(concurring in part, dissenting in *64part). I concur with parts II and III of the majority opinion which hold that the plaintiff has failed to state actionable claims under theories of negligence or abuse of process. I dissent from the portion of the majority opinion that requires proof of special injury1 in malicious prosecution cases. I concur with Justice Moody’s result and add the following to explain my disagreement with the analysis employed by the majority in requiring special injury in malicious prosecution cases.
I
The majority concludes that proof of special injury is necessary in order "to limit the circumstances in which an action for the malicious prosecution of civil proceedings can be maintained”. The stated reason for this limitation is not to deter litigants who have meritorious claims from seeking a proper adjudication. The problem with this reasoning arises from the fact that it relies on an incidental effect of the special injury requirement.
Although the majority’s stated concern is to protect meritorious claims, it is nowhere con*65tended in the opinion that the special injury requirement serves to distinguish meritorious from frivolous litigation. Nor is there a contention that special injury cases represent injury that is more egregious than in other cases. The majority’s position is comprehensible only because of an unstated, although correct, premise: most litigation does not involve special injury.
Two noteworthy results follow from using the special injury requirement in such a way. First, in cases in which no special injury can be alleged, the non-special injury caused by the most frivolous malpractice litigation cannot be compensated. Second, assuming, as the majority does that the special injury requirement is important to protect meritorious claimants, such claimants may be deterred from raising meritorious claims in cases where the potential defendants would be able to allege special injury in a subsequent malicious prosecution case. Thus, by invoking the special injury requirement on behalf of meritorious litigants, the meritorious and frivolous claims alike are protected when no special injury can be alleged. Neither is protected when a special injury allegation might be made.
Thus, the arguments that the majority advances in favor of the special injury requirement, in reality, have no basis within the content of the special injury requirement. The same arguments could be advanced as forcefully in favor of abolishing the malicious prosecution action altogether, or even in favor of something so absurd as requiring that all malicious prosecution plaintiffs be from Kansas.
A far more reasonable approach would be to look to other elements of the malicious prosecution cause of action — such as no probable cause and an *66improper motive — to provide the necessary protection for bona fide litigants.
However, reliance on an incidental effect of the special injury requirement is not my only objection to the majority position. My colleagues cloud the issue by such statements as, "The cure for an excess of litigation is not more litigation”. The issue here is not finding a cure for excessive litigation. The issue is whether the harm rendered by wrongful litigation is compensable.
The majority, in responding to Dean Prosser’s criticism of the special injury requirement, wonders whether there are not other means of deterring groundless litigation and whether "if few plaintiffs will recover in the subsequent action, * * * there is any point in recognizing the expanded cause of action”. Further, the majority asserts, "[i]f the subsequent action does not succeed, both parties are left to bear the expenses of two futile lawsuits, and court time has been wasted as well”.
Although this reasoning bears a certain initial attractiveness, it does not withstand closer éxamination. First, for any given tort there probably are means other than a lawsuit for deterring its commission. Second, even if we are able to predict the number of future malicious prosecution plaintiffs who would be successful — which we are not able to do — I do not agree that such a prediction would be pertinent. The argument that because few would be compensated, none should be, is novel. Third, any time that a cause of action is expanded, there is the possibility that future suits seeking to come within its scope will fail. In determining whether a tort cause of action should be expanded, we do not normally find significant the fact that unsuccessful suits may be brought. I do not agree that this *67factor should be given added importance simply because the wrong to be compensated is itself a lawsuit.
II
Central to this case is the judicial process of weighing two different potential harms caused by two different types of groundless litigation, only one of which has been given much consideration by the majority. On the one hand, there is the potential harm which could be caused by groundless malicious prosecution suits. On the other hand, there is the harm caused by all other types of groundless litigation. In upholding the special injury requirement, the majority has engaged in much speculation as to what the effects of groundless malicious prosecution suits might be. Little, if any, consideration is given to the harmful effects of other groundless litigation. The retention of the special injury requirement leaves lawyers, in most cases, free from the concern of defending one type of potentially groundless litigation, but at the expense of subjecting the rest of society to the threat of suffering many kinds of groundless litigation without recompense.
The one-sided treatment is especially apparent with respect to the argument regarding the possible increase of legal malpractice insurance premiums. The other side of the coin is that physician plaintiffs and amici obviously conclude, whether correctly or incorrectly, that their defense of groundless litigation has contributed to the high cost of medical malpractice insurance policies with resultant higher costs to patients. Redress for frivolous litigation, they believe, might provide some relief. The majority, when suggesting that the defense of groundless malicious prosecution *68cases might have some effect on legal malpractice insurance, seems unaware or unconcerned that a different type of groundless litigation may already be having an effect on medical malpractice insurance.
Prediction of how malicious prosecution suits might affect one type of insurance or another is speculative at best. However, one would not expect that the adverse effects of groundless litigation would affect attorneys, or the bringing of lawsuits, to a greater extent than the threat of groundless lawsuits presently affects the rest of our society.
On balance, the effect which malicious prosecution cases without the special injury requirement would have on access to the courts would be less than the effect which other types of groundless litigation has on society. Importantly, the elements of such a malicious prosecution case (lack of probable cause and improper motive) are narrow in scope and not easily met. This narrowness would likely mean that frivolous malicious prosecution cases would more clearly show their frivolous nature than groundless litigation of other varieties. Also, unlike in other cases, attorneys are the ones who must consider what threat, if any, a groundless malicious prosecution suit presents. Certainly, attorneys are in a better position than other members of society to recognize groundless litigation for what it is. Thus, they are in a better position to limit the extent to which the fear of a frivolous malicious prosecution action will affect their conduct.
Also significant in determining the effects of malicious prosecution cases is the fact that in many, if not most, instances the defendant will be an attorney. The majority suggests that many attorneys would likely develop a specialty in this *69type of case and perhaps file them as a matter of course. If the attorneys of this state are such that they will indiscriminately file groundless suits against other attorneys — and we have no reason whatsoever to believe this is true — one would expect that they would be no less hesitant to file groundless lawsuits against members of other professions. Thus, if the majority’s speculation as to this propensity of attorneys is warranted, it seems to argue even more persuasively that the general public needs some sort of effective remedy.
If we are to give substance to DR 7-102(A), subds (1) and (2), which establishes an attorney’s duty to the public not to bring frivolous litigation, a viable malicious prosecution action is necessary.
Ill
In conclusion, this Court’s concern should be for preserving free access to the courts for meritorious claims. The majority, by protecting meritorious and frivolous claims alike, has denied free access to the courts for all those who have suffered harm but no "special injury” from wrongful litigation.
I would affirm the Court of Appeals.
Fitzgerald, J., concurred with Coleman, C.J.Special injury generally includes interference with a person or property, such as through arrest or attachment, or an injury that would not ordinarily result in all similar suits. Jacques v McLaughlin, — RI —; 401 A2d 430 (1979); Schwartz v Schwartz, 366 Ill 247; 8 NE2d 668 (1937); Gem Trading Co, Inc v Cudahy Corp, 92 Wash 2d 956; 603 P2d 828 (1979).
In this case, the plaintiff alleged the following damages:
"[T]he cost of defending the aforesaid cause and the appeal, an increase in his annual malpractice insurance premiums for so long as he practices medicine, the loss of two young associates from his office who could no longer afford to pay the increased malpractice insurance premiums thereby requiring him to work excessive hours without relief, damages to his reputation as a physician and surgeon, embarrassment and continued mental anguish.”
The majority concludes that none of these damages constitute “special injury”.