth sufficient facts to meet the criteria stated above. Each of the four injuries alleged by Stopka fall within the "ordinary injury" Illinois courts> have expected defendants to suffer as the result of malpractice litigation, whatever its merits. See, e.g., Berlin v. Nathan (1978), 64 Ill. App.3d 940, 946, 381 N.E.2d 1367, appeal denied (1979), 72 Ill.2d 581 (same injuries claimed and rejected as special injuries); accord, Pantone v. Demos (1978), 59 Ill. App.3d 328, 336, ...