13-1631.         Definition and elements of prima facie tort.

            Plaintiff claims damages on the basis that defendant intended to cause plaintiff harm and succeeded in doing so. In order to recover damages from defendant on this claim, plaintiff must show:

            1.         That defendant intentionally [did some act] [failed to act];

            2.         That defendant intended that the [act] [failure to act] would cause harm to the plaintiff or that defendant knew with certainty that the [act] [failure to act] would cause harm to the plaintiff;

            3.         That the defendant's [act] [failure to act] was a cause of plaintiff's harm; and

            4.         That defendant's conduct was not justifiable under all the circumstances.

DIRECTIONS FOR USE

            This instruction should be given together with UJI 13-1631A NMRA where justification is offered by the defendant and put into issue.

COMMITTEE COMMENTS

            The Supreme Court recognized the "prima facie tort" as part of New Mexico's common law in Schmitz v. Smentowski, 109 N.M. 386, 785 P.2d 726 (1990). In that decision, the Court viewed more favorably the "flexible" approach of the Restatement (Second) of Torts, Section 870 and the Missouri courts, see Porter v. Crawford & Co., 611 S.W.2d 265 (Mo. Ct. App. 1980) than the more restrictive approach characterized by the New York precedents. See Note, Prima Facie Tort, 11 Cumb. L. Rev. 113, 116-18 (1980). Thus, the Smentowski Court rejected such restrictions on the prima facie tort (1) as proof of "special damages", (2) "disinterested malevolence", or (3) that the conduct complained of not fit into any other tort category.

            A count in prima facie tort may be pled in the alternative with other tort counts. At the close of the evidence, however, if plaintiff's proof is susceptible to submission under one of the traditional categories of tort, the action must be submitted to the jury on that cause and not under prima facie tort. Smentowski, 109 N.M. at 396.

            It is not necessary in order to establish the prima facie tort that the defendant's motivation be solely to harm the plaintiff. Smentowski, 109 N.M. at 395. The plaintiff must show that the defendant acted with an intent to harm the plaintiff or with knowledge that its act would be certain to cause harm to the plaintiff. Smentowski, 109 N.M. at 395.

            See Restatement (Second) of Torts Sections 871 and 871A for examples of particular types of harm which may result in liability under the prima facie tort.