(concurring in part, dissenting in part)—I agree with the majority that the trial court properly entered summary judgment on Banks' claims for outrage, invasion of privacy, negligent hiring or supervision, and *265violations of the Consumer Protection Act. I disagree, however, with the majority's conclusion that material factual issues remain regarding her claim for malicious prosecution, and I therefore dissent from that portion of the opinion.
It is undisputed that the basis for Banks' claim of malicious prosecution is not the institution of the prosecution, which was clearly based upon probable cáuse, but rather Nordstrom's alleged malicious continuation of the prosecution between January 6, 1988, when Nordstrom became aware of the misidentification, and January 22, 1988, when the prosecution was dismissed. There is absolutely no evidence to support an inference that Nordstrom took any action in furtherance of the prosecution during this period. In fact, the uncontroverted evidence is that upon confirming that Banks was not the individual arrested on December 26, 1987, Gail Smith, a Nordstrom security officer, gave Banks a handwritten note on Nordstrom stationery dated January 6, 1988, stating that Banks was not the same woman who was arrested on December 26, 1987. For some inexplicable reason Banks did not show this document to any of the prosecuting authorities; nothing in the record indicates that she showed it to anyone at the arraignment or even raised the issue of the erroneous identification. Smith also filed an affidavit stating that she called "Detective Corbett" of the Seattle Police Department and told him that Banks was not the woman arrested on December 26, 1987. This statement, although uncorroborated, is not contradicted. The majority suggests that because Nordstrom arguably could have done more between January 6 and January 22, 1988, to obtain dismissal of the proceedings, it can be inferred that Nord-strom somehow continued the prosecution.
Contrary to the majority's assertion, potential liability under the circumstances presented by this record is not recognized by the Restatement (Second) of Torts § 655 (1977).
A private person who takes an active part in continuing or procuring the continuation of criminal proceedings initiated by *266himself or by another is subject to the same liability for malicious prosecution as if he had then initiated the proceedings.
For liability to attach under the authority of this provision, an individual must take an active part in continuing or procuring the continuation of criminal proceedings initiated by himself or by another. The comments and illustration to section 655 repeatedly stress that liability for malicious prosecution depends upon the defendant taking some active role in the continuation of the prosecution; it is not enough that, the defendant simply remain passive, even where the defendant possesses knowledge that the accused is innocent:
b. The rule stated in this Section applies when the defendant has himself initiated criminal proceedings against another or procured their institution, upon probable cause and for a proper purpose, and thereafter takes an active part in pressing the proceedings after he has discovered that there is no probable cause for them. . . .
Illustration:
1. A, by swearing out a complaint, initiates the criminal prosecution of B for theft of A's watch. Before trial A discovers that the watch was not stolen and he had merely mislaid it. He informs C of his discovery. For the purpose of compelling B to pay a debt owed to C, C persuades the prosecuting attorney to proceed with the trial. C is subject to liability to B for malicious prosecution.
c. Active participation required. In order that there may be liability under the rule stated in this Section, the defendant must take an active part in their prosecution after learning that there is no probable cause for believing the accused guilty. It is not enough that he appears as a witness against the accused either under subpoena or voluntarily, and thereby aids in the prosecution of the charges which he knows to be groundless. His share in continuing the prosecution must be active, as by insisting upon or urging further prosecution. The fact that he initiated the proceedings does not make him liable under the rule stated in this Section merely because he intentionally refrains from informing a public prosecutor, into whose control the prosecution has passed, of subsequently discovered facts that clearly indicate the innocence of the accused, even though they have the effect of convincing him that this is the fact.
Restatement (Second) of Torts § 655, comments b, c (1977).
*267It is not necessary to determine if this court should follow comment c to section 655 of the Restatement (Second) of Torts to the extent that the comment suggests that Nordstrom had no duty to inform the prosecutor once it learned of the mistake. The restatement rule is clear that active participation in continuing the prosecution is required. In the record before us, Nordstrom did not in any sense actively participate in causing the continuation of this prosecution. Not only did Nordstrom not actively participate in the continuation of the prosecution, Nordstrom took affirmative steps to communicate to the authorities that there had been a misidentification. Moreover, in addition to the absence of any evidence of active participation, there is absolutely no evidence supporting any inference of malice. The majority suggests that because the criminal proceedings were dismissed in plaintiff's favor, that alone is sufficient to raise an inference of malice. The authorities relied upon by the majority do not support this proposition. In fact, as stated in Peasley v. Puget Sound Tug & Barge Co., 13 Wn.2d 485, 502, 125 P.2d 681 (1942).
[mjalice as a term of law has a broader significance than that which is applied to it in ordinary parlance. The word "malice" may simply denote ill will, spite, personal hatred, or vindictive motives according to the popular conception, but in its legal significance it includes something more. It takes on a more general meaning, so that the requirement that malice be shown as part of the plaintiff's case in an action for malicious prosecution may be satisfied by proving that the prosecution complained of was Undertaken from improper or wrongful motives or in reckless disregard of the rights of the plaintiff. Impropriety of motive may be established in cases of this sort by proof that the defendant instituted the criminal proceedings against the plaintiff: (1) without believing him to be guilty, or (2) primarily because of hostility or ill will toward him, or (3) for the purpose of obtaining a private advantage as against him. Newell, Malicious Prosecution (1892), 237, § 3; 34 Am. Jur. 728, Malicious Prosecution, § 45; 38 C. J. 421-425, Malicious Prosecution, §§ 60-67; 3 Restatement, Torts (1938), § 668. We have recognized and applied this broader conception of the term in Waring v. Hudspeth, [75 Wash. 534, 135 P. 222 (1913)]. Compare Ladd v. Miles, [171 Wash. 44, 17 P.2d 875 (1932)].
*268In the instant case, the prosecution was not undertaken for "improper or wrongful motives", and there is absolutely nothing to suggest that Nordstrom took any action in furtherance of this prosecution in "reckless disregard of the rights of the plaintiff." Furthermore, actions for malicious prosecution are not favored in law and will be, readily upheld only upon presentation of the proper elements. Peasley, at 496. For the reasons stated, I would affirm the summary judgment dismissal of Banks' claim for malicious prosecution.
Reconsideration denied April 30, 1990.
Review denied at 115 Wn.2d 1008 (1990).