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Restatement of the Law, Second, Torts
Copyright (c) 1977, The American Law Institute
Case Citations
Rules and Principles
Division 7 - Unjustifiable Litigation
Chapter 31 - Abuse of Process
Restat 2d of Torts, § 682
§ 682 General Principle
One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for
which it is not designed, is subject to liability to the other for harm caused by the abuse of process.
COMMENTS & ILLUSTRATIONS: Comment:
a. The gravamen of the misconduct for which the liability stated in this Section is imposed is not the wrongful
procurement of legal process or the wrongful initiation of criminal or civil proceedings; it is the misuse of process, no
matter how properly obtained, for any purpose other than that which it was designed to accomplish. Therefore, it is
immaterial that the process was properly issued, that it was obtained in the course of proceedings that were brought with
probable cause and for a proper purpose, or even that the proceedings terminated in favor of the person instituting or
initiating them. The subsequent misuse of the process, though properly obtained, constitutes the misconduct for which
the liability is imposed under the rule stated in this Section.
Illustrations:
1. A, the master and owner of a vessel, mortgages it to B, with a stipulation that A shall retain the possession of the
vessel and make voyages in it. In order to compel A to give up the register of his vessel, to which B was not entitled
under the terms of the mortgage, B causes a capias to issue in an action to recover the amount loaned, knowing that A
cannot pay the money or obtain bail. A is arrested under capias and kept in prison until he gives up the register, his lack
of which prevents him from making several profitable voyages. B is subject to liability to A for abuse of process,
although the proceedings have not terminated in A's favor and irrespective of whether B has probable cause for the
action in which the capias was issued.
2. A obtains a judgment against B for a debt owed by him. After the debt has to his knowledge been paid, A takes
out execution on the judgment. A is subject to liability to B for abuse of process.
3. A, an attorney to whom C has entrusted the collection of a debt owed by B, assigns C's claim to D, who resides
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some distance from B. In accordance with A's instructions D brings an action as assignee and causes a subpoena to
issue at a time when it is extremely inconvenient for B to appear, A's purpose being to force B to pay the claim rather
than to undergo the inconvenience of appearance. B not appearing, A causes a bench warrant to issue for his arrest
under which B is fined and execution against his body is ordered. Before this order is carried out, B brings his action
against A. A is subject to liability to B for abuse of process.
b. "Primarily." The significance of this word is that there is no action for abuse of process when the process is
used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit
to the defendant. Thus the entirely justified prosecution of another on a criminal charge, does not become abuse of
process merely because the instigator dislikes the accused and enjoys doing him harm; nor does the instigation of
justified bankruptcy proceedings become abuse of process merely because the instigator hopes to derive benefit from
the closing down of the business of a competitor.
For abuse of process to occur there must be use of the process for an immediate purpose other than that for which it
was designed and intended. The usual case of abuse of process is one of some form of extortion, using the process to
put pressure upon the other to compel him to pay a different debt or to take some other action or refrain from it. See
Illustrations 1, 2 and 3 above.
Illustration:
4. A is a dangerously insane person. B, her son, instigates lunacy proceedings against her, seeking to have her
confined for the protection of herself and others. His motive in doing so is to succeed to the control of her property
after she is committed. This is not abuse of process.
REPORTERS NOTES: This Section has been changed by the addition of the word "primarily." See Comment b.
Illustration 1 is taken from Grainger v. Hill, 4 Bing. N.C. 212, 132 Eng.Rep. 769 (1838).
Illustration 2 is taken from Barnett v. Reed, 51 Pa. 190, 88 Am.Dec. 574 (1865).
Illustration 3 is taken from Dishaw v. Wadleigh, 15 A.D. 205, 44 N.Y.S. 207 (1897).
Illustration 4 is taken from Hauser v. Bartow, 273 N.Y. 370, 7 N.E.2d 268, reargument denied, 274 N.Y. 489, 8
N.E.2d 617.
See, in support of the rule stated: Baker v. Oklahoma Tire & Supply Co., 344 F.Supp. 780 (W.D.Ark.1972; Barquis
v. Merchants Collection Ass'n of Oakland, Inc., 7 Cal.3d 94, 101 Cal. Rptr. 745, 496 P.2d 817 (1972); Aztec Sound
Corp. v. Western States Leasing Co., 32 Colo.App. 248, 510 P.2d 897 (1973); Hodge v. Savannah Office Supply & Bus.
Mach. Co., 114 Ga.App. 307, 151 S.E.2d 193 (1966); Wood v. Graves, 144 Mass. 365, 11 N.E. 567 (1887); McKay
Machine Co. v. Bosway Tube & Steel Corp., 24 Mich.App. 276, 180 N.W.2d 96 (1970); Stafford v. Muster, 582 S.W.2d
670 (Mo.1979); Nevada Credit Rating Bureau v. Williams, 88 Nev. 601, 503 P.2d 9 (1972); Board of Education of
Farmingdale Union Free School Dist. v. Farmingdale Classroom Teachers Ass'n, Inc., 38 N.Y.2d 397, 380 N.Y.S.2d
635, 343 N.E.2d 278 (1975); Abernethy v. Burns, 210 N.C. 636, 188 S.E. 97 (1936); Garland v. Wilson, 289 Pa. 272,
137 A. 266 (1927); Glidewell v. Murray-Lacy & Co., 124 Va. 563, 98 S.E. 665 (1919).
Crux of action is improper use of process after it is issued. Smith v. Nelson, 255 Ark. 641, 501 S.W.2d 769 (1973);
Green v. Mercury Mills, Inc., 136 Ga.App. 504, 221 S.E.2d 646 (1975); Krashes v. White, 275 Md. 549, 341 A.2d 798
(1975); Belt v. Ritter, 18 Mich.App. 495, 171 N.W.2d 581 (1969), affirmed, 385 Mich. 402, 189 N.W.2d 221; State for
the Use and Benefit of Foster v. Turner, 319 So.2d 233 (Miss.1975); Williams v. Williams, 23 N.Y.2d 592, 298 N.Y.S.2d
473, 246 N.E.2d 333 (1969); Goldstein v. Rhode Island Hosp. Trust Nat'l Bank, 110 R.I. 580, 296 A.2d 112 (1972).
Some act or threat directed to an immediate objective not legitimate in the use of the process is required, and the
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defendant is not liable if he has done no more than carry the process to its authorized conclusion, even with bad
intentions. Golden v. Dungan, 20 Cal.App.3d 295, 97 Cal.Rptr. 577 (1971); Varga v. Pareles, 137 Conn. 663, 81 A.2d
112 (1951); Unit, Inc. v. Kentucky Fried Chicken Corp., 304 A.2d 320 (Del.Super.1973); Jacobson v. Thrifty Paper
Boxes, Inc., 230 A.2d 710 (D.C.App.1967); Strickland v. Royal Indem. Co., 230 Ga. 425, 197 S.E.2d 347 (1973);
Holiday Magic, Inc. v. Scott, 4 Ill.App.3d 962, 282 N.E.2d 452 (1972); Brown v. Robertson, 120 Ind.App. 434, 92
N.E.2d 856 (1950); Elliott v. Warwick Stores, 329 Mass. 406, 108 N.E.2d 681 (1952); Davis v. Sequin, 22 Mich.App.
44, 176 N.W.2d 707 (1970); State for the Use and Benefit of Foster v. Turner, 319 So.2d 233 (Miss.1975); ADM Corp.
v. Speedmaster Packaging Corp., 384 F.Supp. 1325 (D.N.J.1974), affirmed in part, cause remanded, 525 F.2d 662 (3
Cir.); Koury v. John Meyer of Norwich, N.C.App. , 261 S.E.2d 217 (1980), petition denied, 299 N.C. 736, 267 S.E.2d
662; Mullins v. Sanders, 189 Va. 624, 54 S.E.2d 116 (1949).
Termination of the proceeding in favor of the plaintiff need not be shown. Grainger v. Hill, 4 Bing.N.C. 212, 132
Eng.Rep. 769 (1838); Tarver v. Household Finance Corp., 291 Ala. 25, 277 So.2d 330 (1973); Baker v. Oklahoma Tire
& Supply Co., 344 F.Supp. 780 (W.D.Ark.1972); Brantley v. Rhodes-Haverty Furniture Co., 131 Ga. 276, 62 S.E.222
(1908); Lambert v. Breton, 127 Me. 510, 144 A. 864 (1929); Sneeden v. Harris, 109 N.C. 349, 13 S.E. 920 (1891);
Simkins Industries v. Fuld & Co., 392 F.Supp. 126 (E.D.Pa.1975); Kool v. Lee, 43 Utah 394, 134 P. 906 (1913); Gem
Trading Co. v. Cudahy Corp., 92 Wash.2d 956, 603 P.2d 828 (1979).
Lack of probable cause for the proceeding need not be shown. Grainger v. Hill, 4 Bing.N.C. 212, 132 Eng.Rep.
769 (1838); Lodges 743 & 1746, Int'l Ass'n of Machinists & Aerospace Workers v. United Aircraft Corp., 534 F.2d 422
(2 Cir. 1975), certiorari denied, 429 U.S. 825, 97 S.Ct. 79, 50 L.Ed.2d 87; Wesko v. G.E.M., Inc., 272 Md. 192, 321 A.2d
529 (1974); Grimestad v. Lofgren, 105 Minn. 286, 117 N.W. 515 (1908); Mayer v. Walter, 64 Pa. 283 (1870); Kool v.
Lee, 43 Utah 394, 134 P. 906 (1913); Glidewell v. Murray-Lacy and Co., 124 Va. 563, 98 S.E. 665 (1919); Gem
Trading Co. v. Cudahy Corp., 92 Wash.2d 956, 603 P.2d 828 (1979).
A spite motive will not be enough for abuse of process when the process is used immediately only for the purpose
for which it was designed and intended. Dorak v. County of Nassau, 445 F.2d 1023 (2 Cir. 1971); Matossian v.
Fahmie, 101 Cal.App.3d 128, 161 Cal.Rptr. 532 (1980); Holiday Magic, Inc. v. Scott, 4 Ill. App.3d 962, 282 N.E.2d 452
(1972); Chain v. International City Bank & Trust Co., 333 F.Supp. 463 (E.D.La.1971); Bartlett v. Christhilf, 69 Md.
219, 14 A. 518 (1888); Bohm v. Holzberg, 47 A.D.2d 764, 365 N.Y.S.2d 262 (1975); Petrou v. Hale, 43 N.C.App. 655,
260 S.E.2d 130 (1979), certiorari denied, 299 N.C. 332, 265 S.E.2d 397; Docter v. Riedel, 96 Wis. 158, 71 N.W. 119
(1897).
What "process" may be the basis of the action? In general: Merritt-Chapman & Scott Corp. v. Elgin Coal, Inc., 358
F.Supp. 17 (E.D.Tenn.1972), affirmed, 477 F.2d 598 (6 Cir.); Barquis v. Merchants Collection Ass'n of Oakland, Inc., 7
Cal.3d 94, 101 Cal.Rptr. 745, 496 P.2d 817, (1972); Jones v. Brockton Public Markets, Inc., 369 Mass. 387, 340 N.E.2d
484 (1975).
Specific acts: Younger v. Solomon, 38 Cal.App.3d 289, 113 Cal. Rptr. 113 (1974) (use of interrogatories); Thornton
v. Rhoden, 245 Cal.App.2d 80, 53 Cal.Rptr. 706 (1966) (notice for deposition); Meadows v. Bakersfield Sav. & Loan
Ass'n, 250 Cal.App.2d 749, 59 Cal.Rptr. 34 (1967) (notice of default and election to sell under deed of trust); Jones
Development, Inc. v. Wilson, 149 Ga.App. 679, 255 S.E.2d 135 (1979) (filing lien).
See Goldoftas, Abuse of Process, 13 Clev-Mar. L.Rev. 163 (1964); Fridman, Abuse of Legal Process, 114 L.J. 335
(1964); Bretz, Abuse of Process -- A Misunderstood Concept, 20 Clev.St.L.Rev. 401 (1971); Note, The Tort of Abuse of
Process, 1 Val.L.Rev. 129 (1967); Note, Torts -- Abuse of Process Defined, 28 Ark.L.Rev. 388 (1974).
CROSS REFERENCES: ALR Annotations:
Validity, construction, and application of state statutes prohibiting abusive or coercive debt collection practices. 87
A.L.R.3d 786.
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Action for breach of contract as basis of action for malicious prosecution or abuse of process. 87 A.L.R.3d 580.
Institution of confessed judgment proceedings as ground of action for abuse of process or malicious prosecution. 87
A.L.R.3d 554.
Medical malpractice countersuits. 84 A.L.R.3d 555.
Recovery of damages for mental anguish, distress, suffering, or the like, in action for wrongful attachment, garnishment,
sequestration or execution. 83 A.L.R.3d 598.
Civil liability of judicial officer for malicious prosecution of abuse of process. 64 A.L.R.3d 1251.
What constitutes malice sufficient to justify an award of punitive damages in action for wrongful attachment or
garnishment. 61 A.L.R.3d 984.
Liability of creditor for excessive attachment or garnishment. 56 A.L.R.3d 493.
Injury to credit standing, reputation, solvency, or profit potential as elements of damage resulting from wrongful
execution against business property. 55 A.L.R.3d 911.
Use of criminal process to collect debt as abuse of process. 27 A.L.R.3d 1202.
What statute of limitations governs action for malicious use of process or abuse of process, in the absence of an express
provision for such tort. 10 A.L.R.3d 533.
When statute of limitations begins to run against action for abuse of process. 1 A.L.R.3d 953.
Posting of redelivery bond by defendant in attachment as waiver of damages for wrongful attachment. 57 A.L.R.2d
1376.
Recovery of value of use of property wrongfully attached. 45 A.L.R.2d 1221.
Power of court to enjoin attorney from prosecuting actions secured through chasers or runners. 14 A.L.R.2d 740.
Validity, construction, and application of §§ 301-307 of Consumer Credit Protection Act (15 U.S.C. §§ 1671-1677)
placing restrictions on garnishment of individual's earnings. 14 A.L.R.Fed. 447.
Digest System Key Numbers:
Process 168
Legal Topics:
For related research and practice materials, see the following legal topics:
TortsIntentional TortsAbuse of ProcessElements
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