Outlaws and outlier doctrines: the serious misconduct bar in tort law.

• Author: King, Joseph H., Jr.
• Position: Tort claims arising out of plaintiff's wrongdoing

God fashioned the ship of the world carefully With the infinite skill of an all-master.... Then--at fateful time--a wrong called, And God turned, heeding. Lo, the ship, at this opportunity, slipped slyly, Making cunning noiseless travel down the ways. So that, forever rudderless, it went upon the seas Going ridiculous voyages, Making quaint progress, Turning as with serious purpose Before stupid winds.

Stephen Crane (1)

INTRODUCTION

In ancient and early English legal lore, continuing into the twelfth century, (2) a serious criminal could be decreed Wolveseved, (3) or outlaw. He was thus cast, according to its medieval incantation, as caput lupinum (4) or figuratively bearing the head of the wolf. (5) Then, according to Blackstone, he "might be knocked on the head like a wolf, by any one that should meet him." (6) Other commentators were more vivid in their description, saying "[i]t is the right and duty of every man to pursue him, to ravage his land ... [and] hunt him down like a wild beast and slay him; for a wild beast he is; not merely is he a `friendless man,' he is a wolf." (7)

The rationale for the harsh Wolveseved decree for a transgressor was that "having renounced all law, he was to be dealt with as in a state of nature, when every one that should find him might slay him." (8) Some scholars even purport to find this type of process underlying some biblical events. (9) The decree of caput lupinum and outlawry was not, however, an expression of a strong legal system. Quite the contrary, such ready recourse to the outlawry mantle was a manifestation of a weak system of laws, (10) and the lack of refined humane legal structures with which to tailor punishments. It has been noted that "recourse to outlawry is ... one of the tests by which the relative barbarousness of various bodies of ancient law may be measured." (11) But, "[g]radually law learns how to inflict punishment with a discriminating hand." (12) Eventually, outlawry lost its "exterminating character" (13) and was, in that extreme form at least, abandoned "to avoid such inhumanity." (14)

Although the extreme notion of caput lupinum has largely lost its legal standing as a general principle, especially in the United States, an artifact remains. An increasing number of courts have, to varying degrees, recognized a special doctrine barring unintentional (15) tort claims arising out of a plaintiff's serious (usually criminal) wrongdoing. This cabalistic and aperiodic doctrine, which I will refer to as the serious misconduct bar, had for years largely operated below the radar screen of much of the legal community. During the era when traditional contributory negligence and its implied assumption of risk cousin constituted complete bars to tort recovery, (16) the serious misconduct bar was to a great extent subsumed into those more mainstream outcome-determinative defenses. (17) Following the emergence of comparative fault in most jurisdictions, (18) however, contributory negligence no longer necessarily constituted an automatic complete bar to a plaintiff's recovery. (19) Once the complete bar husk of traditional contributory negligence was peeled away by the ascendancy of comparative fault, the question of the previously submerged serious misconduct rule remained. This atavistic doctrine survives today, existing as a torts quintessence apart from the traditional elements and defenses of tort law. It operates as a freestanding construct, lurking in the crawl space beneath both the traditional torts elements and the defenses based on plaintiff's fault, such as contributory and comparative negligence. (20)

We are beginning to see signs of renewed interest in the serious misconduct bar as a way for defendants to definitively short-circuit a lawsuit and thus avoid the partial damages awards under comparative fault regimes. Moreover, despite pronouncements of its demise, (21) the serious misconduct doctrine has shown signs of reemergence in a wide spectrum of personal injury cases and legal malpractice claims arising out of defense of criminal prosecutions. (22) Because the serious misconduct bar was, for much of its desultory history, largely subsumed into the contributory negligence defense, (23) it is difficult to reliably gauge its current standing. It has been a torpid doctrine, like a subacute but chronic infection, only partially and temporarily suppressed. It lies dormant for a while at one location, only to rear its head somewhere else.

To further cloud the subject, the courts have not clearly identified or articulated a convincing rationale for the serious misconduct bar. The most common explanation for the doctrine is that the law will not allow a wrongdoer whose injury arises out of his serious misconduct to "benefit" from his wrongdoing by recovering damages from a tortfeasor who otherwise might be liable for causally contributing to the injury. (24) As will be discussed, I believe that these and other ostensible justifications for the doctrine are specious. More centrally, I think the serious misconduct bar is objectionable on more fundamental grounds. First, the doctrine frustrates the policy goals of tort law. Second, it is instrumentally flawed because it moves decision makers out of the established elemental and comparative fault torts framework into an ad hoc and potentially selective process. Third, the serious misconduct bar suffers structurally from the absence of lucid, predictable, or workable standards guiding its application. Finally, 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.

The danger of this doctrine lies in its reductive simplicity. It contemplates the kind of ad hoc moral judgments that are inherently subjective. They are also selective, in the sense that we usually (25) do not otherwise inquire into the moral fiber of the plaintiff. The medieval flavor and purple lingo of the serious misconduct doctrine may help explain its slippery survival. Remember Camus's admonition, that when "tricks of language contribute to maintaining an abuse that must be reformed or a suffering that can be relieved, then there is no other solution but to speak out and show the obscenity hidden under the verbal cloak." (26) 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.

In the sections that follow I will briefly examine the problematic underpinnings of the serious misconduct bar. My purpose here is not to comprehensively survey the national case law or that of any particular state. Next, I will evaluate some of the manifold arguments that have been advanced in support of the doctrine. I will then explain my thesis that the serious misconduct doctrine should be eliminated as a freestanding bar to liability in tort claims.

1. CURRENT INCARNATION

   1. Vague Vestiges

      At one time serious criminals were deemed outlaws, figuratively bearing, according to the medieval incantation, "caput lupinum" or the wolf's head. (27) But, over the years, the law and judicial attitudes changed, at least in the United States, so that in general persons who have committed crimes do not ipso facto lose the protection of the rule of law for all purposes. (28) Yet, for the purposes of tort claims arising out of the plaintiff's commission of a serious crime or misconduct, a growing number of cases deem the plaintiff an outlaw of sorts. (29) According to the doctrine, sometimes a person who violates criminal laws (or perhaps otherwise engages in especially serious misconduct) is "treated as something of an outlaw who ... is disentitled to seek redress through the courts for any injury to which his criminal conduct contributed." (30)

      Most commentators trace the obscure origins of the serious misconduct bar to contract law. (31) Traditionally, a contract might be deemed unenforceable "if either its formation or its performance is criminal, tortious, or otherwise opposed to public policy." (32) Perhaps to lend the doctrine an air of respectability and intellectual standing, the doctrine is often characterized as an emanation of the Latin contract maxim ex turpi causa non oritur, (33) which, as expansively interpreted to reach tort, would mean essentially, "that no lawsuit may be brought by a person who has committed an illegal or immoral act." (34) In fact, the serious misconduct doctrine is occasionally and variously referred to not only as the "outlaw" doctrine, (35) but also as the "ex turpi" (36) rule.

      For decades the serious misconduct doctrine largely lay dormant in tort law with few cases explicitly addressing it. This was probably a function of the fact that contributory negligence operated in binary fashion, either completely barring plaintiff's claim, or not at all. (37) The serious misconduct doctrine had essentially the same effect as contributory negligence, and was thus largely subsumed into the broader contributory negligence defense. (38) With the widespread adoption of comparative fault, one might have expected the doctrine, shorn of the cover of the complete bar rule of contributory negligence, to have withered and died. Indeed, at least one commentator has pronounced that the doctrine has "virtually disappeared" in the United States in recent years. (39) That conclusion is belied by reality and represents wishful thinking. (40) The doctrine commands increasing support in the courts, (41) and even some commentators seem not quite able to let go of it. (42) Although not focusing on American law, Professor MacDougall's observation about the doctrine seems apt here. He observes that "[t]he doctrine is occasionally proclaimed dead, but it tends to resurface, each new case typically raising more questions...