Bexis has been an active member of the American Law Institute (“ALI”), particularly concerning the ALI’s ongoing projects involving the Third Restatement of Torts. Thus, regular blog subscribers have read about his adventures attempting to dissuade the law professors who draft these projects from pursuing their natural biases towards always increasing liability (more liability = more litigation = more demand for lawyers = secure jobs for law professors), particularly, but not exclusively, as it affects prescription medical product liability litigation.
Here we go again. In a project euphemistically called “Restatement of the Law Third Torts: Concluding Provisions, the first Preliminary Draft has proposed a variety of changes to the law that did not fit into prior Third Restatement of Torts Projects. Many of them would significantly increase liability (physicians to non-patients, informed consent including anything a patient wants to know, medical monitoring, non-marital loss of consortium), but the one that hits closest to home is the proposal to do away with the “wrongful acts doctrine” – also known as “in pari delicto” or the “wrongful conduct rule” – and simply replace it with “comparative fault.”
The black letter proposals are twofold:
4A Wrongful Acts Doctrine
A person injured by another’s tortious conduct is not barred from recovery merely because the person was engaged in illegal, tortious, or otherwise wrongful act [sic] at the time of suffering harm.
Preliminary Draft #1 at 155, lines 1-4. Ostensibly, this provision “carries forward” a principle from Restatement (Second) of Torts §889 (1979): “One is not barred from recovery . . . merely because at the time of the [tort] he or she was committing a tort or a crime.” Id. at lines 6-9.
In fact, though, this section makes a big change. It eliminates a critical comment to §889, which stated:
[I]f the injured person has violated a statute designed to prevent a certain type of risk, he is barred from recovery for harm caused by violation of the statute if, but only if, the harm resulted from a risk of the type against which the statute was intended to give protection.
Restatement (Second) of Torts §889, comment b (1979). See Preliminary Draft at 158, comment a. This comment encapsulates the modern Wrongful Acts Doctrine (in this post we use the draft’s name for the relevant legal principle).
Instead of persons actively (as opposed to coincidentally) engaged in criminal activity being “barred from recovery,” this new draft would let everybody sue, subject only to comparative fault:
4B Criminal Conduct and Other Statutory Wrongs as Contributory Negligence Per Se
A victim is negligent if, without excuse, the victim violates a criminal statute or other type of regulatory safety provision designed to protect against the type of accident caused by the injured person’s conduct and if the victim is within the class of persons the statute is designed to protect.
If the negligence in Subsection (a) is a factual cause of the victim’s harm, the effect of that negligence on the victim’s recovery is as provided in Restatement Third of Torts: Apportionment of Liability §7. Otherwise the victim’s negligence has no effect on recovery.
Preliminary Draft at 157, line 35 to 158, line 6. There is also a part (c), but it is facially inapplicable to criminal behavior. Apportionment §7 is the general restatement provision for comparative fault.
The excuse given for abolishing the Wrongful Acts Doctrine as it currently exists is the widespread adoption of comparative fault. Preliminary Draft at 158, lines 26-27 (“Comment b is inconsistent with the widespread adoption of comparative responsibility”).
However, §889, Comment b’s complete bar is inconsistent with comparative fault – which has been accepted by the vast majority of states – and the latter’s application requires the former’s modification. This section provides that a plaintiff’s illegal conduct . . . may constitute negligence, but the role that negligence plays is provided by the applicable rules for plaintiff negligence.
Section 4B, comment c, page 160, lines 22-26 (emphasis added).
Therein lies the rub. This supposed “Restatement” seeks to eliminate a widely recognized doctrine that courts repeatedly describe as “well-settled” because criminality should supposedly be treated no different than negligence. We disagree. As a legal matter, there is no reason to equate criminality with negligence. Indeed, on the question of apportionment and intentional conduct, the ALI does just the opposite – ordinarily a plaintiff’s comparative negligence is not compared against a defendant’s intentional conduct. Counsel Draft No. 6, Restatement of the Law Third Torts: Intentional Torts to Persons §50(a) (ALI Sept. 20, 2019). If mere “intentional” conduct does not equal negligence for apportionment purposes, then a fortiori conduct that is actually criminal should not be so equated. To use the ALI’s language, if “an intentional tort is ordinarily a particularly serious wrong” and should not be apportioned against negligence, and “negligent and intentional acts are different in kind, not merely in degree,” id. at §50(a), comment c, then an act that is subject to the sanction of the criminal law is an even more “serious wrong” and “different in kind” from negligence.
That leads to the jurisprudential, or “policy,” justification for the Wrongful Acts Doctrine. Courts are not the only arbiters of wrongful conduct. In the case of criminal behavior, the people, acting through their elected representatives, have (rightly or wrongly) determined that various types of conduct are criminal in nature, subjecting the wrongdoer, not just to civil damages but to criminal sanctions, such as imprisonment. That legislative determination by a co-equal branch of government renders criminal acts “different in kind” from mere negligence, which the legislative branch has not so prohibited. We believe that it is bad policy, and worse jurisprudence, for the common law to set itself against decisions made by the legislative branch of government that certain conduct is determined to be criminal. ALI should not be equating legal with illegal conduct for purposes of the common law.
Because, overwhelmingly, the common law itself does not.
Of the many states that have adopted comparative fault by statute, only one expressly includes criminal activity as comparative fault. See Mass. Gen. Laws ch. 231, §85. Nonetheless, Massachusetts still follows the Wrongful Acts Doctrine. See Ryan v. Hughes-Ortiz, 959 N.E.2d 1000, 1004 (Mass. App. 2012) (recovery for gunshot injuries barred where decedent had attempted to steal the gun; “public policy dictates that [plaintiff’s] criminal conduct acts as a bar to recovery”); Driscoll v. Board of Trustees of Milton Academy, 873 N.E.2d 1177, 1184-85 (Mass. App. 2007) (plaintiff who committed statutory rape violated both law and “social values and customs” and “may not recover in tort against the [defendant] for his own sexual misconduct”).
By contrast, the drafters of this “restatement” admit that their “criminality is only negligence” rule is directly contrary to statutory provisions in eight states. Preliminary Draft #1, Reporters’ Notes to §4B, comment j, page 178. Presumably the comparative fault regimes of the other states (barring a couple that do not recognize comparative fault at all) are silent – but the existing 8-1 margin against equating criminality and negligence for purposes of comparative fault hardly provides license for judges (or law professors) to make up new rules at variance with accepted doctrines. To the contrary, to the extent that legislative silence has any bearing at all, it tends to indicate acquiescence in existing law. E.g., Kucana v. Holder, 558 U.S. 233, 250 (2010) (“From the Legislature’s silence . . . we take it that Congress left the matter where it was pre-[enactment]”). What this draft seeks to do to the Wrongful Acts Doctrine, “[i]nferring repeal from legislative silence” in comparative fault statutes, “is hazardous at best.” Cook County, Illinois v. United States, 538 U.S. 119, 132 (2003). The position taken in this draft is particularly “hazardous” in the context of what purports to be a Restatement, since the Wrongful Acts Doctrine is a well-accepted and widely followed rule of law backed by valid jurisprudential policies – even if the reporters happen to disagree with them. The Wrongful Acts Doctrine typically arises in a number of recurrent fact patterns.
Scenario 1: We see this doctrine in action frequently in prescription drug litigation because our society has chosen to criminalize many aspects of the possession and use of various drugs, which are for that reason known as “controlled substances.” Drug addicts routinely break these laws, and often overdose or otherwise injure themselves in so doing. When they (or their estates) nonetheless seek to sue over injuries caused by their own criminal acts, the Wrongful Acts Doctrine is frequently invoked to put an end to such litigation.
Perhaps the leading case for the Wrongful Acts Doctrine in prescription drug arena is Orzel v. Scott Drug Co., 537 N.W.2d 208 (Mich. 1995). The facts are typical of such cases: the plaintiff had procured multiple prescriptions from different doctors for the defendant’s drug, and also had been buying it from drug pushers. Not surprisingly the plaintiff overdosed – and then sued. The court invoked the wrongful conduct rule to put the plaintiff out of court:
[T]he wrongful-conduct rule [is] rooted in the public policy that courts should not lend their aid to a plaintiff who founded his cause of action on his own illegal conduct. If courts chose to regularly give their aid under such circumstances, several unacceptable consequences would result. First, by making relief potentially available for wrongdoers, courts in effect would condone and encourage illegal conduct. Second, some wrongdoers would be able to receive a profit or compensation as a result of their illegal acts. Third, and related to the two previously mentioned results, the public would view the legal system as a mockery of justice.
Id. at 213 (emphasis added). Orzel was decided well after Michigan had adopted comparative fault, see Placek v. City of Sterling Heights, 275 N.W.2d 511, 520 (Mich. 1979), so that excuse has no bearing. Indeed, Errett v. A Forever Recovery, Inc., 2017 WL 2348723, at *5-6 (Mich. App. May 30, 2017), rejected argument that comparative fault “abrogated” Wrongful Acts Doctrine. “[C]odification of comparative negligence did not “eliminate or diminish” preexisting defenses or immunities.” Id. at *6.
We will not construe a statute to abrogate established common-law principles by implication. . . . When the Legislature enacted the statutes relevant to comparative negligence, it knew that the common-law wrongful-conduct rule was firmly embedded in [state] jurisprudence. . . . [N]othing in the language of the statutes clearly indicates the Legislature’s intent to modify or nullify the wrongful-conduct rule.
Id. (numerous citations omitted).
Orzel identified valid jurisprudential reasons for keeping criminals from being tort plaintiffs: not “condoning” criminality, not allowing wrongdoers to “profit” from their misdeeds, and avoiding a “mockery of justice.” There is nothing wrong with the ALI’s reporters following a different philosophy, but they should not use a “Restatement” to bend the common law to their will. Where, as here, a rule of law continues to be followed by a great majority of judicial decisions, academic desire to allow tort recoveries by criminal plaintiffs, or to include all conduct in some grand scheme of “comparative fault,” should not be a basis abandonment of a “firmly embedded” majority rule. The law is not always a neat package.
Indeed, the immediate trigger for us writing this post at this time was a brand new appellate decision from Bexis’ home state adopting the Wrongful Acts Doctrine. In Albert v. Sheeley’s Drug Store, Inc., ___ A.3d ___, 2020 WL 3529425 (Pa. Super. June 30, 2020), the plaintiff’s decedent overdosed after he and a friend conspired to have a relative’s prescription filled without that relative’s knowledge. Id. at *1. The defendant pharmacy raised in pari delicto as a defense, id. at *2, and the court unanimously affirmed dismissal:
No court will lend its aid to a man who grounds his actions upon an immoral or illegal act. By participating in the scheme to obtain the [drug], and by illegally possessing the [drug] . . ., the Decedent was an active, voluntary participant in the wrongful conduct . . . for which [he] seeks redress and bears substantially equal or greater responsibility for the underlying illegality.
Id. at *3 (citations and quotation marks omitted). Although Pennsylvania law had not before applied the doctrine in this type of case, recent precedents from other states doing so were persuasive.
We are not aware of any Pennsylvania decision where a court has dismissed a tort action with facts similar to this case concerning the use of ill-gotten drugs . . . under the in pari delicto doctrine. Other jurisdictions, however, have applied the in pari delicto rule (or similar doctrines) to bar claims analogous to the claim brought here.
Id. In addition to Orzel, Albert cited Price v. Perdue Pharma Co., 920 So.2d 479 (Miss. 2006); Kaminer v. Eckerd Corp., 966 So.2d 452 (Fla. App. 2007); Pappas v. Clark, 494 N.W.2d 245 (Iowa App. 1992); Inge v. McClelland, 725 F. Appx. 634 (10th Cir. 2018) (applying New Mexico law); Foister v. Purdue Pharma, L.P., 295 F. Supp.2d 693 (E.D. Ky. 2003).
These cases are as good as anyplace to start. In Price a drug addict claimed addiction as his injury in suing multiple defendants, including health care providers and a drug manufacturer. 920 So.2d at 481. The law, however, held him responsible for his own criminal actions, declaring that “[n]o Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.” Id. at 484 (citation and quotation marks omitted).
Before today, we have not been confronted with a case factually similar to today’s case, where a claimant’s case is based in his attempt to obtain a controlled substance through his own malfeasance. . . . We now join those jurisdictions in holding that “the wrongful conduct rule” . . . prevents a plaintiff from suing caregivers, pharmacies, and pharmaceutical companies and laboratories for addiction to a controlled substance which he obtained through his own fraud, deception, and subterfuge. This Court will not lend aid to a party whose cause of action directly results from an immoral or an illegal act committed by that party.
Id. at 486 (citations omitted).
In Kaminer, the decedent died after taking a drug that he knowingly received as stolen property. 966 So.2d at 453. Nonetheless, he sued the pharmacy from which the drug had been stolen. The court drew back from the “ramifications of holding [the pharmacy] liable” and would “not allow a wrongdoer to recover for injuring himself.” Id. at 454. The Kaminer court quoted and followed the passage, above, from Orzel and held that “Florida follows this rule.” Id.
The drug addict plaintiff’s theory in Pappas was that the defendant pharmacy should have warned other pharmacies about plaintiff’s own attempts to fill multiple fraudulent prescriptions. 494 N.W.2d at 246. The case fell right into the sweet spot of the Wrongful Acts Doctrine. The “claims are barred by the public policy of the State of Iowa which generally denies relief to those injured in whole or in part because of their own illegal acts.” Id. at 247. Pappas “recognized the policy” stated by the state’s supreme court in non-drug case involving a plaintiff suing over not being stopped from committing murder:
The general rule is: that a person cannot maintain an action if, in order to establish his cause of action, he must rely, in whole or in part, on an illegal or immoral act or transaction to which he is a party, or to maintain a claim for damages based on his own wrong or caused by his own neglect, . . . or where he must base his cause of action, in whole or in part, on a violation by himself of the criminal or penal laws.
Id. (quoting Cole v. Taylor, 301 N.W.2d 766, 768 (Iowa 1981)).
We blogged about Inge when the district court first applied New Mexico’s ”wrongful conduct rule” (another of the doctrine’s multiple names) to bar claims concerning an overdosed addict who hatched a scheme to share drugs obtained via fake prescriptions with the unethical pharmacy employee who filled them.
It is a well settled rule of law that a person cannot maintain an action if, in order to establish his cause of action, he must rely, in whole or in part, on an illegal or immoral act or transaction to which he is a party, or where he must base his cause of action, in whole or in part, on a violation by himself of the criminal or penal laws. The public policy behind this rule is that a court should not lend its aid to a man who founds his cause of action upon an immoral or illegal act.
725 F. Appx. at 638 (citations and quotation marks omitted). Inge built on Romero v. United States, 658 F. Appx. 376 (10th Cir. 2016) (applying New Mexico law), which applied the Wrongful Acts Doctrine where “illegal use of crack cocaine was an integral and essential part of [plaintiff’s] case.” Id. at 380. The Court of Appeals also flatly rejected an argument that the Rule was “an anachronism” given comparative fault. “Here, [plaintiff’s] damages undoubtedly arose when he engaged in illegal conduct.” Id. “[A]s [a prior] decision makes clear, the wrongful-conduct rule is not inherently incompatible with a comparative fault framework” because the rule simply holds that a criminal “cannot ‘profit’ from his own illegal conduct.” Id.
In Foister seven Kentucky plaintiffs – all persons who abused the same drug for its mind-altering characteristics – suffered the same fate:
Kentucky . . . public policy . . . den[ies] recovery for illegal acts, [so] the seven plaintiffs that procured and used [a prescription drug] illegally may not recover in this action. . . . Because they must inevitably rely on their illegal actions to establish their claims, their claims should be denied in the first instance.
295 F. Supp.2d at 705.
Recovery for a decedent’s drug overdose was denied for reasons of “public policy” in Gentile v. Malenick, 112 N.Y.S.3d 364, 365 (N.Y.A.D. 2019).
[D]ecedent’s death was the result of her ingestion of heroin and several prescription drugs, which unquestionably constitutes serious criminal conduct. . . . defendant established that the [wrongful acts] rule bars recovery. The central issue is not that of the statute prohibiting drug use, itself the object of a changing legislative view, but of the paramount public policy imperative that the law, whatever its content at a given time or for however limited a period, be obeyed.
Id. (citations and quotation marks omitted). Similarly, under New York law, an addict could not sue the manufacturer of stolen drugs he used while in prison:
[Plaintiff] has admitted that he obtained pills from other prisoners who had “mouthed” drugs in the medical center. [Plaintiff] also admits deliberately exceeding the recommended dosage. Because [plaintiff] obtained and used [defendants’ drug] illegally, the Complaint against the Defendants is dismissed.
Alston v. Caraco Pharmaceutical, Inc., 670 F. Supp.2d 279, 287 (S.D.N.Y. 2009) (citations omitted).
The Wrongful Acts Doctrine arose in a slightly different context in Sorrentino v. Barr Laboratories, Inc., 397 F. Supp.2d 418 (W.D.N.Y. 2005), aff’d, 218 Fed. Appx. 7 (2d Cir. 2007). There the plaintiff had murdered his wife and attempted to blame his conduct on the defendant’s drug. Again, the ruling was that the plaintiff could not recover for the consequences of his own illegal act:
[P]laintiff is barred from seeking damages stemming from his wife’s death, under New York’s public policy against allowing individuals to profit from their own wrongdoing. Plaintiff states that . . . there were two victims that night of the murder, (my wife and myself). That may be his sincere belief, but a criminal jury found otherwise. Under New York public policy, therefore, this action must be dismissed,
Id. at 422-23 (citation and quotation marks omitted). In affirming, the appellate court likewise held “public policy bars this lawsuit” due to plaintiff’s “knowing and intentional participation in a criminal act.” Sorrentino v. Barr Laboratories, 218 F. Appx. 7, 8 (2d Cir. 2007) (citation and quotation marks omitted).
A somewhat similar situation arose in Patten v. Raddatz, 895 P.2d 633 (Mont. 1995), where the plaintiff and her (ahem) “sugar daddy’s” family engaged in suits and countersuits. The Wrongful Acts Doctrine applied to, and dispatched, the entire den of iniquity:
Montana Law, as a matter of public policy, strongly condemns prostitution as herein described as well as the illegal use of drugs in the course of such prostitution; and, therefore, conclude that participation in such conduct bars recovery by [cross-plaintiff]. In addition, we conclude that the delinquency of both parties is sufficiently comparable to bar recovery in negligence by either party under the doctrine of in pari delicto.
Id. at 637-38. A pox on both your criminal houses.
Scenario 2: A similar, albeit non-drug-related, claim fell to the Wrongful Acts Doctrine in Greenwald v. Van Handel, 88 A.3d 467 (Conn. 2014). Instead of a criminal plaintiff trying to recover from someone for being arrested for drugs, the plaintiff in Greenwald tried to blame his psychiatrist for not keeping him from being arrested for possession of kiddie porn.
This court has recognized the common-law maxims that ]o one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. These maxims are dictated by public policy, [and] have their foundation in universal law administered in all civilized countries. . . . [W]e have never considered whether such principles apply to negligence actions generally. . . . Many of our sister states, however, have extended these principles to tort actions. The generally articulated common-law “wrongful conduct” rule in these jurisdictions provides that a plaintiff cannot maintain a tort action for injuries that are sustained as the direct result of his or her knowing and intentional participation in a criminal act.
88 A.3d at 472 (citations and quotation marks omitted). A criminal could not be allowed to recover from a medical professional for failing to stop him from committing his crime. “[T]here is no question that he would be barred from recovering under this rule, despite whatever reasonable limits might be imposed on its application.” Id. at 474.
Other cases applying the Wrongful Acts Doctrine in essentially the same situation (only the target defendants and underlying crimes are different) as Greenwald are: Burcina v. Ketchikan, 902 P.2d 817, 820 (Alaska 1995) (psychiatric patient convicted of arson; “recogniz[ing] the public policy principle which precludes a person who has been convicted of a crime from imposing liability on others for the consequences of that antisocial conduct”); Cole v. Taylor, 301 N.W.2d 766, 768 (Iowa 1981) (psychiatric patient convicted of murder; “The general rule is  that a person cannot maintain an action if, in order to establish his cause of action, he must rely, in whole or in part, on an illegal or immoral act or transaction to which he is a party”); Muscat by Berman v. Creative Innervisions LLC, 418 P.3d 967, 972 (Ariz. App. 2017) (escaped child molester sued institution he had escaped from; “recognizing the legal consequences of a ward’s criminal conduct as a legally cognizable injury would distort the long-established public policy of personal accountability for criminal behavior”); Guillie v. Comprehensive Addiction Programs, Inc., 735 So.2d 775, 779 (La. App. 1999) (psychiatric patient convicted of embezzlement; following “rule [that] categorically denies recovery because courts do not want to aid plaintiffs whose causes of action are based on their own illegal conduct”); Rimert v. Mortell, 680 N.E.2d 867, 872 (Ind. App. 1997) (psychiatric patient convicted of murder; following “the sound policy objective that those who knowingly and intentionally engage in serious illegal acts should not be able to impose liability upon others for the consequences of their own behavior”); Glazier v. Lee, 429 N.W.2d 857 (Mich. App. 1988) (psychiatric patient convicted of manslaughter; under “rule that a person may not benefit from his own criminal act . . . it would be, plainly and simply wrong as a matter of public policy to allow recovery”).
Scenario 3: Another recurring situation where the Wrongful Acts Doctrine is appropriately applied has to do with thieves who injure themselves while attempting to steal things and then seek recovery from the property owner. An “injured burglar is not entitled to benefit from his burglary because he cannot invoke a duty triggered by his unlawful entry.” Alami v. Volkswagen of America, Inc., 766 N.E.2d 574, 577 (N.Y. 2002) (hypothetical). A leading case is Oden v. Pepsi Cola Bottling Co., 621 So.2d 953 (Ala. 1993), where the plaintiff tipped a vending machine while trying to steal drinks, but the machine fell on him instead. The court barred recovery in “any action seeking damages based on injuries that were a direct result of the injured party’s knowing and intentional participation in a crime involving moral turpitude.” Id. at 955.
This rule promotes the desirable public policy objective of preventing those who knowingly and intentionally engage in an illegal or immoral act involving moral turpitude from imposing liability on others for the consequences of their own behavior. . . . [This] rule derives principally not from consideration for the defendant, but from a desire to see that those who transgress the moral or criminal code shall not receive aid from the judicial branch of government.
Id. (citations and quotation marks omitted).
Likewise, in Gonzalez v. Asnat Realty, LLC, 2018 WL 3504798 (Conn. Super. July 2, 2018), the plaintiff trespassed on defendant’s property attempting to steal copper wire, but was electrocuted when the wire he touched turned out to be live. Connecticut’s Wrongful Acts Doctrine barred the action whether or not “the plaintiff was injured when he attempted to cut and steal the very wire that caused his injuries.” Id. at *2. On any version of the facts “the wrongful conduct rule applie[d]” and the defendant was entitled to summary judgment. Id. (footnote omitted).
Similarly in Hammonds v. United States, 2018 WL 1399183 (D.N.M. March 19, 2018), several plaintiffs were injured by unexploded ordnance they were attempting to steal from an army gunnery range. The same New Mexico Wrongful Acts Doctrine discussed earlier in the drug context barred the would-be thieves’ claims:
It is undeniable that Plaintiffs’ injuries would not have occurred but for their own wrongful conduct, which they set in motion. . . . Plaintiffs’ conduct was intentional and criminal. . . . In short, every element of the wrongful conduct doctrine is met in this case. Thus, if it applies, Plaintiffs’ claims must be dismissed.
Id. at *8 (following Inge and Romero).
Scenario 4: Another recurring non-drug situation is where a criminal fleeing arrest injures himself during the attempt to escape. The Wrongful Conduct Rule barred recovery in that circumstance in Bryant v. Beary, 766 So.2d 1157 (Fla. App. 2000), involving a criminal who died in an automobile accident while being chased by police.
Common sense and all rational notions of public policy dictate that a violator fleeing law enforcement who injures himself as a result of his own criminal misconduct should not be able to bring an action for negligence against the law enforcement officer trying to detain him, or against his employer.
Id. at 1160.
A shoplifter injured trying to escape from store security could not sue in Stolicker v. Kohl’s Department Stores, Inc., 2012 WL 676391 (Mich. App. March 1, 2012). “The record establishes that plaintiff’s shoplifting set in motion the chain of events that led to her injuries. Consequently, plaintiff’s wrongful conduct was a proximate cause of her injuries, and the trial court properly applied the wrongful conduct rule to dismiss plaintiff’s claims.” Id. at *2.
In Estate of Gambino-Vasile v. Town of Warwick, 89 N.Y.S.3d 577 (N.Y. Sup. 2018), “to elude the police,” plaintiff’s decedent “operat[ed] his vehicle at breakneck speeds far in excess of the established speed limits and repeatedly crossing the double yellow line into oncoming traffic.” Id. at 586. Under the Wrongful Acts Doctrine, plaintiff could not recover from the police for resulting injuries. “[T]he Decedent was not an innocent ‘bystander’ but the lawbreaker who provoked police pursuit.” Id. at 584. Thus, “what Plaintiff seeks to do in this case is impose a duty arising out of or triggered by the Decedent’s violation of the law.” Id. at 586.
Scenario 5: Still another scenario for applying the Wrongful Acts Doctrine is where plaintiffs sue after being injured by their mishandling of illegal substances other than drugs. Those facts – a plaintiff suing after a pipe bomb he was making exploded − caused the New York Court of Appeals to apply the Doctrine, in Barker v. Kallash, 468 N.E.2d 39 (N.Y. 1984). Rejecting “comparative negligence,” Barker held:
[W]hen the plaintiff has engaged in activities prohibited, as opposed to merely regulated, by law, the courts will not entertain the suit if the plaintiff’s conduct constituted a serious violation of the law and the injuries for which he seeks recovery were the direct result of that violation. In this latter instance recovery is denied, not because the plaintiff contributed to his injury, but because the public policy of this State generally denies judicial relief to those injured in the course of committing a serious criminal act. The rule is based on the paramount public policy imperative that the law, whatever its content at a given time or for however limited a period, be obeyed. It extends the basic principle that one may not profit from his own wrong to tort actions seeking compensation for injuries resulting from the plaintiff’s own criminal activities of a serious nature.
Id. at 41 (citations and quotation marks omitted). “[C]ulpable conduct,” as provided in the state’s comparative fault statute, did not bar the Wrongful Acts Doctrine. “The policy which applies to this case, has always existed independently from the rule of contributory negligence and its successor, comparative negligence.” Id. at 43-44. See Wolfe v. Hatch, 943 N.Y.S.2d 296, 297-99 (N.Y.App. Div. 2012) (bombmaker could not recover from source of explosives; plaintiff’s “decision to participate in the detonation of such devices cannot be written off as “a minor dereliction” . . . but, rather, constitutes a sufficiently serious violation of the law as to preclude recovery for the unfortunate injuries sustained”). Between them, Barker and Wolfe give a new meaning to “Bronx Bombers.”
These are hardly the only cases applying the Wrongful Acts Doctrine. But to avoid making this post even longer than it is, we’ll list additional precedent in a chart. The purpose of the exercise is to demonstrate how widespread and deeply held the rule prohibiting recovery based on a plaintiffs’ own criminal acts really is. It is a rule adopted for reasons of jurisprudential policy that are in no way subservient to the more diffuse reasons supporting adoption of comparative fault. Courts simply disagree, in large numbers, with the Preliminary Draft’s premise that criminal conduct is no more blameworthy than negligence.
Alabama: Ex parte W.D.J., 785 So.2d 390, 393 (Ala. 2000) (victim restitution denied due to victim’s participation in the crime; his “participation in the defendant’s criminal activity would prevent him from recovering damages in a civil lawsuit”).
Alaska: Howarth v. State, Public Defender Agency, 925 P.2d 1330, 1336 (Alaska 1996) (scenario 2 case; convicted criminal could not sue lawyer; “plaintiffs have no civil remedy for incarceration damages concurrently caused by their criminal conduct and by the negligence of others”); Lord v. Fogcutter Bar, 813 P.2d 660, 663-664 (Alaska 1991) (drunken criminal could not recover from bar; following “the public policy justification we articulated in Adkinson”); Adkinson v. Rossi Arms Co., 659 P.2d 1236, 1240 (Alaska 1983) (murderer could not recover from manufacturer of murder weapon; “allowing a criminal defendant . . . to impose liability on others for the consequences of his own anti-social conduct runs counter to basic values underlying our criminal justice system”).
California: Cal. Civil C. §3517 (“No one can take advantage of his own wrong.”); Klean W. Hollywood, LLC v. Superior Court, 230 Cal. Rptr.3d 168, 177-78 (Cal. App. 2018), ordered depublished upon denial of review (Cal. June 13, 2018) (scenario 2 case); Goodwin v. Anheuser-Busch Cos., 2005 WL 280330, at *4 (Cal. Super. Jan. 28, 2005) (plaintiffs sought recovery of cost of products they bought illegally; “the courts will not assist those whose suits are based on their own illegal conduct”).
Florida: Jacobson v. CVS Caremark Corp., 2015 WL 11438090, at *2 (Mag. S.D. Fla. Jan. 23, 2015) (murderer barred from recovery against drug manufacturer; “Florida has adopted the wrongful conduct doctrine.” “Many other courts, both state and federal, have similarly applied this doctrine” to bar actions blaming prescription drugs for criminal acts.), adopted, 2015 WL 11422290 (S.D. Fla. Feb. 26, 2015) (scenario 1 case).
Iowa: Tate v. Derifield, 510 N.W.2d 885, 888 (Iowa 1994) (derivative loss of consortium claim; “it would be wrong as a matter of public policy to allow recovery on a consortium claim which arose from the lawful incarceration of a spouse”).
Kansas: Parker v. Mid-Century Insurance Co., 962 P.2d 1114, 1116 (Kan. App. 1998) (scenario 4 case; high speed police chase; “a party who consents to and participates in an illegal act may not recover from other participants for the consequences of that act”).
Louisiana: Hines v. Bick, 566 So.2d 455, 460-61 (La. App. 1990) (scenario 2 case; “public policy does not permit a person to benefit from his own criminal act”).
Michigan: Romeos v. Salvation Army, 2014 WL 265530, at *4-5 (Mich. App. Jan. 23, 2014) (following Orzel; scenario 1 case); Graham v. Secure Care, Inc., 2007 WL 122127, at *2 (Mich. App. Jan. 18, 2007) (following Orzel; close to scenario 4 case; plaintiff swallowed a large quantity of illegal drugs to avoid arrest); Beecham v. City of Detroit, 1998 WL 1992500, at *1 (Mich. App. March 24, 1998) (following Orzel; scenario 4 case; plaintiff’s “act of fleeing from the pursuing police officers was integrally related to his criminal conduct”).
Nevada: Savage v. Child Welfare Div., 2005 WL 8165383, at *7-8 (D. Nev. Oct. 11, 2005) (scenario 2 case; child molester had no claim against those attempting to treat him; citing state’s “compelling interest . . . in the prevention of direct profiteering from criminal misconduct”), aff’d, 267 F. Appx. 697 (9th Cir. 2008).
New Jersey: Tryanowski v. Lodi Board of Education, 643 A.2d 1057, 1062 (N.J. Super. Law Div. 1994) (plaintiff involved in “hazing” could not recover; no claim “where [plaintiff] must base his cause of action, in whole or in part, on a violation by himself of the criminal or penal law”); Amato v. United States, 549 F. Supp. 863, 867 (D.N.J. 1982) (plaintiff could not recover from FBI for not arresting him sooner; “there is no duty which runs to the criminal in such a situation. Plaintiff, in effect, states to the FBI that you should have stopped me, and because you did not, I was injured and you are responsible”), aff’d without opinion, 729 F.2d 1445 (3rd Cir. 1984).
New York: Manning v. Brown, 689 N.E.2d 1382, 1384 (N.Y. 1997) (joyrider who helped steal car could not recover; “plaintiff seeks redress in connection with the very conduct that constitutes a violation of the law”); Johnson v. State, 687 N.Y.S.2d 761 (N.Y. App. Div. 1999) (scenario 4 case; “conclu[ding] that decedent’s escape from custody precludes any recovery as a matter of public policy”); Tillmon v. New York City Housing Auth., 609 N.Y.S.2d 239, 240 (N.Y. App. Div. 1994) (recovery by “elevator surfer’s” heirs barred; death caused by “hazardous and illegal conduct, and compensation should not be granted in such circumstances”).
Oklahoma: Prince v. B.F. Ascher Co., 90 P.3d 1020, 1028 (Okla. App. 2004) (scenario 1 case; “If public policy does not condone a cause of action by inebriates suing for injuries caused by their own intoxication, we see no reason why it should permit addicts to recover for injuries stemming from their illicit drug use.”); Taylor v. Hesser, 991 P.2d 35, 39 (Okla. App. 1998) (“Assuming, arguendo, that shooting . . . another person violates [the law], [plaintiff] was in pari delicto” and “is estopped from taking advantage of his own possibly illegal act to recover damages.”) (citations omitted).
Pennsylvania: Minnesota Fire & Casualty Co. v. Greenfield, 855 A.2d 854, 868-69 (Pa. 2004) (insurance case involving claim by drug pusher; “Given this clear enunciation of public policy regarding Schedule I controlled substances . . . [defendant] is not required to defend or indemnify against damages arising out of its insured’s criminal acts where the voluntary participation of the victim in an illegal heroin-transaction caused her death”); Holt v. Navarro, 932 A.2d 915, 920 (Pa. Super. Aug. 16, 2007) (scenario 2 case; “as a matter of law, [defendant] cannot be liable for the collateral consequences of [plaintiff’s own] criminal convictions”).
South Carolina: Proctor v. Whitlark & Whitlark, Inc., 778 S.E.2d 888, 893, 896 (S.C. 2015) (recognizing “the well-established doctrine of in pari delicto” that reflects “the general principle that a person cannot base a cause of action upon an illegal or immoral act, transaction or contract”; narrowly interpreting ambiguous statute to preclude recovery for illegal activity, otherwise “anyone engaged in an illegal activity could . . . recover losses sustained by the illegal activity”).
Tennessee: Moss v. Mid-South Hospital, 1989 WL 134666, at *2 (Tenn. App. Nov. 7, 1989) (scenario 2 case; murderer and drug addict sued psychiatrist; “the injury for which he seeks recovery was caused by his own volitional and criminal acts”; following “general rule . . . that it would be, plainly and simply, wrong as a matter of public policy to allow recovery”) (quoting Cole, supra); Gardner v. United States, 2009 WL 10679418, at *3 (M.D. Tenn. Sept. 30, 2009) (scenario 2 case; “Plaintiff pled guilty” so “the injury for which [he] seeks recovery was caused by his own intentional actions”), aff’d, 443 F. Appx 70 (6th Cir. 2011).
Virginia: Lee v. Nationwide Mutual Insurance Co., 497 S.E.2d 328, 329-30 (Va. 1998) (minor who “actively planned to steal car could not other minor who participated; plaintiff “consented to his participation in an illegal act and that the illegality defense barred his recovery for injuries sustained as a result of that illegal act”).
Wyoming: Feltner v. Casey Family Program, 902 P.2d 206, 208-09 (Wyo. 1995) (scenario 2 case; child molester had no claim against those attempting to treat him; “the public policy foreclosure of such causes of action is the prevailing rule in American jurisdictions”) (citations omitted).
This list is strictly in addition to all the cases discussed previously.
Finally, the Preliminary Draft criticizes (page 168, lines 19-33) application of the Wrongful Acts Doctrine in Zysk v. Zysk, 404 S.E.2d 721 (Va. 1990), which barred recovery for contraction of a sexually transmitted disease due to the plaintiff’s fornication (a misdemeanor) with her own husband before marriage. Id. at 722. We do too, since the illegality of the act had no bearing on the alleged risk. We point out, however, two things about Zysk that the draft omits: (1) the statute in question, Va. Code §18.2-344, has been repealed, thus removing those facts from the Wrongful Acts Doctrine altogether, see Martin v. Ziherl, 607 S.E.2d 367, 371 (Va. 2005), and (2) Virginia is one of the few states not recognizing comparative fault at all, e.g., Jones v. Ford Motor Co., 559 S.E.2d 592, 605 (Va. 2002), so it is no surprise that Virginia law reaches results “inconsistent with contributory negligence.” Preliminary Draft #1, Reporters’ Notes, p. 168, line 32.
There are, of course, dissenting views. In Tug Valley Pharmacy, LLC v. All Plaintiffs Below In Mingo County, 773 S.E.2d 627 (W. Va. 2015), a plurality opinion, two justices (along with a justice concurring in the result, see id. at 642 n.4 (disagreeing with rationale of lead opinion)) did just what the Preliminary Draft advocates – abrogated the Wrongful Acts Doctrine in favor of comparative fault in suits brought by a bunch of drug abusers against medical providers who operated “pill mills” (and who were eventually busted by the FBI). Id. at 629. Tug Valley held:
A plaintiff’s immoral or wrongful conduct does not serve as a common law bar to his or her recovery for injuries or damages incurred as a result of the tortious conduct of another. Unless otherwise provided at law, a plaintiff’s conduct must be assessed in accordance with our principles of comparative fault.
Id. at 628 (Syllabus ¶5). Tug Valley cited exactly one case (and a couple of law review articles) in support of its result. Id. at 631 & n.8.
That other case is Dugger v. Arredondo, 408 S.W.3d 825, 826-27 (Tex. 2013), which likewise (and likewise over a vehement dissent) held the Wrongful Acts Doctrine was abrogated by general language in that state’s comparative fault statute.
The language of the statute indicates the Legislature’s desire to compare responsibility for injuries rather than bar recovery, even if the claimant was partly at fault or violated some legal standard. Therefore, we hold that [the statute] controls over the unlawful acts doctrine in the wrongful death context.
Id. at 832 (citation omitted). However, Dugger’s abrogation of the Doctrine was limited – the plaintiff was allowed to proceed with the suit only because he “was never finally convicted.” Id. at 834. That result occurred because Texas has codified the Wrongful Acts Doctrine as a defense whenever a plaintiff was “committing a felony, for which the plaintiff has been finally convicted, that was the sole cause of the damages.” Id. at 835 (quoting Tex. Civ. Prac. & Rem. Code §93.001).
There is also Ashmore v. Cleanweld Products, Inc., 672 P.2d 1230, 1231 (Or. App. 1983), which allowed a pipe bomb maker to seek recovery against the maker of the chemicals that exploded. The “analysis” was all of two sentences, cited no cases, and had nothing to do with comparative fault:
Defendant’s contention, that there is a strong public policy against the illegal manufacture of explosives, is correct. That policy is best effectuated, however, through penal laws.
Id. at 1231 (citations omitted).
That’s pretty much it when it comes to legal support for doing away with the Wrongful Acts Doctrine – three cases, one a plurality opinion, the second applying only in the absence of a criminal conviction, and the third with only rudimentary reasoning.
The above analysis represents a couple of days of our own research. We believe it amply demonstrates that tort law generally recognizes, when it comes to conduct the legislature has criminalized, that expression of public policy: (1) makes criminal behavior different in kind from mere negligence, and (2) does not allow civil plaintiffs to profit, through damages, from the consequences of their criminal acts. What we have found leaves us confident that neither current precedent nor sound jurisprudence support abandonment of the Wrongful Acts Doctrine. The draft Restatement’s reporters, however, are law professors who presumably can tap the research skills of numerous law students eager to work on a “prestige project” like an ALI restatement. We urge them to do so.
We also urge the reporters to reexamine their own biases, to put aside tidy models of how they think the law should work, and instead to recognize what the great majority of caselaw – including modern, well-reasoned precedents from courts across the country – actually holds. At times, it appears that the Preliminary Draft’s discussion is driven as much by the reporters’ distaste for what legislatures have chosen to criminalize as by what the law actually holds concerning recovery for criminal acts. E.g., Preliminary Draft, Reporters’ Notes, at 170, lines 18-38 (drug abuse); 172, lines 16-38 (sexism). Given all the recurring scenarios in which courts typically apply the Wrongful Acts Doctrine, discussed above, why make §4B, Illustration 3 about illegal abortions, when the underlying malpractice case not only has nothing to do with abortions, but employed a “different rationale” from that illustration? See Id., Reporters’ Notes, at 166, lines 1-6. Instead of complaining about “judicial bias,” id. at 172, lines 16, 37-38, perhaps they should look inside.
We would have no objection to the Third Restatement endeavoring to harmonize the boundaries of the Wrongful Acts Doctrine. The Doctrine shouldn’t apply in situations where a plaintiff’s criminality was merely coincidental (see Preliminary Draft §4A, Illustrations 1 & 2, and arguably Alami, 766 N.E.2d at 577 (defendant’s breach was the same as against “any driver . . . regardless of the initial cause”)). Nor do we believe that the Doctrine should apply to a passive, “status” crime. See, e.g., Mischalski v. Ford Motor Co., 935 F. Supp. 203, 206 (E.D.N.Y. 1996) (“off the books” work of unlicensed mechanic at time of injury had no bearing on risk posed by allegedly defective automobile jack). That a person is a fugitive, undocumented, or lacks a drivers’ license, does not make him/her fair game for any tortfeasor to injure. Similarly, reasonable minds may differ whether Texas law, requiring an actual conviction as an element of the Wrongful Acts Doctrine, has merit as a limitation on the doctrine – at least as to plaintiffs who survive the consequences of their criminal acts.
But so long as the proposal on the table is to include a general rule in the Third Restatement of Torts that abolishes the Wrongful Acts Doctrine altogether and equates criminality with negligence (it’s only a first round Preliminary Draft) we do object, and will have more to say on this subject. According to the ALI’s definition of how a “Restatement” is to be written, see Preliminary Draft #1, pp. xi-xii, “[t]he Restatement process contains four principal elements.”
- “The first is to ascertain the nature of the majority rule.” Without question, the Wrongful Acts Doctrine is the majority rule. We found the Doctrine cited in personal injury cases in 25 states, with only three going the other way (and one of those having a broad statutory exception). Time after time, these cases describe the Doctrine as the “general” rule.
- “The second step is to ascertain trends in the law.” There is no trend away from the Wrongful Acts Doctrine. The last cases to hold what the Preliminary Draft advocates was West Virginia in 2015. Our research identified eleven cases from all over the country that have affirmatively applied the Doctrine since then − the most recent being in June, 2020.
- “The third step is to determine what specific rule fits best with the broader body of law and therefore leads to more coherence in the law.” The Wrongful Acts Doctrine is only the personal injury version of the much larger doctrine of in pari delicto, which prohibits wrongdoers from profiting from their wrongful actions in non-personal injury torts, inheritance, bankruptcy, corporate law, and more. See Preliminary Draft §4B, comment h, and corresponding Reporters’ notes. Indeed, the personal injury precedents we cite herein, routinely rely on non-personal injury precedents, and vice versa. As already discussed, the Intentional Torts restatement distinguishes between negligence and more aggravated forms of conduct. See also, e.g. F.R. Evid. 404.
- “The fourth step is to ascertain the relative desirability of competing rules.” Given the stark, and continuing, imbalance in precedent, this fourth step is essentially all the Reporters have. They repeatedly rely on “scholarship” that criticizes the Wrongful Acts Doctrine, most frequently a nearly 20-year old “King” article, and some more recent, result-oriented screeds against drug companies. In opposition, we rest our case on the continuing force of the “public policies” repeatedly embraced by the courts: (1) courts should not aid plaintiffs whose claims rely on their own illegal conduct; (2) courts reject claims that would condone and encourage illegal conduct; (3) wrongdoers should not profit from their illegal acts; and (4) tort law should not recognize claims that would make a mockery of our system of justice and bring it into disrepute.
Ultimately, the membership of the ALI votes on all Restatement proposals, and any member can offer amendments and argue them at the annual meeting. Bexis has done this before (successfully preventing the Principles of Aggregate Litigation from de facto endorsing medical monitoring as a cause of action – something else this misguided preliminary draft proposes), and is willing to do it again. If you’re a blog reader who belongs to the ALI, we could eventually be seeking your help and votes on such an amendment. If you’re an in-house blog reader who hires outside counsel, we might be asking you to ask ALI members in the law firms you hire to do likewise. Please be ready, because we will be.