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Carlson v. Banks

February 26, 2007

MARLENE CARLSON, PLAINTIFF,
v.
OFFICER BANKS AND THE VILLAGE OF SOUTH CHICAGO HEIGHTS, DEFENDANTS.



The opinion of the court was delivered by: Judge Filip

DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW, ALTERNATIVELY FOR A NEW TRIAL ON ALL ISSUES, OR FOR ISSUANCE OF A REMITTITUR

NOW COME the defendants, THE VILLAGE OF SOUTH CHICAGO HEIGHTS and OFFICER DEAN BANKS, by their attorneys, DOWD & DOWD, LTD., and pursuant to F.R.C.P. 50(a), 50(b) and 59(a), move this Honorable Court for entry of an order granting them judgment as a matter of law, or, in the alternative, a new trial as to all issues, or for a remittitur of damages. Additionally, Dean Banks and the Village of South Chicago Heights renew their previously filed motion for judgment as a matter of law.

I. DEAN BANKS AND THE VILLAGE ARE ENTITLED TO JUDGMENT AS A MATTER OF LAW AS TO THE MALICIOUS PROSECUTION CLAIM

A. Since the jury concluded that Dean Banks had probable cause to arrest the plaintiff, Defendants are entitled to judgment as a matter of law as the malicious prosecution claim.

Lack of probable cause for instituting criminal proceedings is an indispensable element of a malicious prosecution action. Turner v. City of Chicago, 415 N.E.2d 481, 485, 91 Ill.App.3d 931, 935 (1st Dist.1980). If it appears that there was probable cause to institute the proceedings, such fact alone constitutes an absolute bar to an action of malicious prosecution. Id. In order to support an action for malicious prosecution, there must be both malice and a lack of probable cause and both most concur. Id.

The plaintiff's complaint comprises four counts and includes a claim for malicious prosecution. On February 16, 2007, the jury returned a verdict in which they found as follows:

· For the plaintiff on her excessive force claim;

· For Dean Banks on the battery claim;

· For Dean Banks on the unlawful arrest claims;

· For the plaintiff on the malicious prosecution claim.

In order to establish a prima facie case of malicious prosecution, Marlene Carlson necessarily had to prove the following elements:

· That the defendants commenced or continued an original judicial proceeding against the plaintiff;

· That the proceeding terminated in favor of the plaintiff in a manner indicative of innocence;

· That the defendant instituted the proceeding without probable cause;

· That the defendant acted maliciously in initiating or continuing the proceedings;

· That the plaintiff sustained damages;

ยท That the defendant's conduct was the proximate cause of ...


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