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We don’t see the defense of illegality much in the product liability space, but when a plaintiff’s claims arises from his or her own illegal behavior, the illegality defense can be a powerful tool.  We mention this now because a district court in Kansas recently applied the illegality defense to dismiss a case based on the decedent’s own illegal behavior.  The court was the first in Kansas to apply the illegality defense in a product liability case, and it also rejected the notion that illegality is subsumed into comparative fault under Kansas law. 

The illegality defense is also known as in pari delicto, which comes from the latin saying “in pari delicto potior est conditio defendentis.”  That translates roughly to mean that in a case of equal or mutual fault, the defending party has the better position.  The district court in Messerli v. AW Distributing, Inc., No. 22-2305, 2023 WL 4295365 (D. Kan. June 30, 2023), certainly read it that way.  In Messerli, the plaintiff alleged that his son became addicted to inhaling (or “huffing”) computer dusters.  Those are the cans of compressed air that you can buy to blow dust out of your computer, your keyboard, or whatever other tight spaces dust and other debris might get into.  We had no idea that huffing was a thing, but the plaintiff alleged that the odorless gas in computer dusters is intoxicating when inhaled.  Id. at *1. 

The plaintiff’s son sadly passed away, allegedly as a result of huffing dusters, which led to this lawsuit.  As it turns out though, huffing is a crime in Kansas, which criminalized “the unlawful abuse of toxic vapors” in 2009.  Id. at *3.  Thus, it was undisputed that the decedent was engaged in illegal conduct when he died.  The question was whether that illegal conduct would cut off liability. 

The district court ruled that illegality was a complete defense.  Simply put, Kansas law recognizes an illegality defense “that bars claims arising from a plaintiff’s illegal conduct.”  Id. at *5.  As Kansas courts have explained:

The illegality defense is based on the principle that a party who consents to and participates in an illegal act may not recover from other participants for the consequences of that act. The defense will be applied to bar recovery if the evidence shows that the plaintiff freely and voluntarily consented to participate in the illegal act, without duress or coercion.

Id. (citing Parker v. Mid-Century Ins., 962 P.2d 1114, 1116 (Kan. Ct. App. 1998)).  Applying this rule to the plaintiff’s allegations, the district ruled that the plaintiff’s son had voluntarily engaged in an illegal act, i.e., huffing computer dusters, which barred the plaintiff’s claims. 

In dismissing the claims, the district court made two helpful rulings.  First, the district court rejected the argument that Kansas’s codification of comparative fault impliedly overruled the in pari delicto doctrine.  The plaintiff argued any illegal conduct should be taken into account when allocating fault, not to erect a complete defense on the pleadings.  Kansas, however, codified comparative fault in 1974, and Kansas’s courts have continued to apply the illegality defense in the intervening years to bar claims arising from a plaintiff’s illegal conduct.  In other words, there has been no implied overruling.  Moreover, the authorities that the plaintiff cited all involved negligent conduct by the plaintiff, where comparative fault sensibly would apply.  None of them involved illegal criminal conduct, where in pari delicto remains vital.  Id. at *6-*7. 

Second, the district court became the first court to rule that Kansas’s illegality defense applies in product liability cases.  The plaintiff argued that the “public policy underlying products liability actions” does not support applying the defense, but the district court did not see why that would be the case.  Kansas courts have applied the defense in multiple non-products liability cases, and the plaintiff’s public policy argument was undermined by the multiple products liability cases from other jurisdictions applying the illegality defense—mostly cases involving illegally obtained and used prescription drugs.  Id. at *7. 

Like we said at the outset, we don’t see the illegality defense much, maybe because plaintiffs’ attorneys tend to steer clear of cases where the defense might arise.  But in pari delicto, at least in Kansas, is alive and well. 

Editor’s note: On August 7, 2023, the plaintiff filed a motion to certify this question to the Kansas Supreme Court. Shout out to Scott KaiserHolly Pauling SmithStephen Nichols and Anna Gadberry at Shook Hardy for bringing this to our attention and for attaining this result.