The following section from Day on Torts Leading Cases in Tennessee Tort Law​​​ is out of date and should not be used. It remains a part of this site for historical purposes only. An updated version of the book is available by subscription at (Additional information below.)

§46.6 Without Probable Cause

The Case: Roberts v. Federal Exp. Corp. , 842 S.W.2d 246 (Tenn. 1992).

The Basic Facts: While working for the defendant, Federal Express Corporation, as a maintenance mechanic and monitoring the defendant's security cameras, the plaintiff discovered a gold ring, an aerosol can, a videotape, silver spoon, chocolate candy and dildo on the defendant's premises. The plaintiff took possession of the items. He allegedly forgot to turn them in to the defendant because he was on pain medication, which caused him to be disoriented. Upon passing through security as he was exiting the premises at the end of his shift, the items were discovered. The defendant swore out a warrant charging the plaintiff with grand larceny. The grand jury later returned a no true bill. The plaintiff then brought an action for malicious prosecution, which was dismissed on summary judgment based on the trial court's finding that the defendant had probable cause to institute the criminal proceedings. The finding was made in conformance with existing precedent mandating that probable cause is a question of law for the court. The Court of Appeals affirmed the finding of the trial court.

The Bottom Line:

  • "Probable cause is established where 'facts and circumstances [are] sufficient to lead an ordinarily prudent person to believe the accused was guilty of the crime charged.' See Logan v. Kuhn's Big K Corp., 676 S.W.2d 948, 951 (Tenn. 1984); Lewis v. Williams, 618 S.W.2d 299, 303 (Tenn. 1981). However, this Court has also stated that '[t]he prosecutor must in good faith have honestly believed the accused was guilty of the crime charged.' See Logan, 676 S.W.2d at 951; Lewis, 618 S.W.2d at 303. We now conclude that the existence of probable cause does not depend on the subjective mental state of the prosecutor." 842 S.W.2d at 248.
  • "A malicious prosecution is one brought in the absence of probable cause, and with malice. These two elements are distinct. Whereas malice concerns the subjective mental state of the prosecutor, appraisal of probable cause necessitates an objective determination of the reasonableness of the prosecutor's conduct in light of the surrounding facts and circumstances." Id.
  • "Properly defined, probable cause requires only the existence of such facts and circumstances sufficient to excite in a reasonable mind the belief that the accused is guilty of the crime charged. While a mind 'beclouded by prejudice, passion, hate and malice' is not 'reasonable,' see Poster v. Andrews, [194 S.W.2d 337, 341 (Tenn. 1946)], the question whether a particular prosecutor is so motivated goes only to the element of malice. Probable cause is to be determined solely from an objective examination of the surrounding facts and circumstances." Id .
  • "The existence of probable cause has long been characterized as a mixed question of law and fact:
    The facts from which probable cause is to be deduced are to be found by the jury; the deduction, as a matter of law, is to be made by the court. The rule by which the court determines whether there is probable cause or not, is to look at the facts as found by the jury, and from these determine whether a reasonable man, in view of the facts so found, would have instituted the suit.
    Memphis Gayoso Gas Co v. Williamson , 56 Tenn. 314, 343 (1872). The ultimate determination is thus taken from the jury, even though 'the existence of probable cause, which involves only the conduct of a reasonable man under the circumstances, . . . does not differ essentially from the determination of negligence.' [W. Keeton, Prosser and Keeton on the Law of Torts, § 119, at 882 (5th ed. 1984)]." Id.
  • Other Sources of Note: Lantroop v. Moreland , 849 S.W.2d 793 (Tenn. Ct. App. 1992) (holding that with regard to probable cause, the jury should consider whether the facts and circumstances known to the defendant at the time he or she initiated the judicial proceeding would have led an ordinary prudent person to believe the person accused was guilty of the crime charged).

    Recent Cases: 

    Sanford v. Waugh , No. M2007-02528-COA-R3-CV, 2009 WL 1910957 (Tenn. Ct. App. Jun. 30, 2009) (upholding jury verdict on malicious prosecution claim finding it was reasonable for the jury to conclude there was no probable cause and therefore it was permissible for the jury to infer malice); Cornett v. Burton, No. M2007-02422-COA-R3-CV, 2008 WL 4998396 (Tenn. Ct. App. Nov. 24, 2008) (vacating directed verdict finding reasonable minds could differ on element of probable cause).

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

The book is now available electronically by subscription at The new format allows us to keep the book current as new opinions are released. BirdDog Law also has John's Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Statutes available by subscription, as well as multiple free resources to help Tennessee lawyers serve their clients

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