[L]iability attaches for civil aiding and abetting if the defendant substantially assists or encourages another's conduct in breaching a duty to a third person.
Dow Chemical Co. v. Mahlum, 114 Nev. 1468, 970 P.2d 98, 113 (1998). [Paraphrased]
Plaintiffs must prove three elements to show Defendant A aided and abetted Defendant B: That Defendant B breached a duty to Plainitff, the result of which injured Plaintiff; That Defendant A knowingly and substantially assisted Defendant B in breaching the duty; and That Defendant A aware of its role in promoting the breach of duty at the time it provided assistance.
Dow Chemical Co. v. Mahlum, 114 Nev. 1468, 970 P.2d 98, 113 (1998) (citing TMJ Implants, 113 F.3d at 1495; Halberstam, 705 F.2d at 477).
Examples of what is abuse of process:
The Nevada Supreme Court upheld a jury award for abuse of process where the respondent's attorney, with knowledge that there was no basis for the claim, brought suit against a physician for medical malpractice with the ulterior purpose of coercing a nuisance claim settlement.Bull v. McCuskey, 96 Nev. 706, 709, 615 P.2d 957, 960 (1980), overruled in part on other grounds by Ace Truck v. Kahn, 103 Nev. 503, 746 P.2d 132 (1987) Here the trial judge found that attempting to force payment of the claim rather than obtaining security for the debt was the ulterior purpose and that attaching all of the respondent's equipment and refusing to release any of it was the willful act not proper in the regular conduct of the proceeding. Nevada Credit Rating Bureau, Inc. v. Williams, 88 Nev. 601, 503 P.2d 9 (1972). The Plaintiff's claim for abuse of process rested on his assertion that the City wrongfully charged him with a criminal violation and then attempted to use the prosecution as a bargaining tool in obtaining a resignation from him. The Nevada Supreme Court held that was sufficient to sustain an abuse of process claim.Posadas v. City of Reno, 109 Nev. 448, 452, 851 P.2d 438, 441-42 (1993).
Examples of what is not abuse of process
Here, the Supreme Court rejected a claim for abuse of process because the plaintiff could not present "specific facts that Redisi had an ulterior purpose in the underlying lawsuit, other than resolving Teleview's legal dispute with LaMantia, and that Redisi willfully and improperly used the legal process to accomplish that purpose". LaMantia v. Redisi, 118 Nev. 27, 30, 38 P.3d 877, 897 (2002). The suit was filed simply because they could not get along with the Acostas and therefore did not want to be tenants in common with them. Secondly, the appellants' failure to dismiss the partition suit after they sold the property involved in the partition action does not constitute willful misuse of legal process. Kovacs v. Acosta, 106 Nev. 57, 787 P.2d 368 (1990) A desire to avoid paying fees for what are, at the time, perceived to be negligent medical services is not an improper motive. There was insufficient evidence to support a finding that appellant filed the malpractice action to coerce a nuisance settlement. Dutt v. Kremp, 844 P.2d 786 (Nev.1992).
The second and third elements should be weighed together, that is, greater evidence supporting the second element requires less evidence of the third element, and vice versa. Dow Chemical Co. v. Mahlum, 114 Nev. 1468, 970 P.2d 98, 113 (1998) (citing TMJ Implants, 113 F.3d at 1495).
The Mahlums argue that if Lepetit had refused to market breast implants without warnings, then Dow Corning would not have been emboldened to continue its supposedly false and misleading representations in the United States. The Mahlums' assertion that Lepetit's lack of protest somehow emboldened Dow Corning, thus providing it with substantial assistance, lacks support in the law. To amount to substantial assistance, such encouragement must take the form of a direct communication, or conduct in close proximity, to the tortfeasor.
See Halberstam, 705 F.2d at 481-82 (suggestive words may be enough to create joint liability when they plant the seeds of action and are spoken by a person in an apparent position of authority). Dow Chemical Co. v. Mahlum, 114 Nev. 1468, 970 P.2d 98, 113 (1998).
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Jared Richards is the managing partner of Richards & Associates, a Nevada law firm focusing on personal injury, business litigation and probate. To learn more about Jared Richards, visit his Google+ Profile or his website.