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
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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.
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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...
