GREENWALD v. VAN HANDEL

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Supreme Court of Connecticut.

Lee GREENWALD v. David VAN HANDEL.

No. 19100.

Decided: April 15, 2014

ROGERS, C. J., and PALMER, ZARELLA, EVELEIGH, McDONALD and ESPINOSA, Js. 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.

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 criminal 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 jurisdiction 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 downloading, viewing and/or possession of child pornography. Accordingly, we affirm the judgment of the trial court.

The plaintiff's amended complaint alleged the following 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 seventeen 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 statements, and the plaintiff continued to view child pornography. 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 treatment, 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 members 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 prohibiting the downloading, viewing and/or possession of child pornography, the plaintiff faced a term of imprisonment and could suffer the humiliation, publicity, embarrassment, and economic repercussions associated 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 pornography 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, contending, 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 objection, 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 Connecticut 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 arising from the legal consequences of his admitted illegal 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 arguments in the abstract, this court examines policy questions in negligence cases within the analytic framework of the duty element.2 See, e.g., id., at 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 universal test for [duty] ever has been formulated ․ our threshold inquiry [is] whether the specific harm alleged by the plaintiff was foreseeable to the defendant․ 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 sacrosanct 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 omitted.) Jarmie v. Troncale, supra, 306 Conn. at 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 universal 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 principles in the contract and equity context; see, e.g., Thompson v. Orcutt, supra, at 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 limitations to those principles should be recognized. But see, e.g., Thompson v. Orcutt, supra, at 310 (narrowing application of doctrine of unclean hands to circumstances 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 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. 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 methamphetamines 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 determinative.” (Citation omitted; footnotes omitted; internal quotation marks omitted.) Orzel v. Scott Drug Co., supra, at 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 application to cases in which the plaintiff's injuries stem from conduct that is prohibited, as opposed to merely regulated, by law, and the violation is “serious” or involves “moral turpitude.”4 See, e.g., Oden v. Pepsi Cola Bottling Co. of Decatur, Inc., supra, at 621 So.2d 955 (noting rule is designed to prevent “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”); Orzel v. Scott Drug Co., supra, at 449 Mich. 561 (noting plaintiff's misconduct must “rise to the level of serious misconduct sufficient to bar a cause of action”); Barker v. Kallash, supra, at 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 recognized 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, at 955 (precluding “any action seeking damages based on injuries that were a direct result of the injured party's ․ participation in a crime”); Orzel v. Scott Drug Co., supra, at 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 liability 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, at 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 committing 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. Accordingly, 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 consistently has concluded that the plaintiff's felonious conduct barred his or her recovery.6 See, e.g., Burcina v. Ketchikan, 902 P.2d 817, 819, 821 (Alaska 1995) (precluding psychiatric patient convicted of arson for setting fire to mental health center from seeking compensation from psychiatrist and mental health center for injuries resulting from conviction and imprisonment); 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 malpractice 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 maintaining professional negligence claim against psychiatrist 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 medical malpractice claim against hospital for damages resulting from hospital's misdiagnosis of patient's bipolar 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 maintaining professional negligence action against psychologist for emotional injuries resulting from committing crime).

Nonetheless, the plaintiff argues that we should adopt certain exceptions to the wrongful conduct rule articulated by the Michigan Supreme Court.7 Specifically, the plaintiff points to Orzel v. Scott Drug Co., supra, at 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 circumstances: (1) when both parties have engaged in illegal conduct, the plaintiff may pursue an action “if the defendant's culpability is greater than the plaintiff's culpability for the injuries, such as where the plaintiff has acted under circumstances of oppression, imposition, hardship, 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., at 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., at 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 significance of his allegation that he already had engaged in the illegal conduct prior to disclosing it to the defendant. Accordingly, the defendant did not coerce or otherwise 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 plaintiff's complaint does not allege a violation of any statute. Indeed, although procedurally circumscribed by statute, 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. at 221 (noting “our courts routinely examine whether to extend a duty to a particular defendant, at least in part, in light of the policy considerations at play in the case,” without redefining scope of defendant's duty in § 52–184c); Bird v. Plunkett, 139 Conn. 491, 496, 95 A.2d 71 (1953) (“all laws ․ may be controlled in their operation and effect by general, fundamental 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 inapplicable 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 contributed 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 precluding 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 consideration 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 substantial 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, at 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 consequences of the plaintiff's volitional criminal conduct, unlawful viewing and downloading of child pornography. 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. at 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 plaintiff. Indeed, if the plaintiff sustained injuries independent 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 judicial 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 decision striking the complaint solely on that basis, the plaintiff never asserted that, even if the wrongful conduct 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 reconsideration 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 damages arising from the legal consequences of his admitted serious criminality.10

The judgment is affirmed.

In this opinion ROGERS, C. J., and PALMER, ZARELLA and ESPINOSA, Js., concurred.

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 equitable 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 inducement.” 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 plaintiff'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 insufficient 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 persons who have been unsuccessfully treated for an addiction to the point that, even where a health care professional is of the opinion that the medical professional 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 pornography, 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 associated with such addictions is proscribed by state statute. Where does this court differentiate between the offensive conduct in violation of a state statute that prohibits a malpractice action and the offensive conduct in violation 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 Matarazzo 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 correct 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 further 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 lawbreaker.” 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 negligence.” (Internal quotation marks omitted.) “[T]he principles 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, at 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 therapist 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 majority 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 comparative negligence statute, however, did the legislature determine that either certain types of conduct or certain classes of people would not be subject to the comparative 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 pornography, 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 overreaching our boundaries and setting a dubious precedent.

It is axiomatic that causation is essential to any malpractice action. See Boone v. William W. Backus Hospital, 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). Proximate 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 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).” (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. at 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. at 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. at 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 determination 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., at 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' conduct.” Id., at 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 plaintiff 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 determinations 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. at 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., at 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 substantial 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., at 617. We further opined that “[p]hysicians have a duty to exercise the degree of care that physicians in that particular 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., at 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 professional 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 opinion 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 indignation 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 underlie a reasoned assignment of legal responsibility.” (Footnotes 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 operates not to produce predictability and certainty, but perversely to inject chaos into the process and provide fertile ground for exploitation and abuse.” J. King, “Outlaws 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., at 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 criminal conduct; (3) render the legal system as a mockery of justice; and (4) allow wrongdoers to shift responsibility 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 conduct 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 conclusory and unconvincing.” Id., at 1044. Barring recovery does not prevent a plaintiff from profiting from wrongdoing. 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 quotation 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 compensation due to injuries sustained through the negligence 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, however, contaminates the court system by conferring immunity on a tortfeasor merely because the tort was done to someone engaged in illegal or wrongful conduct. 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 illegal or wrongful conduct. [The doctrines of both] proximate 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 conduct 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 personal 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 App. Div.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 liability 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 plaintiff “lacked the capacity to know that it was wrong to forge prescriptions”); Feltner v. Casey Family Program, 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 Indiana, 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 doctrine would not apply in many of these states, particularly 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 proceedings, when we search for a well-defined state public policy we look to criminal statutes, noncriminal statutes, 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 system 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 pleading or apportionment complaint shall contain a certificate 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 apportionment complaint against each named apportionment defendant. To show the existence of such good faith, the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant'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 barring 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 legislature knows how to convey its intent expressly; e.g., Dept. ofPublic Safety v. Freedom of Information Commission, 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., 133S.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 considered. 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 characterization. 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 viewing 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 omitted.) 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 imprisonment, serving a period of probation, registering as a sex offender ․ and suffering the humiliation, publicity, embarrassment and economic repercussions․ (15) As a consequence of the negligence and carelessness 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 negligence and carelessness of the defendant ․ the plaintiff ․ 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, however, 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 plaintiff 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 sufficient cause of action.” (Internal quotation marks omitted.) 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 complaint, 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 supported 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.

FOOTNOTES

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. at 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., at 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., at 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 constitute 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 Construction 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); Boruschewitz 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 exceptions 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., at 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., at 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 statutory 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.

McDONALD, J.

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