AuthorDeBraccio, Steven V.

On September 1, 1975, New York State ended its tradition of contributory negligence defeating a plaintiff's civil action, no matter how slight. (1) The then-groundbreaking statute provides:

[i]n any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages. (2) Of course, even with CPLR 1411 in existence, there are still examples of cases where a plaintiff's conduct bars recovery entirely. (3) They include actions where the plaintiff's actions constitute the sole proximate cause or an unforeseeable superseding event of the accident, (4) and the defense of primary implied assumption of risk--the concept of "plaintiff's... agreement, express or implied, not to hold defendant responsible for the injury-causing act, negligent though it may have been, which resulted from plaintiff's entering into the activity with knowledge of its danger, or... [where] he or she should have had such knowledge." (5) By and large though, for the defense bar, aside from those fairly rare circumstances, a plaintiff's negligence is at most comparative fault and simply reduces the recovery.

However, one other basis for dismissal has survived CPLR 1411 and comparative fault: criminal act liability. As you will see, this defense has been applied to a number of criminally reckless acts, such as drag racing, (6) bomb making, (7) and carjacking. (8) However, this defense has never been applied to a simple case of drunk driving where the defendant does not owe some other duty to the plaintiff besides the duty to operate his or her vehicle with reasonable care. This Article explores the history of the defense, recent case developments, a brief history of drunk driving laws, and a case study and hypothetical the Court of Appeals has yet to answer: whether drunk driving, on its own, would bar a plaintiff's action in a motor vehicle accident, resulting in an action for negligence. Ultimately, this Article concludes that the defense should apply, but explains both sides of the debate.


    1. Historical Cases

      While there are three main cases that form the criminal act public policy defense, the first application of the concept of disallowing someone to recover for their own criminal acts dates at least back to the 19th century. In Riggs v. Palmer, (9) the decedent testator made out his will and "gave small legacies to his two daughters,... the plaintiffs[,]... and the remainder of his estate to his grandson, the defendant." (10) The defendant poisoned the testator and claimed the property, arguing that the testator was dead, that his will was "made in due form," and it had been admitted to probate. (11) The court, after considering then-contemporary commentaries, including Blackstone, concluded 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." (12) The court continued, "[t]hese maxims are dictated by public policy, have their foundation in universal law administered in all civilized countries, and have nowhere been superseded by statutes." (13)

      The Court of Appeals has stated that its first application of this public policy bar was in Reno v. D'Javid. (14) In Reno, the plaintiff sued the defendant-physician for performing an abortion, at her request, on June 6, 1970. (15) The First Department explained that "[s]uch operative procedure was illegal on the date performed and plaintiff, as well as defendant, was guilty of a criminal act as a result thereof." (16) It is clear that it was not until January 22, 1973, that such a procedure was constitutionally protected in any way." (17) It is interesting that the First Department, citing Riggs, discussed this defense in only a paragraph, (18) and the Court of Appeals affirmed the decision without any substantive comment (other than Justice Fuchsberg's dissent). (19)

    2. Barker v. Kallash

      The first of the three major cases for discussion is Barker v. Kallash. (20) In Barker, the plaintiff, a 15-year-old, was injured while constructing a pipe bomb and sued the defendant, a nine-year-old "who allegedly sold the firecrackers from which the plaintiff's companions extracted the gunpowder used to construct the bomb." (21) The plaintiff also sued another infant who allegedly sold the fire crackers to the nine-year-old defendant, and each of their parents for negligent supervision. (22) After depositions were taken, several of the defendants moved for summary judgment on the ground that the plaintiff was "barred from recovering for injuries sustained while engaged in wrongful or illegal conduct." (23) The Court of Appeals agreed and affirmed the grant of summary judgment and dismissal in favor of the defendants. (24)

      The court began its analysis by explaining that "a distinction must be drawn between lawful activities regulated by statute and activities which are entirely prohibited by law." (25) To that end, "a violation of a statute governing the manner in which activities should be conducted, would merely constitute negligence or contributory negligence." (26) However, in Barker, "when the plaintiff has engaged in activities prohibited, as opposed to merely regulated, by law, the courts will not entertain the suit if the plaintiff's conduct constituted a serious violation of the law and the injuries for which he seeks recovery were the direct result of that violation." (27) The court explained, "[i]n this latter instance recovery is denied, not because the plaintiff contributed to his injury, but because the public policy of this State generally denies judicial relief to those injured in the course of committing a serious criminal act." (28)

      The court then explained the narrow application of this rule: "[a] complaint should not be dismissed merely because the plaintiff's injuries were occasioned by a criminal act." (29) "However, when the plaintiff's injury is the direct result of his knowing and intentional participation in a criminal act he cannot seek compensation for the loss, if the criminal act is judged to be so serious an offense as to warrant denial of recovery." (30) The court then illustrated this principle by noting that a burglar who broke his leg while walking down some cellar stairs due to the failure of the homeowner to replace a missing step could not recover compensation from the property owner for his injuries because of the public policy bar. (31)

      The plaintiff in Barker gave three reasons that the public policy bar should not apply, but the court was unpersuaded by any of them. The plaintiff argued that his acts were "not so egregious" and that the injuries involved "nothing more than 'a claim arising out of injuries suffered by one of several youngsters playing with fireworks shortly before the Fourth of July.'" (32) The court rejected this argument, concluding that "the plaintiff's conduct may not be fairly characterized as a minor dereliction" of the law, explaining that "[b]y his own admission his injuries did not result from the mere use of firecrackers, but from his efforts to incorporate the gunpowder extracted from the firecrackers into a pipe bomb." (33) The court noted that "[c]onstructing a bomb is a far more dangerous activity not only to the maker, but to the public at large, and is treated as a far more serious offense under the law." (34) The court concluded that the conduct was sufficiently serious to apply the public policy bar. (35)

    3. Manning ex rel. Manning v. Brown

      The second case of the criminal act bar trilogy is Manning ex rel. Manning v. Brown. (36) In Manning, the plaintiff, Christina Manning, and her friend, defendant Karla Amidon, were high school students and "[n]either girl had a driver's license or learner's permit." (37)

      At around 8:00 P.M. [on April 21, 1993], plaintiff, [defendant] Amidon and a third girl were riding around town in a truck operated by a fourth friend when Amidon spotted a car belonging to defendants Ralph Brown and Julie Brown parked at a local community college... . [Defendant] Amidon asked that the truck be stopped so she could check the car for loose change. While rummaging around the console between the front seats, Amidon discovered a set of car keys underneath some papers. She started the car and invited her two girlfriends to join her. Plaintiff rode in the front passenger seat and gave directions as [defendant] Amidon drove. (38) At the time of the accident, plaintiff was in the passenger seat and defendant Amidon was driving. (39)

      Plaintiff then suggested that they adjust the car radio back to the station set by [defendant Ralph] Brown, presumably so that their use of the car would be undetected by the owner. [Defendant] Amidon... took her eyes off the road to adjust the radio. The car swerved and collided with a pole, injuring plaintiff. (40) Plaintiff commenced a negligence action against defendant Amidon and defendants Ralph Brown and Julie Brown. (41)

      This case is notable because plaintiff "pleaded guilty to charges relating to the theft of the vehicle but later withdrew her plea and was apparently never prosecuted." (42) This is an important indication that it does not matter whether the plaintiff was actually prosecuted for the criminal conduct he or she committed. Before turning to defendant Amidon's liability, defendants Ralph Brown and Julie Brown's liability was decided on a separate ground (43) (although it would seem that the criminal conduct bar would apply to these defendants as well)...

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