The court held that a jury could infer that "Wal-Mart was the `proximate and efficient cause of maliciously putting the law in motion.'" Id. (quoting Seidel v. Greenberg, 260 A.2d 863, 869 (N.J. Super. Ct. Law Div. 1969)). Here, the Court finds that because Smith did not institute a criminal proceeding by calling 9-1-1 to report Plaintiff's behavior, Smith is entitled to summary judgment on Plaintiff's malicious prosecution claim.

A person is considered to have participated in a criminal action against another for purposes of a malicious prosecution charge if he has taken some "affirmative action by way of advice, encouragement, pressure, etc., in the institution, or causing the institution, of the prosecution or in affirmatively encouraging its continuance after it has been instituted." Seidel v. Greenberg, 108 N.J.Super. 248, 257, 260 A.2d 863 (Law Div. 1969); see Devlin v. Greiner, 147 N.J.Super. 446, 471, 371 A.2d 380 (Law Div. 1977) (stating that to be held liable for malicious prosecution, defendant must "`take some active part in instigating or encouraging the prosecution'") (quoting Prosser, Law of Torts § 119, at 836-37 (4th ed. 1971)). "Mere passive knowledge of, or acquiescence or consent in, the acts of another who causes a prosecution is not sufficient to make one liable" for malicious prosecution.

See Walford v. Blinder, Robinson Co., Inc., 793 P.2d 620, 623 (Colo.App. 1990); see also RESTATEMENT, SECOND, TORTS, § 653 (elements of malicious prosecution include initiation or procurement of proceedings without probable cause for a purpose other than that of bringing alleged offender to justice, and termination of proceedings in favor of accused). Actions for malicious prosecution are generally not favored in the law; this is so because public policy encourages that criminals be brought to justice and citizens be allowed to aid the prosecution without fear of civil suits for damages. Whittaker v. Duke, 473 F. Supp. 908, 912 (S.D.N.Y. 1979), citing Seidel v. Greenberg, 108 N.J. Super. 248, 260 A.2d 863, 868 (Law Div. 1969); Devlin v. Greiner, 147 N.J. Super. 446, 371 A.2d 380, 394 (Law Div. 1977). Some clarification of the standard may be helpful. First, the level of the defendant's involvement in the alleged malicious prosecution may be analyzed by asking whether the wrongful and intentional acts of the defendants were a proximate and efficient cause of the prosecution of the plaintiff.

That we are unable to precisely categorize this tort is of no import, since "[i]t is axiomatic that the simple fact that [a plaintiff's] action does not fit into a nicely defined or established 'cubby-hole' of the law does not in itself warrant the denial of relief to him." (Seidel v. Greenberg, 108 N.J. Super. 248, 256-257, 260 A.2d 863, 868.) Indeed, as Dean Prosser has written: "There is no necessity whatever that a tort have a name.

The County and County Defendants argue the pleadings fail to allege facts sufficient to demonstrate as a matter of law that they initiated the criminal proceedings, and also contend the HCPO's independent investigation and presentation to the grand jury were "intervening and independent acts of law enforcement authorities" that "insulate" them. Seidel v. Greenberg, 108 N.J. Super. 248, 264 (Ch. Div. 1969). DeSapio contends that the complaint only alleged he provided information as requested to the HCPO and that even if true, those allegations are insufficient as a matter of law to prove he initiated the criminal proceedings.

II. Malicious Prosecution by the Bank Defendants Plaintiff contends it was error to grant summary judgment to the bank defendants concerning her claim of malicious prosecution, because those defendants need only have been the "proximate and efficient cause of maliciously putting the law in motion," citing Seidel v. Greenberg, 108 N.J. Super. 248, 258 260 A.2d 863 (Law Div. 1969) (quotation omitted) (emphasis removed). In Seidel, however, it was the defendants' crimes that led to an investigation and eventual criminal prosecution of plaintiff.

In order to sustain the action, it must affirmatively appear . . . that the [defendant] was the proximate and efficient cause of maliciously putting the law in motion, and, if such fact appears, defendant is liable, although he did not actually make or sign the affidavit on which the warrant was issued, or although he was not the prosecutor of record.'" Seidel v. Greenberg, 108 N.J. Super. 248, 257-62 (Sup. Ct. N.J. Dec. 24, 1969)(finding that actual arsonist is liable for malicious prosecution to innocent person unfairly prosecuted; noting that tort law concepts of "cause in fact" and "foreseeability" are relevant to analysis and stating that "rules of causation are more liberally applied" regarding intentional acts). Signing or not signing a complaint "is not alone determinative[,]" Epperson, 373 N.J. Super. at 531.

There are at least two cases holding an innocent person's prosecution or conviction can be proximately caused by, and a foreseeable result of, the actual perpetrator's wrongful criminal conduct.See Purvis v. Hamwi, 828 F. Supp. 1479 (D. Colo. 1993) (malicious prosecution, intentional infliction of emotional distress, and negligence claims); Seidel v. Greenberg, 260 A.2d 863, 876 (N.J.Super.Ct. Law Div. 1969) (malicious prosecution claim). In Purvis, the court held that a person wrongly convicted of murder made a sufficient showing of proximate causation to state claims against the alleged actual perpetrator for malicious prosecution, intentional and negligent infliction of emotional distress, and negligence, because the actual perpetrator was the "but for" cause of prosecution and conviction, and prosecution and conviction were foreseeable results of the crimes.

"A person is considered to have participated in a criminal action against another for the purposes of a malicious prosecution charge if he has taken some `affirmative action by way of advice, encouragement, pressure, etc. in the institution, or causing the institution, of the prosecution or in affirmatively encouraging its continuance after it has been instituted.'" Robinson, 973 F. Super at 473-74 (citing Seidel v. Greenburg, 108 N.J. Super. 248, 257 (Law Div. 1969)); see also Devlin v. Greiner, 147 N.J. Super. 446, 471 (Law Div. 1977). "Mere passive knowledge of, or acquiescence or consent in, the acts of another who causes a prosecution is not sufficient to make one liable" for malicious prosecution. Id. (citing Seidel, 108 N.J. Super. at 257).

In the two cases cited by plaintiff for this rule, the factual circumstances were such that the usual formulation of a malicious prosecution cause of action did not precisely fit the case. See Devlin v. Greiner, 147 N.J.Super. 446, 371 A.2d 380 (Law Div. 1977); Seidel v. Greenberg, 108 N.J.Super. 248, 260 A.2d 863 (Law Div. 1969). In Seidel, the plaintiff had been prosecuted for a crime which the defendants in fact had committed.