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LEE GREENWALD v. DAVID VAN HANDEL
(SC 19100)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Espinosa, Js.
Argued October 21, 2013—officially released April 15, 2014
James P. Brennan, for the appellant (plaintiff).
John F. Costa, with whom was Liam M. West, for
the appellee (defendant).
Kathryn Calibey filed a brief for the Connecticut
Trial Lawyers Association as amicus curiae.
Calum B. Anderson and Frank H. Santoro filed a
brief for the Connecticut Defense Lawyers Association
as amicus curiae.
Opinion
McDONALD, J. The sole issue in this appeal is
whether it would violate the public policy of this state
to allow the plaintiff, Lee Greenwald, to maintain a
professional negligence action against the defendant,
David Van Handel, a licensed clinical social worker, on
the basis of allegations that the defendant negligently
failed to treat the plaintiff after he disclosed to the
defendant that he had viewed child pornography. The
plaintiff alleges that the defendant’s failure to treat him
caused him to be subjected to a police task force raid
and led to emotional distress and other injuries due to
potential criminal prosecution. The trial court granted
the defendant’s motion to strike the plaintiff’s amended
complaint on the ground that it would violate public
policy to allow the plaintiff to profit from his own crimi-
nal acts. The plaintiff claims on appeal that this state
has not adopted a wrongful conduct rule that per se
bars tort recovery, and even if such a rule generally
applies, we should follow case law from another juris-
diction recognizing exceptions to that rule that are
applicable in the present case. We conclude that it is
unnecessary to adopt any broad rule or exceptions
thereto because it clearly would violate public policy
to impose a duty on the defendant in the present case
to protect the plaintiff from injuries arising from his
potential criminal prosecution for the illegal download-
ing, viewing and/or possession of child pornography.
Accordingly, we affirm the judgment of the trial court.
The plaintiff’s amended complaint alleged the follow-
ing facts, which 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). The plaintiff was a therapy patient of the
defendant from February, 1999, when the plaintiff was
seven years old, until October, 2008, when he was seven-
teen years old. On more than one occasion, the plaintiff
told the defendant during counseling sessions that he
was viewing child pornography on the Internet. The
defendant dismissed or ignored the plaintiff’s state-
ments, and the plaintiff continued to view child pornog-
raphy. As a result of the defendant’s failure to treat the
plaintiff in connection with this conduct, to refer the
plaintiff to another mental health professional for treat-
ment, or to notify the plaintiff’s parents of his dangerous
and criminal behavior, the plaintiff continued to view
child pornography on the Internet after he reached the
age of majority. In September, 2010, approximately two
years after the plaintiff ceased therapy treatment with
the defendant, the plaintiff’s home was raided by mem-
bers of a Connecticut State Police Task Force. The
police seized the plaintiff’s computers, backup hard
drives, and other electronic devices. At the time his
complaint was filed, the plaintiff was waiting to learn
if the police were going to issue a warrant for his arrest.
If found guilty of violating the criminal statutes prohib-
iting the downloading, viewing and/or possession of
child pornography, the plaintiff faced a term of impris-
onment and could suffer the humiliation, publicity,
embarrassment, and economic repercussions associ-
ated with the conviction and attendant registration as
a sex offender.1
The record reveals the following additional facts. In
January, 2011, the plaintiff brought this action, and in
June, 2011, amended his complaint, alleging that the
defendant’s failure to address his forays into child por-
nography when he was a minor led to his continued
viewing of child pornography and his home being raided
and searched by the police. The plaintiff further alleged
that, as a consequence of the defendant’s negligence,
he has spent, and will be required to continue to spend,
large sums of money on professional mental health care
for his recovery and maintenance. The defendant
moved to strike the plaintiff’s amended complaint, con-
tending, inter alia, that, as a matter of public policy,
Connecticut precludes recovery for the consequences
of one’s own criminal actions. Over the plaintiff’s objec-
tion, the trial court granted the defendant’s motion and
thereafter rendered judgment in his favor. This
appeal followed.
On appeal, the plaintiff argues that the trial court
improperly struck his complaint because, although Con-
necticut case law has applied a rule barring plaintiffs
from profiting from their own wrongdoing, those cases
are distinguishable. None of those cases involved a
plaintiff alleging professional negligence against a
health care provider that occurred when the plaintiff
was a minor. Moreover, they involved actions against
innocent defendants or coconspirators. In the absence
of applicable case law, the plaintiff urges this court
to look to case law of our sister states, specifically
Michigan, which recognizes exceptions to the wrongful
conduct rule that he contends are applicable in the
present case. The plaintiff contends that this court’s
reasoning in Edwards v. Tardif, 240 Conn. 610, 618,
692 A.2d 1266 (1997), holding that a physician could be
liable for a patient’s suicide when the risk of suicide was
foreseeable and the physician’s negligence proximately
caused the patient’s suicide, supports his claim that
he has the ability to proceed in the present case. We
conclude that, in light of the particular allegations in
this case, we need not adopt any sweeping rule or
exceptions thereto. Instead, we simply conclude that
it would violate public policy to impose a duty on the
defendant to protect the plaintiff from the injuries aris-
ing from the legal consequences of his admitted ille-
gal conduct.
‘‘A motion to strike challenges the legal sufficiency
of a pleading, and, consequently, requires no factual
findings by the trial court. As a result, our review of
the court’s ruling is plenary. . . . We take the facts to
be those alleged in the [pleading] that has been stricken
and we construe the [pleading] in the manner most
favorable to sustaining its legal sufficiency.’’ (Internal
quotation marks omitted.) Jarmie v. Troncale, 306
Conn. 578, 583, 50 A.3d 802 (2012).
Although both parties frame their public policy argu-
ments in the abstract, this court examines policy ques-
tions in negligence cases within the analytic framework
of the duty element.2 See, e.g., id., 598–99; Fraser v.
United States, 236 Conn. 625, 634, 674 A.2d 811 (1996).
‘‘Duty is a legal conclusion about relationships between
individuals, made after the fact, and imperative to a
negligence cause of action. The nature of the duty, and
the specific persons to whom it is owed, are determined
by the circumstances surrounding the conduct of the
individual. . . . Although it has been said that no uni-
versal test for [duty] ever has been formulated . . .
our threshold inquiry [is] whether the specific harm
alleged by the plaintiff was foreseeable to the defen-
dant. . . . A simple conclusion that the harm to the
plaintiff was foreseeable, however, cannot by itself
mandate a determination that a legal duty exists. Many
harms are quite literally foreseeable, yet for pragmatic
reasons, no recovery is allowed. . . . A further inquiry
must be made, for we recognize that duty is not sacro-
sanct in itself . . . but is only an expression of the sum
total of those considerations of policy which lead the
law to say that the plaintiff is entitled to protection.
. . . The final step in the duty inquiry, then, is to make
a determination of the fundamental policy of the law,
as to whether the defendant’s responsibility should
extend to such results.’’ (Internal quotation marks omit-
ted.) Jarmie v. Troncale, supra, 306 Conn. 590.
The 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 frequently 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). Thus, the plaintiff cannot prevail here unless
we conclude that it is the public policy of this state to
impose a duty on the defendant to protect the plaintiff
from injuries resulting from the police raid of his home
and impending prosecution as a consequence of his
downloading and viewing of child pornography.
This court has recognized the common-law maxims
that ‘‘[n]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 univer-
sal law administered in all civilized countries . . . .’’
(Internal quotation marks omitted.) Thompson v.
Orcutt, 257 Conn. 301, 316, 777 A.2d 670 (2001); see
also Gagne v. Vaccaro, 255 Conn. 390, 407, 766 A.2d
416 (2001) (‘‘[w]e recognize the broad general doctrine
founded on the maxim ex turpi causa non oritur actio—
no cause of action can arise out of an illegal or immoral
inducement’’). Although we have applied these princi-
ples in the contract and equity context; see, e.g., Thomp-
son v. Orcutt, supra, 316–18 (holding fraud committed
in bankruptcy court by foreclosing creditor barred
recovery under unclean hands doctrine on public policy
ground); Solomon v. Gilmore, 248 Conn. 769, 790–93,
731 A.2d 280 (1999), and cases cited therein (precluding
enforcement of contracts when plaintiffs had violated
statutory requirements governing such contracts); we
have never considered whether such principles apply
to negligence actions generally and, if so, whether limi-
tations to those principles should be recognized. But
see, e.g., Thompson v. Orcutt, supra, 310 (narrowing
application of doctrine of unclean hands to circum-
stances in which plaintiff’s cause of action ‘‘grows out
of or depends upon or is inseparably connected’’ to his
fraud or illegal transaction [internal quotation marks
omitted]).
Many of our sister states, however, have extended
these principles to tort actions. The generally articu-
lated 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 participa-
tion in a criminal act. See, e.g., Oden v. Pepsi Cola
Bottling Co. of Decatur, Inc., 621 So. 2d 953, 954–55
(Ala. 1993) (precluding father from pursuing products
liability claim against soft drink company when son
was killed tilting vending machine while attempting to
steal drinks); Orzel v. Scott Drug Co., 449 Mich. 550,
552–53, 558–59, 577, 537 N.W.2d 208 (1995) (precluding
plaintiff from recovering for addiction to methamphet-
amines on basis of pharmacy’s negligent and illegal
supply of drugs that plaintiff fraudulently had obtained);
Barker v. Kallash, 63 N.Y.2d 19, 25, 468 N.E.2d 39,
479 N.Y.S.2d 201 (1984) (precluding action on behalf
of minor, who suffered blast injuries while constructing
illegal pipe bomb, from recovering in action based on
negligent supply by other minor of gunpowder).3 As one
court explained: ‘‘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. Fourth, and finally, wrongdoers
would be able to shift much of the responsibility for
their illegal acts to other parties. . . . [W]here the
plaintiff has engaged in illegal conduct, it should be the
plaintiff’s own criminal responsibility which is determi-
native.’’ (Citation omitted; footnotes omitted; internal
quotation marks omitted.) Orzel v. Scott Drug Co.,
supra, 559–60.
The jurisdictions extending this rule to tort actions
have set certain limitations on its application. Courts
in many of these states have limited the rule’s applica-
tion to cases in which the plaintiff’s injuries stem from
conduct that is prohibited, as opposed to merely regu-
lated, by law, and the violation is ‘‘serious’’ or involves
‘‘moral turpitude.’’4 See, e.g., Oden v. Pepsi Cola Bot-
tling Co. of Decatur, Inc., supra, 621 So. 2d 955 (noting
rule is designed to prevent ‘‘those who knowingly and
intentionally engage in an illegal or immoral act involv-
ing moral turpitude from imposing liability on others
for the consequences of their own behavior’’); Orzel v.
Scott Drug Co., supra, 449 Mich. 561 (noting plaintiff’s
misconduct must ‘‘rise to the level of serious miscon-
duct sufficient to bar a cause of action’’); Barker v.
Kallash, supra, 63 N.Y.2d 25 (noting plaintiff ‘‘cannot
seek compensation for the loss, if the criminal act is
judged to be so serious an offense as to warrant denial
of recovery’’). In addition, courts have universally rec-
ognized that there must be a sufficient causal nexus
between the plaintiff’s illegal conduct and his alleged
injuries to bar recovery. See, e.g., Oden v. Pepsi Cola
Bottling Co. of Decatur, Inc., supra, 955 (precluding
‘‘any action seeking damages based on injuries that
were a direct result of the injured party’s . . . partici-
pation in a crime’’); Orzel v. Scott Drug Co., supra, 568
(noting plaintiff’s illegal conduct was ‘‘ ‘integral and
essential part of [his] case’ ’’ and contrasting case in
which plaintiff was permitted to pursue premises liabil-
ity action after falling into hole on premises where
she had engaged in illegal bingo game because game
‘‘merely served as an occasion for the injury,’’ as
opposed to being ‘‘proximate contributing cause of [the
plaintiff’s] asserted injuries’’); Barker v. Kallash, supra,
25 (noting plaintiff’s injury must be ‘‘direct result’’ of
his criminal act); see also 4 Restatement (Second), Torts
§ 889 (1979) (‘‘[o]ne is not barred from recovery for an
interference with his legally protected interests merely
because at the time of the interference he was commit-
ting a tort or a crime’’ [emphasis added]).
Although courts have had difficulty drawing these
lines in some cases,5 the present case causes no such
problems. The plaintiff has admitted to conduct that
constitutes a serious felony, and such conduct has a
direct causal connection to his alleged injuries. Accord-
ingly, there is no question that he would be barred from
recovering under this rule, despite whatever reasonable
limits might be imposed on its application. Indeed, with
a limited exception inapplicable to the present case, the
case law addressing circumstances in which a plaintiff
alleges that his or her felonious conduct was caused
by a mental health care provider’s negligence consis-
tently has concluded that the plaintiff’s felonious con-
duct barred his or her recovery.6 See, e.g., Burcina v.
Ketchikan, 902 P.2d 817, 819, 821 (Alaska 1995) (pre-
cluding psychiatric patient convicted of arson for set-
ting fire to mental health center from seeking
compensation from psychiatrist and mental health cen-
ter for injuries resulting from conviction and imprison-
ment); Rimert v. Mortell, 680 N.E.2d 867, 869, 876 (Ind.
App.) (precluding psychiatric patient found guilty of
murder but mentally ill from maintaining petition for
payment of excess damages from patient compensation
fund filed subsequent to settlement of medical malprac-
tice action against physician, who had released him
from hospital, for damages resulting from conviction),
transfer denied, 690 N.E.2d 1185 (Ind. 1997); Cole v.
Taylor, 301 N.W.2d 766, 768 (Iowa 1981) (precluding
psychiatric patient convicted of murder from main-
taining professional negligence claim against psychia-
trist for failing to prevent plaintiff from murdering
former husband); Guillie v. Comprehensive Addiction
Programs, Inc., 735 So. 2d 775, 777, 779 (La. App. 1999)
(precluding psychiatric patient from maintaining medi-
cal malpractice claim against hospital for damages
resulting from hospital’s misdiagnosis of patient’s bipo-
lar disorder which led to his termination after he stole
money from his employer); Glazier v. Lee, 171 Mich.
App. 216, 217, 221, 429 N.W.2d 857 (1988) (precluding
former patient convicted of manslaughter from main-
taining professional negligence action against psycholo-
gist for emotional injuries resulting from committing
crime).
Nonetheless, the plaintiff argues that we should adopt
certain exceptions to the wrongful conduct rule articu-
lated by the Michigan Supreme Court.7 Specifically, the
plaintiff points to Orzel v. Scott Drug Co., supra, 449
Mich. 569, in which the court held that, even if a plaintiff
has engaged in serious illegal conduct and such conduct
proximately caused his injuries, the plaintiff may still
seek recovery against the defendant under two circum-
stances: (1) when both parties have engaged in illegal
conduct, the plaintiff may pursue an action ‘‘if the defen-
dant’s culpability is greater than the plaintiff’s culpabil-
ity for the injuries, such as where the plaintiff has acted
under circumstances of oppression, imposition, hard-
ship, undue influence, or great inequality of condition
or age’’; (internal quotation marks omitted) id.; and (2)
when a plaintiff claims that the defendant has violated
a statute that explicitly or implicitly allows persons
similarly situated to the plaintiff to recover for injuries
suffered because of the defendant’s violation. Id., 570.
We conclude that we need not consider whether to
adopt these exceptions because even if we were to
assume, without deciding, that such exceptions apply,
the plaintiff would not satisfy them. With respect to
the exception for different degrees of culpability, the
essential predicate to this exception is that ‘‘both the
plaintiff and defendant have engaged in illegal conduct
. . . .’’ Id., 569. Only the plaintiff’s conduct was illegal
in the present case. Moreover, the allegations do not
suggest that the defendant was significantly more at
fault for the plaintiff’s injuries than the plaintiff himself.
See Stopera v. DiMarco, 218 Mich. App. 565, 571 n.5,
554 N.W.2d 379 (1996) (case involved ‘‘defendant who
was significantly more culpable than the plaintiff’’ for
losses suffered by plaintiff and therefore exception
applied), appeal denied, 455 Mich. 853, 567 N.W.2d 242
(1997). Although the plaintiff emphasizes the fact that
he was a minor at the time that he was under the
defendant’s professional care, he overlooks the signifi-
cance of his allegation that he already had engaged in
the illegal conduct prior to disclosing it to the defen-
dant. Accordingly, the defendant did not coerce or oth-
erwise induce the plaintiff to engage in the illegal
conduct. Cf. Morrison v. McCann, 301 F. Supp. 2d 647,
659–60 (E.D. Mich. 2003) (culpability exception to
wrongful conduct rule would have permitted action
against psychiatrist who had prescribed significant
quantities of drugs to plaintiff and then used position
to exert undue influence or otherwise coerce plaintiff
into engaging in adulterous sexual relationship, despite
fact that adultery was crime under state law). With
respect to the statutory violation exception, the plain-
tiff’s complaint does not allege a violation of any statute.
Indeed, although procedurally circumscribed by stat-
ute, medical malpractice claims are brought pursuant
to the common law. See Morgan v. Hartford Hospital,
301 Conn. 388, 397, 21 A.3d 451 (2011). Contrary to the
suggestion in the plaintiff’s brief to this court, General
Statutes § 52-184c codifies the common-law burden of
proof in a medical malpractice action and establishes
the parameters for proving the applicable standard of
care for health care providers. Moreover, there is no
language in § 52-184c suggesting an intent to override
the fundamental maxims of the common law and the
public policy of our state. See Neuhaus v. DeCholnoky,
supra, 280 Conn. 221 (noting ‘‘our courts routinely
examine whether to extend a duty to a particular defen-
dant, at least in part, in light of the policy considerations
at play in the case,’’ without redefining scope of defen-
dant’s duty in § 52-184c); Bird v. Plunkett, 139 Conn.
491, 496, 95 A.2d 71 (1953) (‘‘all laws . . . may be con-
trolled in their operation and effect by general, funda-
mental maxims of the common law’’ [internal quotation
marks omitted]).8 Accordingly, even if we were to adopt
the exceptions, both of them would be clearly inapplica-
ble in the present case.
Finally, we agree with other jurisdictions that have
concluded that the mere availability of common-law
or statutory comparative negligence, which permits a
plaintiff to recover even if his own negligence contrib-
uted to his injuries; see General Statutes § 52-572h (b);
does not negate application of the wrongful conduct
rule. As one court explained, comparative negligence
‘‘has no application to the [wrongful conduct] rule pre-
cluding a plaintiff from recovering for injuries sustained
as a direct result of his own illegal conduct of a serious
nature . . . . That rule is not based on the theory that
a plaintiff, with an otherwise cognizable cause of action,
cannot recover for an injury to which he has contributed
. . . . It rests, instead, upon the public policy consider-
ation that the courts should not lend assistance to one
who seeks compensation under the law for injuries
resulting from his own acts when they involve a substan-
tial violation of the law . . . . It simply means that
proof of such an injury would not demonstrate any
cause of action cognizable at law.’’9 (Citations omitted.)
Barker v. Kallash, supra, 63 N.Y.2d 28–29.
Based on our analysis of these fundamental principles
of tort law, we hold that irrespective of whatever limits
might be imposed by the wrongful conduct rule, it is
clear to this court that it would violate the public policy
of our state to impose a duty on the defendant to protect
the plaintiff from injuries arising from the legal conse-
quences of the plaintiff’s volitional criminal conduct,
unlawful viewing and downloading of child pornogra-
phy. Under the theory of recovery advanced by the
plaintiff, the more serious the criminal conduct, and
the more severe the attendant punishment, the greater
his recovery would be. It is self-evident why such a
result would contravene public policy. Moreover, ‘‘[t]he
fundamental policy purposes of the tort compensation
system [namely] compensation of innocent parties,
shifting the loss to responsible parties or distributing it
among appropriate entities, and deterrence of wrongful
conduct’’; (internal quotation marks omitted) Jarmie
v. Troncale, supra, 306 Conn. 599; would not be met by
imposing such liability on the defendant.
In reaching this conclusion, we underscore that we
do not hold that the defendant did not have a duty to
exercise reasonable care in his treatment of the plain-
tiff. Indeed, if the plaintiff sustained injuries indepen-
dent of the legal consequences of his criminal acts as
a result of the defendant’s negligent treatment of his
underlying mental condition, the wrongful conduct rule
would have no application. ‘‘The door of a court is not
barred because the plaintiff has committed a crime.
The confirmed criminal is as much entitled to redress
as his most virtuous fellow citizen; no record of crime,
however long, makes one an outlaw. The court’s aid is
denied only when he who seeks it has violated the law
in connection with the very transaction as to which
he seeks legal redress. Then aid is denied despite the
defendant’s wrong. It is denied in order to maintain
respect for law; in order to promote confidence in the
administration of justice; in order to preserve the judi-
cial process from contamination.’’ (Emphasis added;
footnote omitted.) Olmstead v. United States, 277 U.S.
438, 484, 48 S. Ct. 564, 72 L. Ed. 944 (1928) (Brandeis,
J., dissenting); accord 4 Restatement (Second), supra,
§ 889.
Although 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. Specifically, in response to both the
defendant’s motion to strike the complaint on the basis
of the wrongful conduct rule and the trial court’s deci-
sion striking the complaint solely on that basis, the
plaintiff never asserted that, even if the wrongful con-
duct rule applies, his complaint states an independent
basis for recovery to which the wrongful conduct rule
does not apply. Indeed, the plaintiff’s motion for recon-
sideration of the trial court’s decision granting that
motion and his briefs to this court both assume the
propriety of the trial court’s characterization of his
claim as seeking damages for the legal consequences
of his criminal acts and focus solely on application of
the wrongful conduct rule. The plaintiff acknowledged
at oral argument before this court that he did not assert
in his briefs an independent basis for recovery to which
the wrongful conduct rule does not apply. Therefore,
in the present case, we simply conclude that the plaintiff
cannot recover for mental distress and economic dam-
ages arising from the legal consequences of his admitted
serious criminality.10
The judgment is affirmed.
In this opinion ROGERS, C. J., and PALMER, ZARE-
LLA and ESPINOSA, Js., concurred.
1
According to Judicial Branch records, after the trial court granted the
defendant’s motion to strike the plaintiff’s complaint in which the plaintiff
admitted to viewing child pornography, the plaintiff pleaded guilty to the
charge of promoting a minor in an obscene performance in violation of
General Statutes § 53a-196b. He was sentenced to five years imprisonment,
execution suspended, followed by twenty years probation, and is listed on
Connecticut’s sex offender registry.
2
To the extent that the plaintiff argues that his claim should be analyzed
under the framework that this court applied in Edwards v. Tardif, supra,
240 Conn. 610, we disagree. The focus of Edwards was whether a patient’s
suicide was an act that broke the chain of causation between the defendant
physicians’ alleged malpractice and the patient’s death. Id., 615. The case
did not address the question of whether recovery would violate public policy,
and, more importantly, the case did not involve an individual profiting from
his or her own criminal wrongdoing. Although that case did address the
question of foreseeability; id., 616–18; as we later explain in this opinion,
we need not address that question in light of our determination that, in the
present case, the defendant owed the plaintiff no duty.
3
One jurisdiction has reached a contrary conclusion under facts similar
to Barker, except that the action was brought against the injured minor’s
social hosts, concluding that barring recovery on the basis of the plaintiff’s
wrongful conduct ‘‘would itself offend a countervailing public policy to the
extent it could also protect from possible liability those persons from whom
the firecrackers were obtained.’’ Flanagan v. Baker, 35 Mass. App. 444, 449,
621 N.E.2d 1190 (1993). This jurisdiction does, however, apply the wrongful
conduct rule where there is no strong countervailing public policy. See, e.g.,
Ryan v. Hughes-Ortiz, 81 Mass. App. 90, 94, 959 N.E.2d 1000 (2012) (barring
recovery for injuries from gunshot wound that occurred when decedent
attempted to steal handgun).
4
Similarly, several states have enacted statutes barring tort recovery by
plaintiffs whose injuries have resulted from their own illegal conduct, but
in some instances have limited this bar to certain types of crimes. See Alaska
Stat. § 09.65.210 (2012) (precluding recovery for personal injury or death
as result of, inter alia, commission of felony or operating vehicle or craft
while under influence of alcohol or drugs); Cal. Civ. Code § 3333.3 (Deering
2005) (‘‘[i]n any action for damages based on negligence, a person may not
recover any damages if the plaintiff’s injuries were in any way proximately
caused by the plaintiff’s commission of any felony, or immediate flight
therefrom, and the plaintiff has been duly convicted of that felony’’); Ohio
Rev. Code Ann. § 2307.60 (B) (2) (West 2004) (precluding recovery if plaintiff
convicted of felony or misdemeanor of violence that was proximate cause
of injury or loss); Or. Rev. Stat. § 31.180 (1) (a) (2013) (‘‘[i]t is a complete
defense in any civil action for personal injury or wrongful death that . . .
[t]he person damaged was engaged in conduct at the time that would consti-
tute aggravated murder, murder or a Class A or a Class B felony’’).
5
The limitations applied to the wrongful conduct rule have been subject
to criticism as fostering inconsistent results based on subjective line drawing
and for failing to account for competing policy concerns. See Dugger v.
Arredondo, 408 S.W.3d 825, 835–36 (Tex. 2013) (noting conflicts of applying
broad rule, including possible slippery slope restricting access to judicial
system and providing civil immunity to those who harm others ‘‘merely
because the claimant was not in compliance with every law at the time of
the tortious conduct’’); J. King, ‘‘Outlaws and Outlier Doctrines: The Serious
Misconduct Bar in Tort Law,’’ 43 Wm. & Mary L. Rev. 1011, 1017–18 (2002)
(‘‘the doctrine is operationally dangerous because it requires the court to
evaluate the plaintiff’s conduct through a moral prism trained on an ever-
changing social landscape and climate, resulting in the potential for selective
and arbitrary application’’ [emphasis omitted]). Compare Lemond Construc-
tion Co. v. Wheeler, 669 So. 2d 855, 858, 861 (Ala. 1995) (holding minor son’s
intentional participation in illegal joy ride that led to his death did not
preclude father from maintaining wrongful death action against construction
company), with Oden v. Pepsi Cola Bottling Co. of Decatur, Inc., supra,
621 So. 2d 955 (holding minor son’s attempt to steal drinks by tilting vending
machine that led to his death precluded father from maintaining products
liability claim against soft drink company).
6
In a few cases, courts have declined to apply the wrongful conduct rule
to negligence claims against mental health care providers when the plaintiff
lacked mental capacity at the time of the crime and thus could not have
knowingly and intentionally committed the crime. See O’Brien v. Bruscato,
289 Ga. 739, 741–43, 715 S.E.2d 120 (2011) (declining to apply wrongful
conduct rule because plaintiff was found to be incompetent to stand trial
and claimed to lack requisite mental capacity to commit murder); Bor-
uschewitz v. Kirts, 197 Ill. App. 3d 619, 623, 554 N.E.2d 1112 (declining to
apply wrongful conduct rule because plaintiff did not base her claim on her
own violation of criminal code due to her alleged insanity at time of crime),
appeal denied, 133 Ill. 2d 552, 561 N.E.2d 686 (1990). In the present case,
the plaintiff does not claim that he lacked the requisite mental capacity
required to commit the crimes that prohibit the viewing and downloading
of child pornography.
7
The defendant claims that this court should decline to consider the
plaintiff’s arguments regarding these exceptions because the plaintiff did
not advance them in his objection to the defendant’s motion to strike. To
the extent that the defendant is asserting a preservation argument, we
disagree. The trial court expressly recognized that there are limited excep-
tions to the wrongful conduct rule in other jurisdictions but noted that ‘‘[t]hey
are not discussed as none appear remotely applicable to the allegations in
this case.’’ Therefore, our consideration would not amount to a ‘‘trial by
ambuscade of the trial judge.’’ (Internal quotation marks omitted.) Schoon-
maker v. Lawrence Brunoli, Inc., 265 Conn. 210, 265, 828 A.2d 64 (2003).
8
To the extent that the plaintiff argues that the trial court in a recent
Superior Court case, Charette v. Malone, Superior Court, judicial district of
New Britain, Docket No. CV-09-5014422-S (February 27, 2012) (53 Conn. L.
Rptr. 629), implicitly relied on the statutory violation exception when it
denied the defendants’ motion for summary judgment based on public policy
grounds, we are not persuaded. In Charette, the trial court declined to ‘‘imply
a wrongful conduct exception into the statutes governing liability for medical
malpractice, because there is no basis for such an exception in the text of
those statutes’’; id., 630; and because ‘‘[t]he legislature has already taken
steps to deter wrongful conduct through our tort compensation system,
including the comparative fault statute.’’ Id., 631. Therefore, the court did
not rely on the statutory violation exception in reaching its decision, but
instead appears to have assumed that only the legislature could place limits
on a plaintiff’s right to recover due to the plaintiff’s wrongdoing. Because
medical malpractice is predicated on a common-law action procedurally
limited by statute, we disagree.
9
We are unaware of any state that has refused to apply the wrongful
conduct rule solely on the basis of the availability of common-law or statu-
tory comparative negligence principles, as the dissent suggests would be
appropriate. Two states have declined to apply the rule, however, in reliance
on either comparative negligence principles constitutionally mandated; see
Sonoran Desert Investigations, Inc. v. Miller, 213 Ariz. 274, 278–79, 281,
141 P.3d 754 (App. 2006); or such principles in conjunction with a statute
providing limits to the application of the wrongful conduct rule. See Dugger
v. Arredondo, 408 S.W.3d 825, 835–36 (Tex. 2013).
10
As we previously have indicated; see footnote 6 of this opinion; the
plaintiff does not allege that he lacks criminal responsibility for his actions
under the facts and law. Therefore, we have no occasion to consider whether
a plaintiff could recover for injuries arising from nonvolitional criminal
conduct. We simply conclude that injuries arising from volitional criminal
conduct cannot, as a matter of public policy, provide a basis for recovery.