Greenwald v. Van Handel ( 2014 )

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GREENWALD v. VAN HANDEL—DISSENT
EVELEIGH, J., dissenting. I respectfully dissent. The
majority holds that the plaintiff in this malpractice
action, Lee Greenwald, cannot pursue his case because
‘‘it clearly would violate public policy to impose a duty
on the defendant [David Van Handel] to protect the
plaintiff from injuries arising from his potential criminal
prosecution for the illegal downloading, viewing and/
or possession of child pornography.’’ I disagree with
the majority’s conclusion on several grounds.
First, I believe that the wrongful conduct rule is ill
suited for tort actions. That rule originated as an equita-
ble defense in contract law under the Latin phrase ex
turpi causa non oritur actio, which means ‘‘no cause
of action can arise out of an illegal or immoral induce-
ment.’’ Gagne v. Vaccaro, 255 Conn. 390, 407, 766 A.2d
416 (2001); see also Black’s Law Dictionary (8th Ed.
2004). In my view, this rule is contrary to Connecticut
tort law in that it vitiates the principles of proximate
cause and comparative negligence. Indeed, if the plain-
tiff’s conduct is so offensive to our public policy, let the
defendant establish the plaintiff’s conduct as a special
defense and allow a jury to evaluate the nature of the
wrongdoing. There are many instances involving a
plaintiff’s conduct that members of the community
would no doubt find odious, such as drunk driving, but
we do not bar plaintiffs who engage in such conduct
from bringing an action in an attempt to justify their
entitlement to damages to a jury. For example, if a
drunk driver is stopped at a stop sign and subsequently
rear-ended, our law allows the drunk driver to bring an
action for damages. The defendant can establish the
drunk driving as a special defense.
Second, the adoption of the wrongful conduct rule,
under these circumstances, would create a body of law
that is both inconsistent in its application and insuffi-
cient as a guide to trial courts confronted with the issue.
For instance, when does a court decide that behavior
is so wrongful that the action must be dismissed? Is it
a matter for this court to decide on a case-by-case basis?
How will a trial court know to dismiss a case in the
future, unless the case involves child pornography?
Third, in my view, the ruling is contrary to an already
established state policy allowing malpractice cases
when the plaintiff has procured a good faith certificate
letter pursuant to General Statutes § 52-190a. Indeed,
if the legislature had intended for a certain class of
people to have their malpractice actions barred even
if they could establish malpractice, it could have easily
set forth the barred class or classes in the statute. In
this action, the plaintiff obtained a good faith certificate
establishing malpractice, yet we are now depriving him
of the opportunity of a trial by jury. In this case, the
plaintiff is claiming that his ‘‘habit’’ of viewing child
pornography while he was a minor was not properly
treated and that he still has the problem as an adult.
What if a physician prescribed too much medication
and, as a result, a person became addicted to drugs to
the point that he or she either possessed or sold drugs?
Would we now say that either the possession or sale
of drugs is so wrongful that a malpractice action against
the physician would not survive? Does the reasoning
of our opinion today apply with equal force to all per-
sons who have been unsuccessfully treated for an addic-
tion to the point that, even where a health care
professional is of the opinion that the medical profes-
sional in the case has violated professional standards,
the conduct involved in the addiction is so ‘‘wrongful’’
there can be no cause of action? Have we now, in effect,
created a new immunity for professionals involved in
the treatment of individuals addicted to child pornogra-
phy, drugs, gambling, alcohol, or a myriad of other
addictions, because the conduct involved in those
addictions is so wrongful? If not, how do we decide
where the line is to be drawn? All of the conduct associ-
ated with such addictions is proscribed by state statute.
Where does this court differentiate between the offen-
sive conduct in violation of a state statute that prohibits
a malpractice action and the offensive conduct in viola-
tion of a state statute that does not bar a malpractice
action? I believe that we now enter an area known as
the impenetrable ‘‘Serbonian bog’’ where the precise
lines of legal jurisprudence are never clear. See Matara-
zzo v. Rowe, 225 Conn. 314, 318 n.3, 623 A.2d 470 (1993)
(‘‘ ‘[a] gulf profound, as that Serbonian bog Betwixt
Damiata and Mount Casius old, [w]here armies whole
have sunk’ ’’), quoting J. Milton, Paradise Lost, bk. 2,
ll. 592–94. Rather, at any given time, the lines will change
in the direction of the wind.
Fourth, assuming, arguendo, that the majority is cor-
rect in holding that Connecticut’s public policy bars the
plaintiff’s claims related to the criminal investigation
and prosecution, this complaint reads as a standard
malpractice case with claims seeking damages for fur-
ther medical bills and treatment as the result of the
defendant’s breach of the standard of care. In my view,
regardless of whether the plaintiff should be barred
from recovering for injuries arising from his criminal
prosecution, the other claims should have survived the
motion to strike. For these reasons, I cannot join the
majority opinion and most respectfully dissent.
I
The majority’s conclusion that the plaintiff’s claims
are barred because of the nature of his behavior runs
contrary to the well established principles of our tort
law. During the first part of the twentieth century we
recognized that a person ‘‘is not barred of redress for
an injury suffered by himself, nor liable for an injury
suffered by another, merely because he is a law-
breaker.’’ Munroe v. Hartford Street Railway Co., 76
Conn. 201, 206, 56 A. 498 (1903). Thus, when the driver
of a milk wagon left his horse and wagon unattended,
in violation of a city ordinance, and the wagon was
on the tracks of the defendant’s railroad when it was
subsequently struck by one of the defendant’s cars
being operated at a high rate of speed, we stated that
‘‘[i]n doing an unlawful act a person does not necessarily
put himself outside the protection of the law.’’ Id. This
court further explained that ‘‘[i]n actions to recover for
injuries not intentionally inflicted but resulting from a
breach of duty which another owes to the party
injured—commonly classed as actions for negligence—
the fact that the plaintiff or defendant at the time of
the injury was a lawbreaker may possibly be relevant as
an incidental circumstance, but is otherwise immaterial
unless the act of violating the law is in itself a breach
of duty to the party injured in respect to the injury
suffered.’’ Id. Since 1890, this court recognized the fact
that ‘‘the rule applicable to negligence and to illegal
acts on the part of the plaintiff is precisely the same.’’
Broschart v. Tuttle, 59 Conn. 1, 20, 21 A. 925 (1890).
Further, in Hoelter v. Mohawk Service, Inc., 170 Conn.
495, 503, 365 A.2d 1064 (1976), we stated that ‘‘[i]t may
safely be stated that [a]ll authorities agree that plaintiffs
in tort actions may so conduct themselves as to bar
recovery for injuries suffered by them. This recovery-
barring conduct, while given different labels, is ofttimes
treated within the general concept of contributory negli-
gence.’’ (Internal quotation marks omitted.) ‘‘[T]he prin-
ciples which determine the relation of the negligent
conduct in the one case, or the illegal act in the other,
to the resulting injury as a proximate cause, are the
same.’’ Monroe v. Hartford Street Railway Co., supra,
207. Thus, the plaintiff’s involvement in illegal activity
did not bar recovery under contributory negligence
when there was a lack of causation between the activity
and the injuries. Bagre v. Daggett Chocolate Co., 126
Conn. 659, 664–65, 13 A.2d 757 (1940) (participation in
illegal bingo game did not preclude action against candy
manufacturer for injuries sustained while eating candy);
see also Kurtz v. Morse Oil Co., 114 Conn. 336, 341–42,
158 A. 906 (1932) (minor decedent’s conduct driving
underage and without license did not preclude estate’s
recovery); 4 Restatement (Second), Torts § 889 (1979)
(recovery not barred ‘‘merely because at the time of
the interference he was committing a tort or a crime’’).
I see no reason why we should stray from these well
established principles.
If the plaintiff brought about his own misfortune and
was more than 50 percent negligent, the defendant
would have been successful in establishing a special
defense and a verdict would be rendered in favor of
the defendant. To conclude that it was proper to grant
a motion to strike because this court finds the plaintiff’s
behavior so abhorrent that it violates the public policy
of this state runs counter, in my view, to both the law
of torts and principles of comparative negligence and
proximate cause. In effect, the position adopted by the
majority establishes that someone who engages in child
pornography cannot bring an action against the thera-
pist who treated him regardless of the nature of that
treatment. Thus, in my view, the majority’s position
reverts this state to the old principle of contributory
negligence, a doctrine which operated as a complete
bar to recovery where the plaintiff was even 1 percent
negligent. See Williams Ford, Inc. v. Hartford Courant
Co., 232 Conn. 559, 585, 657 A.2d 212 (1995). The major-
ity is imposing its opinion of what is the public policy
of this state, such that an otherwise valid malpractice
case cannot be presented to the jury. In effect, the
majority holds that the plaintiff’s conduct must have
been at least 51 percent negligent so that he could never
recover under these circumstances.
Our legislature has, however, abolished the doctrine
of contributory negligence and established the doctrine
of comparative negligence, indicating that a plaintiff
can still recover if he was even 50 percent negligent.
See General Statutes § 52-572h (b). Nowhere in the com-
parative negligence statute, however, did the legislature
determine that either certain types of conduct or certain
classes of people would not be subject to the compara-
tive negligence doctrine. The wrongful conduct rule
adopted by the majority today undermines this system
by shifting the responsibility for determining the nature
of the conduct of the parties away from the jury. We are,
in effect, as argued by the Connecticut Trial Lawyers
Association in its amicus brief (amicus brief), simply
reviving ‘‘the old doctrine of contributory negligence
. . . under a pseudonym.’’ This result conflicts with the
policy and intent of our comparative negligence statute.
This result, in my view, inappropriately circumvents
and frustrates the legislature’s purposeful mandate to
abolish those doctrines that result in a complete bar to
recovery. In this ruling, we are establishing the public
policy of the state for civil cases involving child pornog-
raphy, when the legislature has proscribed the conduct
as a crime, but has not proscribed the conduct in a civil
action. In my view, when we engage in such a scattered
approach to public policy considerations we are over-
reaching our boundaries and setting a dubious
precedent.
It is axiomatic that causation is essential to any mal-
practice action. See Boone v. William W. Backus Hospi-
tal, 272 Conn. 551, 575, 864 A.2d 1 (2005). Proximate
cause is determined by the substantial factor test—
whether harm was ‘‘of the same general nature as the
foreseeable risk created by the defendant’s negligence.’’
(Internal quotation marks omitted.) Monk v. Temple
George Associates, LLC, 273 Conn. 108, 124, 869 A.2d
179 (2005); see also Barry v. Quality Steel Products,
Inc., 263 Conn. 424, 441 n.17, 820 A.2d 258 (2003). A
plaintiff’s conduct does not break the chain of causation
unless it was unforeseeable. This is because criminal
or tortious acts may be foreseeable and within the scope
of risk created by a defendant’s conduct. Craig v. Dris-
coll, 262 Conn. 312, 331–33, 813 A.2d 1003 (2003). Proxi-
mate cause is generally a factual determination for the
jury. Label Systems Corp. v. Aghamohammadi, 270
Conn. 291, 321, 852 A.2d 703 (2004).
The majority correctly states that ‘‘[t]he trial court
in this case did not address the issue of foreseeability,
although it was raised as part of an alternative ground
in the defendant’s motion to strike. This court fre-
quently has noted, however, that we are not required
to address the [issue of] foreseeability if we determine,
based on . . . public policy . . . that no duty of care
existed. Neuhaus v. DeCholnoky, 280 Conn. 190, 218,
905 A.2d 1135 (2006); see also Ryan Transportation,
Inc. v. M & G Associates, 266 Conn. 520, 529, 832 A.2d
1180 (2003); Gomes v. Commercial Union Ins. Co., 258
Conn. 603, 618 n.11, 783 A.2d 462 (2001).’’ (Internal
quotation marks omitted.)
In my view, it is important to analyze this quote in
the context of the cases cited. Neuhaus was a medical
malpractice case concerning the issue of whether the
plaintiffs’ complaints against the defendants were time
barred, or whether the statute of repose was tolled with
respect to either of the defendants by the continuing
course of conduct doctrine. In that case, we held that
‘‘[g]iven the fact that [the plaintiff] ceased to be under
[the defendants’] care subsequent to his birth, we agree
with the Appellate Court’s analysis and conclude that,
as a matter of public policy, [the defendant] did not
have a duty to warn [the plaintiff] of the known health
risks flowing from a diagnosis of respiratory distress
syndrome.’’ Neuhaus v. DeCholnoky, supra, 280 Conn.
218. Thus, the question in Neuhaus was whether the
court would impose a duty on the physician to warn
the patient after the termination of the doctor-patient
relationship.
Further, in Ryan Transportation, Inc., the plaintiff
did not allege any relationship with the defendant
beyond that of their commercial cotenancy. We held
that ‘‘[i]n light of our determination that there did not
exist a relationship involving [the defendant’s] custody
of or control over the plaintiff that would warrant the
imposition of a duty to protect the plaintiff from third
party conduct, we need not address the issue of foresee-
ability.’’ Ryan Transportation, Inc. v. M & G Associates,
supra, 266 Conn. 529. Again, we looked to the nature of
the initial relationship in order to determine the public
policy consideration.
Gomes involved a claim against a hotel clerk and
her employers for the clerk’s actions in, as alleged,
negligently preventing a hotel guest from ‘‘ ‘rendering
aid to the plaintiffs.’ ’’ Gomes v. Commercial Union
Ins. Co., supra, 258 Conn. 605. We held that, if we
allowed such a cause of action, ‘‘we would be shifting
the loss to parties who were not responsible for the
plaintiffs’ property damage. We note that our determina-
tion that public policy reasons militate against imposing
a duty of care on the hotel defendants is a fact-bound
determination and pertains only to the specific facts of
this case.’’ Id., 618. I note that Gomes cited, as authority
for this conclusion, Lodge v. Arett Sales Corp., 246
Conn. 563, 572, 717 A.2d 215 (1998), a case in which
this court concluded that an alarm company did not
owe a duty to firefighters injured as a result of the
transmission of a false alarm, and a case which, unlike
Gomes, was determined by a jury. In Lodge, We noted
that our conclusion that the ‘‘imposition of liability . . .
would be unreasonable [was] not based on a conclusion
that the defendants [were] entitled to immunity because
of their socially beneficial function. Rather, it [was]
a fact-bound determination based on the attenuation
between the plaintiffs’ harm and the defendants’ con-
duct.’’ Id., 585 n.16.
The foregoing cases demonstrate that the duty under
consideration is the initial duty which may or may not
be owed to the plaintiff. In my view, in the present
case, there can be no question that during the years
the defendant was treating the plaintiff, while the plain-
tiff was a minor, the defendant owed the plaintiff a
duty to render his services pursuant to the applicable
standard of care. The fact that the plaintiff suffered
consequences years later after the alleged breach of
that duty, does not change the fact that the initial duty
existed. The majority certainly cannot contest the fact
that the defendant, a licensed clinical social worker,
owed a duty to the plaintiff during the treatment period.
The majority’s conclusion that, ‘‘in the present case,
the defendant owed the plaintiff no duty’’ due to public
policy considerations becomes particularly problematic
when the public policy considerations do not address
this initial treatment, but rather the later conduct.
I also wonder why, if the prior decisions of this court
cited by the majority constantly emphasize that the
public policy considerations were fact-based determi-
nations based upon the peculiar facts of the individual
cases, we are not waiting for a jury or fact finder to
determine the facts, instead of deciding those cases on
the underdeveloped record of either a motion to strike
or a summary judgment?
In my view, it is unnecessary for this court to adopt
the wrongful conduct rule. Whether a plaintiff’s illegal
or wrongful conduct will limit a defendant’s liability to
foreseeable and reasonable bounds is already part of
Connecticut’s proximate cause analysis. See Barry v.
Quality Steel Products, Inc., supra, 263 Conn. 440–41.
In the context of medical malpractice, this court
addressed the issue of a physician’s liability for a
patient’s suicide in Edwards v. Tardif, 240 Conn. 610,
692 A.2d 1266 (1997). Some may argue that the act of
suicide is both intentional and wrongful. This court held
in Edwards, however, that liability exists if the suicide
is a foreseeable risk or falls within the general scope
of risk created by the failure to follow the requisite
standard of care. Id., 618 n.7. We also noted in Edwards
that ‘‘we have recently adopted the standard set forth
in § 442B of the Restatement [(Second) of Torts] that
[w]here the negligent conduct of the actor creates or
increases the risk of a particular harm and is a substan-
tial factor in causing the harm, the fact that the harm
is brought about through the intervention of another
force does not relieve the actor of liability, except where
the harm is intentionally caused by a third person and
is not within the scope of the risk created by the actor’s
conduct.’’ (Internal quotation marks omitted.) Id., 617.
We further opined that ‘‘[p]hysicians have a duty to
exercise the degree of care that physicians in that partic-
ular field would exercise in similar circumstances. If
the physician’s treatment of the patient falls below the
relevant standard of care, liability may be imposed if
it is reasonably foreseeable that suicide will result if
such care is not taken. Accordingly, we hold that a
physician may be liable for a patient’s suicide when the
physician knew or reasonably should have known of
the risk of suicide and the physician’s failure to render
adequate care and treatment proximately causes the
patient’s suicide.’’ Id., 618.
The wrongful conduct rule effectively negates the
Edwards holding. It focuses solely upon the plaintiff’s
conduct thereby completely ignoring the scope of risk
analysis incorporated in Connecticut’s causation law.
I see little difference between our holding in Edwards
and the situation in this case. The plaintiff has already
obtained an opinion from a similar health care provider
that the defendant ‘‘appears to have committed medical
negligence by failing to meet the standard of care
required of a [l]icensed [c]linical [s]ocial [w]orker.’’
Therefore, if it was reasonably foreseeable that the
plaintiff would continue to engage in the conduct of
viewing child pornography, the health care professional
could be found liable. This is a jury determination. The
rule adopted by the majority suggests that, because the
plaintiff’s conduct was against public policy, he cannot
win regardless of the culpability of the health care pro-
fessional by whom he was treated. Our ruling, in my
view, is tantamount to rewriting § 52-190a and has the
effect of overruling, sub silentio, Edwards.
II
I also disagree with the holding of the majority opin-
ion because I think that the wrongful conduct rule is
ill suited to tort actions and does not provide adequate
guidance to trial courts. Commentators have described
the wrongful conduct rule as a ‘‘barbarous relic of the
worst there was in puritanism.’’ F. Harper et al., Torts
(2d Ed. 1986) § 17.6, pp. 617–18. Its resurrection has
been further condemned as follows: ‘‘[M]oral indigna-
tion must not be mistaken for public policy. . . . The
obscure equitable doctrine ex turpi causa non oritur
actio should not be used in a misguided attempt to
blunt the litigation crisis in the United States or other
western common-law nations. . . . The law—and tort
law especially—does not distribute compensation
based on who is a good person and who is not. The ex
turpi causa defense blurs the lines between our gut
hesitation to aid a wrongdoer and the more important
public policies underlying tort law, allowing the former
to exert undue influence. The doctrine leads the courts
to focus improperly upon the punctilios of the plaintiff
rather than the public policy factors that should under-
lie a reasoned assignment of legal responsibility.’’ (Foot-
notes omitted; internal quotation marks omitted.) R.
Prentice, ‘‘Of Tort Reform and Millionaire Muggers:
Should An Obscure Equitable Doctrine Be Revived To
Dent the Litigation Crisis?’’ 32 San Diego L. Rev. 53,
132–33 (1995). ‘‘The serious misconduct doctrine oper-
ates not to produce predictability and certainty, but
perversely to inject chaos into the process and provide
fertile ground for exploitation and abuse.’’ J. King, ‘‘Out-
laws and Outlier Doctrines: The Serious Misconduct
Bar in Tort Law,’’ 43 Wm. & Mary L. Rev. 1011, 1018
(2002). ‘‘[A]s a freestanding doctrine, [it] lurks like a
rusting old tool in the crawl space beneath the core
tort elements and defenses. One is never quite sure
what its standing is or when its archaic blade will next
appear to dispatch a tort claim.’’ Id., 1063.
As set forth aptly in the amicus brief, several reasons
have been asserted as a basis for the rationale behind
the wrongful conduct rule, namely, that permitting such
actions would: (1) condone and encourage criminal
conduct; (2) allow the wrongdoer to profit from crimi-
nal conduct; (3) render the legal system as a mockery
of justice; and (4) allow wrongdoers to shift responsibil-
ity for the illegal acts on to other parties. In my view,
these reasons are not persuasive.
Adoption of the rule as a deterrent to criminal con-
duct is unrealistic. The rule’s application has been so
unpredictable that ‘‘no reasonable claim that ex turpi
causa will deter criminal action by plaintiffs can be
credibly made.’’ R. Prentice, supra, 32 San Diego L.
Rev. 114. Indeed, ‘‘most persons engaging in criminal
conduct do not expect to be injured in the process, at
least not by negligence, and therefore would seldom be
influenced by the thought of being barred from suing.’’ J.
King, supra, 43 Wm. & Mary L. Rev. 1045. Also, barring
tort recovery seems inconsequential when compared
to the deterrent effect of potential criminal sanctions.
Id. Consequently, the threat of criminal penalties serves
as a more effective deterrent for criminal conduct and,
therefore, the wrongful conduct rule does not add any
deterrent effect.
Likewise, ‘‘[t]he ‘may not profit’ rationale is conclu-
sory and unconvincing.’’ Id., 1044. Barring recovery
does not prevent a plaintiff from profiting from wrong-
doing. The basic purpose of tort law is ‘‘to restore an
injured party to the position he or she would have been
in if the wrong had not been committed.’’ (Internal
quotation marks omitted.) Rizzuto v. Davidson Lad-
ders, Inc., 280 Conn. 225, 248, 905 A.2d 1165 (2006). As
correctly noted in the amicus brief, ‘‘there is no profit
when one is simply made whole . . . .’’ (Internal quota-
tion marks omitted.)
‘‘Simply put, the moral characteristics of the parties
before a court have little or no relevance to that court’s
capacity to do justice or injustice.’’ R. Prentice, supra,
32 San Diego L. Rev. 122. Allowing a victim who was
engaged in illegal or wrongful conduct to receive com-
pensation due to injuries sustained through the negli-
gence of another does not taint the judicial process any
more than when a criminal’s conviction is overturned.
Id. Barring an alleged plaintiff’s negligence action, how-
ever, contaminates the court system by conferring
immunity on a tortfeasor merely because the tort was
done to someone engaged in illegal or wrongful con-
duct. See J. King, supra, 43 Wm. & Mary L. Rev. 1048.
As stated in the amicus brief, ‘‘[t]his is especially true
when a defendant’s negligent conduct proximately
causes the plaintiff’s injury by creating, or increasing,
the risk of foreseeable harm, despite the plaintiff’s ille-
gal or wrongful conduct. [The doctrines of both] proxi-
mate cause and comparative negligence serve to limit
a wrongdoer’s ability to completely shift responsibility
to others. The [wrongful] conduct rule does not operate
within this modern network. See, e.g., Sonoran Desert
Investigations, Inc. v. Miller, [213 Ariz. 274, 281, 141
P.3d 754 (App. 2006)]. The rule’s ultimate purpose is to
bar recovery. It does so by unjustifiably concentrating
solely on the plaintiff’s fault contrary to our legislative
scheme.’’ Therefore, I categorically reject the rationale
for the rule as being neither cogent nor in accord with
our state statutes. Where do we go from here? Is this
court to become the arbiter on a case-by-case basis
when conduct is so wrongful that a plaintiff should not
recover as a matter of public policy? At the very least,
should not the conduct relate to the claimed negligence?
I fear that we are opening the door to a doctrine that will
lead to inconsistent and, at times, unexplainable results.
Eleven other states have adopted the wrongful con-
duct rule in some form. Some of these states have
enacted statutes implementing the rule. For instance,
in California, pursuant to the personal responsibility
act codified in § 3333.3 of the California Civil Code
(Deering 2005), convicted felons are precluded from
recovering in negligence actions for injuries ‘‘in any
way proximately caused’’ during the commission of a
felony or during flight thereafter. See Jenkins v. Los
Angeles, 74 Cal. App. 4th 524, 527, 88 Cal. Rptr. 2d
149 (1999). Additionally, § 3333.4 of the California Civil
Code (Deering 2005) bars noneconomic, and other non-
pecuniary damages in automobile accidents if a plaintiff
is operating under the influence of drugs or alcohol, or
owned or operated a vehicle without proper insurance
or proof of financial responsibility. Oregon has also
enacted a statutory defense barring recovery in per-
sonal injury or death actions when the plaintiff was
engaged in a specific criminal activity. Or. Rev. Stat.
§ 31.180 (2013) (aggravated murder, murder, or class A
or B felony). A few of the other states would bar an
action ‘‘to those injured in the course of committing a
serious criminal act . . . .’’ (Citation omitted; internal
quotation marks omitted.) Izzo v. Manhattan Medical
Group, P.C., 164 A.D. 2d 13, 18, 560 N.Y.S.2d 644
(1990); see Oden v. Pepsi Cola Bottling Co. of Decatur,
Inc., 621 So. 2d 953, 955 (Ala. 1993) (public policy rule
bars actions ‘‘that were a direct result of the injured
party’s knowing and intentional participation in a crime
involving moral turpitude’’); Rimet v. Mortell, 680
N.E.2d 867, 874 (Ind. App.) (plaintiff’s criminal conduct
resulting in conviction bars plaintiff from imposing lia-
bility on others), transfer denied, 690 N.E.2d 1185 (Ind.
1997); Izzo v. Manhattan Medical Group, P.C., supra,
18 (fact that decedent drug addict forged prescription
did not automatically bar wrongful death claim against
pharmacy under wrongful conduct rule because plain-
tiff ‘‘lacked the capacity to know that it was wrong to
forge prescriptions’’); Feltner v. Casey Family Pro-
gram, 902 P.2d 206, 208–10 (Wyo. 1995) (public policy
precludes plaintiff from recovering injuries sustained
as direct result of serious violation of law). I note that
Alabama still adheres to the contributory negligence
doctrine as a complete bar to recovery. See Ex parte
Goldsen, 783 So. 2d 53, 56 (Ala. 2000). Further, in Indi-
ana, contributory negligence bars a medical malpractice
case against a physician. Cavens v. Zaberdac, 849
N.E.2d 526, 528 n.2 (Ind. 2006).
Unquestionably, under the facts of this case, the doc-
trine would not apply in many of these states, particu-
larly the cases cited by the majority, because there is
no allegation that the claimed injuries occurred while
the plaintiff was in the course of committing a crime.
The complaint alleges that the plaintiff’s house was
searched and that he was waiting to hear if he was
going to be arrested, and what would happen to him if
he were found guilty. It further states that he will incur
medical bills in the future. There is no claim for damages
as the result of injuries sustained during the commission
of a crime. Moreover, at least in the states that have
proscribed the action by way of statute, the statute
provides clear guidance and a defined public policy as
adopted by the legislature. In this case, although the
conduct is clearly illegal, we have no clearly defined
public policy by way of statute, ordinance, or regulation
to the effect that the plaintiff cannot either recover or
at least bring a civil action.
I note that in the context of labor arbitration proceed-
ings, when we search for a well-defined state public
policy we look to criminal statutes, noncriminal stat-
utes, city charters, professional conduct regarding
attorneys, and administrative regulations. We have
stated, however, that ‘‘[r]ather than requiring that public
policy to be grounded on a particular type of source,
however, in determining whether a party has satisfied
its burden of demonstrating the existence of a well-
defined public policy, we have instead focused our
inquiry on whether the alleged public policy is in fact
clearly discernible in the purported source.’’ (Internal
quotation marks omitted.) AFSCME, Council 4, Local
1565 v. Dept. of Correction, 298 Conn. 824, 838, 6 A.3d
1142 (2010); see also State v. AFSCME, Council 4, Local
391, 309 Conn. 519, 526–27, 69 A.3d 927 (2013). In my
view, this is a matter for the legislature and this court
should not be engaged in proscribing certain actions
on a case-by-case basis, especially when there is no
clearly defined public policy contained in any source
that would bar civil actions under the facts of this case.
The rule adopted by the majority is particularly harsh
in the sense that it imposes an additional civil penalty—
namely, not being able to bring an action and recover
damages—on the already existing statutory scheme of
criminal sanctions. This outcome has been criticized
as severe because it results in unequal punishment. See
R. Prentice, supra, 32 San Diego L. Rev. 116–18. Because
the rule’s bar to recovery is not necessarily dependent
upon the degree of illegal or wrongful conduct, unequal
civil penalties can arise from identical misconduct. The
rule also operates without the traditional criminal sys-
tem safeguards. ‘‘It is questionable indeed whether it
is wise for the courts to assume the responsibility of
imposing such a sanction when the legislature has not
seen fit to do so.’’ F. Harper et al., supra, § 17.6, p. 618.
III
The majority’s holding runs contrary to § 52-190a.
Section 52-190a (a) provides in relevant part that: ‘‘No
civil action or apportionment complaint shall be filed
to recover damages resulting from personal injury or
wrongful death occurring on or after October 1, 1987,
whether in tort or in contract, in which it is alleged
that such injury or death resulted from the negligence
of a health care provider, unless the attorney or party
filing the action or apportionment complaint has made
a reasonable inquiry as permitted by the circumstances
to determine that there are grounds for a good faith
belief that there has been negligence in the care or
treatment of the claimant. The complaint, initial plead-
ing or apportionment complaint shall contain a certifi-
cate of the attorney or party filing the action or
apportionment complaint that such reasonable inquiry
gave rise to a good faith belief that grounds exist for
an action against each named defendant or for an appor-
tionment complaint against each named apportionment
defendant. To show the existence of such good faith,
the claimant or the claimant’s attorney, and any appor-
tionment complainant or the apportionment complain-
ant’s attorney, shall obtain a written and signed opinion
of a similar health care provider, as defined in section
52-184c, which similar health care provider shall be
selected pursuant to the provisions of said section, that
there appears to be evidence of medical negligence
and includes a detailed basis for the formation of such
opinion. . . .’’ There is no provision in this statute bar-
ring certain classes of plaintiffs who may have engaged
in certain misconduct. According to the terms of the
statute, if there is a good faith belief on the part of
the attorney or claimant and a good faith certificate is
attached, the claimant can pursue his action. In my
view, this statute represents the public policy of the
state regarding malpractice actions. We should not be
rewriting the statute to say that even if a person qualifies
under the terms of the statute, that person cannot bring
an action if he or she has engaged in the wrongful
conduct of viewing child pornography. If the legislature
wishes to bar certain classes from the coverage of the
statute, it certainly knows how to insert the appropriate
language. As we have frequently stated, ‘‘it is a well
settled principle of statutory construction that the legis-
lature knows how to convey its intent expressly; e.g.,
Dept. of Public Safety v. Freedom of Information Com-
mission, 298 Conn. 703, 729, 6 A.3d 763 (2010); or to
use broader or limiting terms when it chooses to do
so. See, e.g., Stitzer v. Rinaldi’s Restaurant, 211 Conn.
116, 119, 557 A.2d 1256 (1989).’’ Scholastic Book Clubs,
Inc. v. Commissioner of Revenue Services, 304 Conn.
204, 219, 38 A.3d 1183, cert. denied, U.S. , 133 S.
Ct. 425, 184 L. Ed. 2d 255 (2012).
IV
Assuming, arguendo, that the majority is correct in
holding that the plaintiff’s wrongful conduct should bar
this claim, a proposition which I obviously oppose,
there is an additional allegation that has not been con-
sidered. The majority acknowledges that ‘‘[a]lthough
the complaint contains a single allegation that, because
of the defendant’s negligence, the plaintiff has and will
incur costs for mental health care necessary to his
recovery and maintenance, he has made clear in his
submissions to the trial court and this court that he is
not advancing a negligence claim independent of his
illegal conduct.’’ Respectfully, I disagree with the char-
acterization. In my view, the plaintiff is not seeking
damages for the legal consequences of his criminal acts.
He is seeking damages because the defendant’s alleged
negligent treatment failed to address his ‘‘habit’’ of view-
ing child pornography. It is axiomatic that he would
have to establish, at trial, that this negligence was the
proximate cause of any of his claimed damages. As the
majority indicates, the facts alleged in the plaintiff’s
amended complaint ‘‘are deemed admitted for purposes
of ruling on a motion to strike. See Murillo v. Seymour
Ambulance Assn., Inc., 264 Conn. 474, 476, 823 A.2d
1202 (2003).’’ ‘‘A motion to strike challenges the legal
sufficiency of a pleading, and, consequently, requires
no factual findings by the trial court. . . . [The court
takes] the facts to be those alleged in the [pleading]
. . . and . . . construe[s] the [pleading] in the manner
most favorable to sustaining its legal sufficiency. . . .
Thus, [i]f facts provable in the [pleading] would support
a cause of action [or special defense], the motion to
strike must be denied.’’ (Internal quotation marks omit-
ted.) Sullivan v. Lake Compounce Theme Park, Inc.,
277 Conn. 113, 117–18, 889 A.2d 810 (2006).
The plaintiff alleges, in his amended complaint dated
June 15, 2011, several grounds of negligence against
the defendant. He then alleges the following: ‘‘(13) The
plaintiff . . . faces being sentenced to a term of impris-
onment, serving a period of probation, registering as a
sex offender . . . and suffering the humiliation, public-
ity, embarrassment and economic repercussions . . . .
(15) As a consequence of the negligence and care-
lessness of the defendant . . . the plaintiff . . . has
been the target of a [police] raid and search of his
home and seizure of computers, cell phones and other
electronic devices. (16) As a consequence of the negli-
gence and carelessness of the defendant . . . the plain-
tiff . . . has incurred and in the future will be forced
to spend large sums of money for professional mental
health care including therapy and prescription drugs
necessary for his recovery and maintenance.’’ Clearly,
paragraphs 13 and 15 relate to the conduct that the
majority classifies as ‘‘wrongful.’’ Paragraph 16 is, how-
ever, a standard allegation in a malpractice action. It
can survive on its own, even if the court rules that the
wrongful conduct rule applies. The plaintiff reaffirms
this allegation in his brief when he states: ‘‘The plaintiff
has alleged as damages the need for ongoing therapy,
medications, humiliation, and emotional distress.’’ The
fact that the prime focus of the plaintiff’s argument was
related to the question of the ‘‘wrongful conduct’’ should
not prevent us from examining the entire complaint and
making a determination about the separate allegations
claimed as damages. Essentially, the complaint would
then read, if the offending paragraphs were removed,
that the defendant committed negligence and the plain-
tiff has to undergo additional treatment and incur bills
as a result thereof. I see no reason why this entire cause
of action should be stricken.
My opinion is buttressed by our law as it relates to
motions to strike. ‘‘The function of a motion to strike
is to test the legal sufficiency of a pleading, it admits
all facts well pleaded. See Practice Book § [10-39]. The
role of the trial court [is] to examine the [complaint],
construed in favor of the plaintiffs, to determine
whether the [pleading party has] stated a legally suffi-
cient cause of action.’’ (Internal quotation marks omit-
ted.) Dodd v. Middlesex Mutual Assurance Co., 242
Conn. 375, 378, 698 A.2d 859 (1997). Further, ‘‘[i]f any
facts provable under the express or implied allegations
in the plaintiff’s complaint support a cause of action
. . . the complaint is not vulnerable to a motion to
strike.’’ Bouchard v. People’s Bank, 219 Conn. 465, 471,
594 A.2d 1 (1991). Upon examination of the entire com-
plaint, in my view, paragraph 16, when coupled with
the negligence count contained in paragraph 14, states
a valid cause of action for medical malpractice. The
allegation contained in paragraph 16 has no relationship
to the ‘‘wrongful conduct’’ which the majority holds
violates the public policy of our state. My view is sup-
ported by the fact that we are obliged to construe the
complaint in favor of the plaintiff, to determine whether
the pleading party has stated a cause of action. In my
view, regardless of the wrongful conduct allegations,
the entire complaint should not have been stricken
because paragraphs 14 and 16 state a valid malpractice
claim for which the plaintiff submitted a good faith
certificate and opinion letter.
For all of the foregoing reasons, I would reverse the
judgment of the trial court, deny the defendant’s motion
to strike, and allow this case to proceed to a jury trial.
Accordingly, I respectfully dissent.