Lee Greenwald v. David Van Handel (2012)

MEMORANDUM OF DECISION RE MOTION TO STRIKE

Preliminary Statement

This action arises out of the alleged professional negligence of the defendant, a licensed clinical social worker.   The plaintiff, a former patient, brings this suit as a negligent infliction of emotional distress claim, stemming from the defendant's failure to address or treat his predilection to view and download child pornography.   The plaintiff was apparently the target of a criminal investigation which resulted in the execution of a search warrant at his home and the seizure of his computers and electronic storage media.   He seeks compensation for the emotional distress associated with that event and the “wait and see” as to whether he will be arrested for possession of and downloading child pornography, conduct which he acknowledges in his complaint.   The defendant filed a motion to strike on public policy grounds.   He argues that it is the policy of this state and our courts that a person cannot profit from his own wrongdoing.   The plaintiff objects to the motion to strike;  acknowledges the unique and perhaps unprecedented nature of his claims, and argues that his action should proceed.   For the reasons set forth below, the motion is GRANTED.

Standard of Review

The role of the trial court in ruling on a motion to strike is to test the legal sufficiency of a pleading.  RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384 (1994).   The court must “examine the [complaint] construed in favor of the [plaintiff] 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 (1997).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Moreover, [w]hat is reasonably implied [in an allegation] need not be expressly alleged.”  (Citation omitted;  internal quotation marks omitted.)  Lombard v. Edward J. Peters, Jr., P.C. 252 Conn. 623, 626 (2000).

For purposes of the motion to strike, the moving party admits all facts well pleaded.  RK Constructors, Inc. supra at 383 n.2. The same is not so of legal conclusions and a motion to strike may be granted if the complaint alleges “mere conclusions of law that are unsupported by the facts alleged.”   Novametrix Medical Systems, Inc. v. BOC Group, Inc. 224 Conn. 210, 215 (1992).

Factual Allegations

The plaintiff alleges that while a minor, age 7, he became a patient of the defendant and received therapy services from him.   He alleges that he continued as a patient until October 2008.   He alleges that during therapy, he told the defendant that he was viewing child pornography on the internet but that the defendant took no action with respect to that disclosure.   He alleges that the defendant “dismissed or ignored” the plaintiff's statements in this regard.   Thereafter, the plaintiff alleges, he continued to view and download child pornography from the internet.   He alleges that this practice continued after he reached the age of majority.¹

On September 23, 2010, law enforcement officers “raided and searched” the plaintiff's home and seized computers, hard drives, electronic storage media and other items.   The plaintiff awaits word from law enforcement as to whether he will be arrested and charged with “downloading, possessing and or viewing child pornography.”

The injury for which the plaintiff seeks redress is the emotional distress occasioned by the execution of the search warrant and the anxiety associated with waiting to see if he is to be arrested.   The negligence he claims was in the defendant's failure to acknowledge, treat or address his disclosure, or the defendant's failure to disclose the anti-social and destructive behavior to the plaintiff's parents.   He attaches an opinion letter to support the allegations as well as the required certificate of good faith signed by counsel.

Discussion

Under our law, “No 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.”  Thompson v. Orcutt, 257 Conn. 301, 316 (2001) (applying doctrine of unclean hands on public policy grounds to prevent a plaintiff from retaining interest in or foreclosing on a mortgage that was fraudulently procured).   In Cotto v. Martinez, 26 Conn.Sup. 232 (1965), the court precluded a plaintiff from bringing an action to collect the proceeds of an illegal lottery drawing.   The Cotto court stated:  “It is the settled law of this State (and probably of every other State) that a party to an illegal contract cannot ask a court of law to help him carry out his illegal object, nor can such a person plead or prove in any court a case in which he, as a basis for his claim, must show forth his illegal purpose.”  Id. 26 Conn.Sup. at 236, quoting, Riggs v. Palmer, 115 N.Y. 506, 511–12 (1889).  “We are closing our courts to one who would prove his own wrongdoing as a basis for his supposed rights.”  Id.

In a variety of contexts, these principles appear well-rooted in Connecticut's jurisprudence.  Board of Education v. Local 566, Council 4, AFSCME, 43 Conn.App. 499, 504 (1996), appeal denied, 239 Conn. 957 (1997) (requiring the plaintiff to reinstate the grievant convicted of fraudulently diverting union funds to his own use is contrary to public policy);  State v. Council 4, AFSCME, 27 Conn.App. 635, 641 (1992) (“trial court properly found that the arbitration award contravened Connecticut's public policy of not countenancing the knowing misappropriation of state moneys by state officials or employees”).  “This deeply rooted principle [that no person may take advantage of his own wrong] has been applied in many diverse classes of cases by both law and equity courts ․” Habetz v. Condon, 224 Conn. 231, 238 (1992).   See also, Ford v. Anderson, Superior Court, judicial district of Hartford, Docket No. CV 00 0804029 (October 29, 2003, Beach, J.) (“[O]ne accepting hush money cannot ․ seek redress from the court to compel the payment of more money”);  Cogswell v. Paige, 34 Conn. L. Rptr. 683 (May 22, 2003, D'Andrea, J.T.R.) (Coconspirators in an illegal scheme to defraud an elderly woman cannot enforce the illegal agreement or otherwise seek redress through use of the courts).

This court has not located any cases factually similar to the allegations contained in this complaint.   A review of cases from other states which adhere to these maxims however, was more instructive.   As a matter of public policy, those who would seek compensation for injuries occasioned by their own criminal conduct are generally turned away at the courthouse door.²

In Burcina v. City of Ketchikan, 902 P.2d 817 (Alaska, 1995), the plaintiff sued his mental health provider alleging professional negligence, which he claimed caused him to commit an arson for which he was later convicted.   The Supreme Court of Alaska noted:  “This court has recognized the public policy principle which precludes a person who has been convicted of a crime from imposing liability on others for the consequences of that antisocial conduct ․ [R]ecovery is precluded at the ‘very threshold of the plaintiff's application for judicial relief.’  “ Id. 902 P.2d at 820, quoting, Lord v. Fogcutter Bar, 813 P.2d 660, 663 (Alaska, 1991).   Similarly, in Cole v. Taylor, 301 N.W.2d 766 (Iowa, 1981), the plaintiff brought a professional negligence action against her psychiatrist on the theory that the defendant's treatment did not prevent the plaintiff from murdering her former husband.   The Iowa Supreme Court held that “it would be plainly and simply wrong, as a matter of public policy to allow recovery.”  Id. at 768.

In Orzel v. Scott Drug Co., 449 Mich. 550, 537 N.W.2d 208 (1995), the Michigan Supreme Court held that under the so-called “wrongful-conduct rule,” a plaintiff could not sue a pharmacy for negligently filling the bogus or fraudulently obtained prescriptions he submitted.   The Court identified the rationale and public policy supporting its conclusion:

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.  Radikopf at 89, 228 N.W.2d 386.   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.   As stated by the Court of Appeals, where the plaintiff has engaged in illegal conduct, it should be the “plaintiff's own criminal responsibility which is determinative.”  Glazier at 221, 429 N.W.2d 857.

Id. 559–60.

While some of these cases involve post-conviction claims, this court sees no basis upon which to distinguish them on this basis.   The plaintiff's complaint contains an admission of the criminal conduct the current consequences of which are the basis of his claimed injury.³  See also, Rimert v. Mortell, 680 N.E.2d 867 (Ind.App.1997) (After psychiatric patient was found guilty of murder but mentally ill, the court denied patient's medical malpractice recovery against his physician, but noted that if patient had been found not guilty by reason of insanity, he would bear no criminal responsibility for his acts and his civil action could not be barred by public policy.); ⁴  Guillie v. Comprehensive Addiction Programs, Inc., 735 So.2d 775 (La.App.1999) (Court denied plaintiff's negligence and malpractice claims against defendant including that defendant's misdiagnosis of plaintiff's bipolar disorder led to his termination after he stole money from his employer);  Feltner v. Casey Family Program, 902 P.2d 206 (Wyo.1995) (No recovery was permitted against a foster care program which was brought by foster parents and their biological son for alleged damages arising out of the son's conviction for sexual assault of a minor female foster child placed in parents' care by defendant program);  Lord v. Fogcutter Bar, 813 P.2d 660 (Alaska 1991) (No recovery was permitted in a dram shop suit against a bar and bartender where allegations include that the plaintiff suffered injury when he was convicted of raping a woman he left the bar with while intoxicated);  Oden v. Pepsi Cola Bottling Co., 621 So.2d 953 (Ala.1993) (No recovery was permitted in a product liability action against soft drink manufacturer and vending machine owner for damages to a child who died when soft drink machine fell on him, because the injuries were a direct result of child's knowing attempt to steal soft drinks from the machine);  Kaminer v. Eckerd Corp., 966 So.2d 452 (Fla.App.2007) (Decedent's estate could not succeed in a claim against defendant pharmacy because decedent's own criminal conduct in ingesting illicit drugs that his friend had stolen absolved defendant pharmacy of liability);  Whittemore v. Owens–Healthcare Retail, 185 Cal.App. 1194, 111 Cal.Rptr.3d 227 (2010) (Plaintiff could not succeed in claim against pharmacy where the plaintiff voluntarily and illegally purchased prescription drugs from a pharmacy employee);  Adkinson v. Rossi Arms Co., 659 P.2d 1236 (Alaska 1983) (Plaintiff could not bring an action for negligence and breach of warranty against manufacturer and seller of shotgun where plaintiff was convicted of intentionally shooting a third person with the gun);  Tate v. Derifield, 510 N.W.2d 885 (Iowa 1994) (The wife of an incarcerated person could not bring an action for loss of consortium against police informant and drug task force because the wife's claim relied, in part, upon her husband's criminal conduct);  Blain v. Doctor's Co., 222 Cal.App.3d 1048, 272 Cal.Rptr. 250 (1990) (Doctrine of unclean hands precluded legal malpractice claim predicated upon injuries caused when a physician-defendant in a medical malpractice action followed the advice of his lawyer to lie at a deposition);  Kirkland v. Mannis, 55 Ore.App. 613, 639 P.2d 671, cert. denied, 292 Ore. 863, 648 P.2d 850 (1982) (Doctrine of unclean hands precluded convicted criminal from recovering in a legal malpractice action against his attorney alleging that his attorney persuaded him to testify falsely because claimant admitted that he cooperated in the perjury);  Barker v. Kallash, 63 N.Y.2d 19, 468 N.E.2d 39, 479 N.Y.S.2d 201 (1984) (Parents of a boy injured while making a pipe bomb could not recover from the child who supplied the gunpowder because the injuries were sustained while the son was engaged in an illegal activity).

Here, the plaintiff alleges professional negligence which caused him emotional distress when law enforcement raided his home as a result of his downloading of child pornography.   In order to succeed, he must rely upon and establish his own criminal conduct.   His alleged injuries flow directly from that conduct.   Public policy cannot countenance such a claim.   The motion to strike is GRANTED.

K.A. Dooley

2–16–12

FOOTNOTES

FN1. The dates contained in the complaint establish that the plaintiff was no longer a patient of the defendant at the time he reached the age of majority..  FN1. The dates contained in the complaint establish that the plaintiff was no longer a patient of the defendant at the time he reached the age of majority.

FN2. The cases identified limited exceptions to this general rule.   They are not discussed as none appear remotely applicable to the allegations in this case.   Nor were any exceptions to the rule advanced or argued by plaintiff..  FN2. The cases identified limited exceptions to this general rule.   They are not discussed as none appear remotely applicable to the allegations in this case.   Nor were any exceptions to the rule advanced or argued by plaintiff.

FN3. That the plaintiff should bring such a claim while the criminal investigation is ongoing;  while he awaits word of whether he is going to be arrested, when he enjoys not only the presumption of innocence but a 5th amendment privilege against self-incrimination is astonishing.   He admits the very conduct which could occasion his arrest, conviction, incarceration and registration as a sex offender..  FN3. That the plaintiff should bring such a claim while the criminal investigation is ongoing;  while he awaits word of whether he is going to be arrested, when he enjoys not only the presumption of innocence but a 5th amendment privilege against self-incrimination is astonishing.   He admits the very conduct which could occasion his arrest, conviction, incarceration and registration as a sex offender.

FN4. There is no claim or even suggestion that the plaintiff here is legally insane..  FN4. There is no claim or even suggestion that the plaintiff here is legally insane.

Dooley, Kari A., J.