## Facts

- A Nordstrom security officer detained a shoplifting suspect who possessed Lisa Banks’s driver’s license; the suspect was processed under Lisa Banks’s name, though Lisa was not present.
- Nordstrom’s civil-claims manager sent a restitution demand to Lisa, and Lisa was notified she would be arraigned on a first-degree theft charge.
- Before arraignment, Lisa met with the security officer, who concluded Lisa was not the detained person and provided a letter stating Lisa was not the shoplifter; the officer contacted law enforcement about the mistake.
- The criminal charge was not dismissed, and Lisa was arraigned and booked; a further hearing was scheduled.
- Lisa retained counsel; Nordstrom’s security manager later acknowledged he had not contacted the prosecutor about the misidentification.
- After receiving counsel’s letter, Nordstrom’s civil-claims manager sent the prosecutor a notarized statement confirming Lisa was not the shoplifter; the charge was dismissed shortly before the next hearing.
- Lisa sued Nordstrom and employees for malicious prosecution (and related damages). Nordstrom obtained summary judgment based in part on an affidavit asserting a merchant’s involvement ends at arrest and it cannot prevent arraignment.

## Issues

1. Whether a private merchant can be liable for malicious prosecution for “continuing” criminal proceedings after learning its initial identification was wrong.
2. Whether evidence of Nordstrom’s knowledge of misidentification and alleged delay or inaction created genuine issues of material fact on lack of probable cause and malice, precluding summary judgment.

## Decision

- The appellate court reversed summary judgment for Nordstrom and remanded.
- The record permitted competing inferences on whether Nordstrom’s post-identification conduct could be found to have continued or instigated the prosecution.
- Viewing evidence and inferences favorably to Banks, a jury could find Nordstrom knew Banks was innocent yet failed to take timely, reasonable steps to correct the mistake before the arraignment and subsequent proceedings.

## Legal Principles

- Malicious prosecution may be shown where a defendant initiates, instigates, or continues criminal proceedings without probable cause, with malice, the proceedings terminate in the plaintiff’s favor, and damages result.
- A private party’s potential liability is not limited to starting a case; it may extend to conduct that effectively continues a prosecution, including failing to correct materially false information once the party knows it is false.
- Lack of probable cause and malice may be inferred from circumstances when a defendant, after learning the accused is not the offender, persists in conduct that foreseeably allows prosecution to proceed.
- Summary judgment is improper when reasonable factfinders could differ on whether the private party’s conduct contributed to continuation of the prosecution and whether the elements of malicious prosecution are met.

## Conclusion

The court held that Banks presented sufficient evidence for a jury to decide whether Nordstrom, after learning she was misidentified, continued the prosecution through delay or inadequate corrective action; summary judgment was therefore reversed and the case remanded.


Banks v. Nordstrom, Inc., 57 Wn. App. 251, 787 P.2d 953 (Wash. Ct. App. 1990)