BARKER v. KALLASH

63 N.Y.2d 19 (1984)

James Barker, as Guardian ad Litem of George Barker, an Infant, Appellant, et al., Plaintiff, v. Abdullah Kallash et al., Defendants, and Daniel Melucci, Sr., and Another, as Guardians ad Litems of Daniel Melucci, Jr., et al., Respondents.

Court of Appeals of the State of New York.
Decided July 5, 1984.
Richard T. Farrell and Marvin Suss for appellant.
Jeffrey S. Rovins and Salvatore A. Mazzoni for respondents.
Rosario D'Apice for Abdullah Kallash and another, defendants.
Chief Judge COOKE and Judges JONES and KAYE concur with Judge WACHTLER; Judge JASEN concurs in a separate opinion; Judge SIMONS dissents and votes to reverse in another opinion in which Judge MEYER concurs.

WACHTLER, J.

The question on this appeal is whether the 15-year-old plaintiff, who was injured while constructing a "pipe bomb", can maintain a tort action against the 9-year-old defendant who allegedly sold the firecrackers from which the plaintiff's companions extracted the gunpowder used to construct the bomb. The trial court granted summary judgment dismissing the cause of action against the defendant and his parents for alleged negligent supervision. The Appellate Division affirmed. The plaintiff has appealed by leave of this court.

The facts are in dispute; however, for the purposes of this appeal, dealing with a motion for summary judgment, we must accept the plaintiff's version of the events, as the lower courts have done.

On June 25, 1976 the plaintiff, George Barker, and two companions, Ayman and Anas Kallash, made a "pipe bomb" in the backyard of the Barker home in Brooklyn. At the time the plaintiff was nearly 15 years old and the Kallash brothers were 14 and 15, respectively. The bomb was made by filling a metal pipe, three or four inches long and one inch wide, with gunpowder.

The plaintiff concededly obtained the pipe from his father's home workshop where he also found the caps to seal it and a power drill he used to make a hole for the fuse. Although his father also used gunpowder to reload shotgun shells at home, the plaintiff contends that the gunpowder used in the bomb was supplied by the Kallash brothers who extracted it from firecrackers. He testified, at an examination before trial, that they had told him that the day before the incident they had purchased firecrackers from the defendant Daniel Melucci, Jr., who was not quite nine years old at the time. Indeed, the plaintiff testified that he had told the Kallash brothers where the firecrackers could be purchased. The injury occurred after the pipe had been capped at one end and the plaintiff, and one of the Kallash brothers, had poured the gunpowder into it. As the plaintiff was screwing the second cap on to the pipe it exploded, severely injuring his hands.

Plaintiff, through his father, brought an action against the Kallash brothers for their part in constructing the bomb, against Daniel Melucci, Jr., for allegedly selling the firecrackers to the Kallashes, and against Robert Judge, another infant, who allegedly sold the firecrackers to Melucci. In each instance the plaintiff also sued the infants' parents for negligent supervision.

After examination before trial, the Meluccis moved for summary judgment, principally on the ground that the plaintiff is barred from recovering for injuries sustained while engaged in wrongful or illegal conduct. The trial court granted the motion holding that the plaintiff "by participating in the making of a pipe bomb was engaged in wrongful if not illegal conduct" and noted that the courts of this State have consistently refused "to allow a party to establish a claim based on his own wrongful conduct". The court also observed that the "fact that New York now has a comparative negligence or fault statute (CPLR 1411) would have no bearing upon this established public policy". After this motion was granted, the Kallashes moved to dismiss the cause of action against them on the same ground. Determination of that motion was stayed pending this appeal.

The Appellate Division affirmed noting that the "kind of activity in which plaintiff was engaged when injured cannot be passed off lightly as mere prankish or foolish conduct * * * Certainly, this case constitutes a striking illustration of the potential for grave harm to life and limb that such a dangerous instrumentality possesses, and is the most powerful of evidence in support of the conclusion that pipe bomb making, which has been condemned by the Penal Law, is beyond any doubt injurious to the public interest". The court also found no merit to the plaintiff's reliance on CPLR 1411 (91 A.D.2d 372, 377).

At the outset a distinction must be drawn between lawful activities regulated by statute and activities which are entirely prohibited by law. In the first instance, it is familiar law that a violation of a statute governing the manner in which activities should be conducted, would merely constitute negligence or contributory negligence (see, e.g., Platz v City of Cohoes, 89 N.Y. 219; Martin v Herzog, 228 N.Y. 164; Corbett v Scott, 243 N.Y. 66; Humphrey v State of New York, 60 N.Y.2d 742). Such cases would today be resolved under the rule of comparative negligence (CPLR 1411). However, 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. In 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 (Reno v D'Javid, 42 N.Y.2d 1040). In the Reno case a woman who submitted to an illegal abortion could not recover for alleged negligence on the part of the physician performing the operation (Reno v D'Javid, supra). The rule is based on "the paramount public policy imperative that the law, whatever its content at a given time or for however limited a period, be obeyed" (Reno v D'Javid, supra). It extends the basic principle that one may not profit from his own wrong (Riggs v Palmer, 115 N.Y. 506; Carr v Hoy, 2 N.Y.2d 185) to tort actions seeking compensation for injuries resulting from the plaintiff's own criminal activities of a serious nature.

The rule denying compensation to the serious offender would not apply in every instance where the plaintiff's injury occurs while he is engaged in illegal activity (see Restatement, Torts 2d, § 889, Comment b). Thus if the plaintiff in the example cited above had been injured in an automobile accident as a result of another's negligence, she would not be denied access to the courts merely because she was on the way to have the illegal operation performed (see, e.g., Restatement, Torts 2d, § 889, Comment b, Illustration 3). A complaint should not be dismissed merely because the plaintiff's injuries were occasioned by a criminal act (cf. Humphrey v State of New York, 60 N.Y.2d 742, 744, supra; Scurti v City of New York, 40 N.Y.2d 433). However, when the plaintiff's injury is a 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 (Reno v D'Javid, supra).1 Thus a burglar who breaks his leg while descending the cellar stairs, due to the failure of the owner to replace a missing step cannot recover compensation from his victims. As indicated the rule is grounded in public policy and holds that a claimant whose injuries are the direct result of his commission of what is judged to be serious criminal or illegal conduct is not entitled to recover. It involves preclusion of recovery at the very threshold of the plaintiff's application for judicial relief.

The plaintiff urges that this rule should not apply to his case for a number of reasons. Many of the arguments have theoretical appeal, as the dissent has demonstrated. None, however, are sufficient on the facts of this particular record to warrant sending the case to a jury.

First, he contends that his acts were not so egregious and that the case in essence involves nothing more than "a claim arising out of injuries suffered by one of several youngsters playing with fireworks shortly before the Fourth of July". It is true that not every violation of the law, no matter how petty or slight, will serve to completely resolve a question of tort liability (Corbett v Scott, 243 N.Y. 66, supra). A plaintiff will be precluded from seeking compensation where his injuries were a direct result of a serious violation of the law involving hazardous activities which were not justified under the circumstances. In the case before us the plaintiff's conduct may not fairly be characterized as a minor dereliction. By 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. Constructing 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 (compare Penal Law, § 265.02, subd [2], with Penal Law, § 270.00, subd 2). Certainly if the plaintiff had decided to use the gunpowder in a gun, it could not be said that he was merely playing with firecrackers because the powder had originally been obtained from firecrackers. In addition, as the Appellate Division noted, the extent of the plaintiff's injuries, which were a foreseeable consequence of a mishap, testify to the serious nature of his conduct.2

Secondly, the plaintiff claims dispensation from the general rule because of his age, not quite 15 at the time of the incident. He notes that at that age he could not be convicted of a criminal offense (Penal Law, § 30.00, subd 1) and urges that he should be granted a similar exemption from the rule precluding tort recovery for injuries resulting from an otherwise serious criminal act. Although the plaintiff may not be held criminally responsible for his conduct, the fact remains that constructing a bomb is prohibited by law (Penal Law, § 265.02, subd [2]). Notably even the criminal law does not grant a youth complete immunity from responsibility for illegal acts (Family Ct Act, art 7). There is nothing in this record which would justify such an exemption in this civil action.

The plaintiff was not a toddler. And building a bomb is not such an inherently innocuous activity that it can reasonably be presumed to be a legally permissible act by an average 15 year old. In fact, despite extensive pretrial proceedings below the plaintiff never claimed that he was ignorant of the fact that his conduct was wrongful or that he was unaware of the potential danger it posed to himself and other members of the public. Thus in this case there is no reason why the plaintiff's status as a minor should exempt him from the policy which bars a person from seeking legal compensation for injuries directly sustained in the course of willing participation in an illegal act of a serious nature.3

Finally the plaintiff urges that the rule precluding such recovery was abrogated when the Legislature adopted CPLR 1411 which provides that the "culpable conduct" of a plaintiff "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". The plaintiff contends that the term "culpable conduct" includes illegal conduct, thus permitting a plaintiff who was injured while violating the law to recover from those who may have contributed to his injury. Since this statute went into effect on September 1, 1975 (L 1975, ch 69), prior to the injury sustained by the plaintiff in this case, he urges that it permits him to recover a proportionate share of his loss.

CPLR 1411 abolished the contributory negligence rule which had previously denied a plaintiff any recovery for a cognizable tort if it was shown that the plaintiff had in any way contributed to his own injury. It is a companion to CPLR 1401 which abolished the common-law rules of contribution which often precluded defendants from redistributing liability among themselves based upon the degree to which each of them had contributed to the plaintiff's injury (see, also, CPLR 1402). This latter statute essentially codified decisions of this court which had rejected the common-law rules on the ground that they depended upon outmoded notions which currently served as arbitrary or artificial obstacles to fair distribution of liability (Dole v Dow Chem. Co., 30 N.Y.2d 143; see, also, Schauer v Joyce, 54 N.Y.2d 1, 5). The history of these statutes shows that by referring to "culpable" conduct, rather than negligence, the Legislature intended to include tortious conduct generally, breaches of warranty and the like which had previously served to defeat otherwise cognizable causes of action for damages, or bar contribution among defendants (McKinney's Session Laws of NY, 1974, p 1806; McKinney's Session Laws of NY, 1975, p 1484).

The lower courts properly held that CPLR 1411 has no application to the rule precluding a plaintiff from recovering for injuries sustained as a direct result of his own illegal conduct of a serious nature involving risk of physical harm. 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 (McKay v Syracuse R. T. Ry. Co., 208 N.Y. 359). 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 (see, e.g., Riggs v Palmer, supra; Carr v Hoy, supra). It simply means that proof of such an injury would not demonstrate any cause of action cognizable at law. The policy which applies to this case, has always existed independently from the rule of contributory negligence and its successor, comparative negligence. "The difficulties in drawing the line between those breaches of statutory duty which create or defeat a cause of action and those which may be merely a contributing cause of injury must be met as they present themselves" (Corbett v Scott, 243 N.Y. 66, 71, supra).

The policy on which this rule rests has not diminished with time. Nor is there any indication in the history of the statute that the Legislature intended, by eliminating outmoded impediments to otherwise lawful recoveries, to create a new cause of action for those who suffer injuries as a direct result of voluntary participation in acts which the Legislature itself has defined as a serious offense involving risk of physical harm to the public. Thus we find no support for the pendulum theory suggested by the plaintiff and the dissenters, to the effect that the Legislature intended to redress the extreme restrictions of the past by going to opposite extremes in the future.

Accordingly, the order of the Appellate Division should be affirmed.

JASEN, J. (concurring).

While I agree with the result reached by the majority, I write to express my view of the basis and the boundaries of the rule to be applied in this case.

To permit an action for injuries sustained as a consequence of the plaintiff's own grievous criminal conduct — the construction of a "pipe bomb" — would contravene fundamental public policy of this State. It is a basic principle recognized by the courts throughout this country that no person shall be permitted to take advantage of his own wrongdoing by predicating a legal or equitable claim upon his fraudulent, immoral or illegal conduct. (1 Am Jur 2d, Actions, §§ 51, 52; 1 CJS, Actions, § 13.) This principle, most frequently asserted as a defense against enforcement of illegal contracts (see, e.g., Spivak v Sachs, 16 N.Y.2d 163; Stone v Freeman, 298 N.Y. 268) or against recovery of insurance proceeds made payable by the criminal act of a beneficiary (see Riggs v Palmer, 115 N.Y. 506; cf. Jacob v Prudential Ins. Co., 256 App Div 884, affd 281 N.Y. 623) is applicable as well to actions arising in tort (74 Am Jur 2d, Torts, § 45; 86 CJS, Torts, § 50; 59 NY Jur, Torts, § 31) under the theory that no one should be rewarded for voluntary participation in a wrong or disobedience of the law. (See Prosser, Torts [4th ed], § 18; Restatement, Torts 2d, § 60.)

The mere commission of any offense, however, ought not to bar a plaintiff from seeking redress in the courts for any injury suffered while engaging therein. (Restatement, Torts 2d, § 889; cf. § 469.) This so-called "outlaw" doctrine of tort law — i.e., depriving a violator of the law of any rights against a tort-feasor — has long since been discarded by most, if not all, American jurisdictions (Prosser, Torts [4th ed], § 36; 2 Harper and James, Torts, § 17.6) and, indeed, was early rejected by this court (Carroll v Staten Is. R. R. Co., 58 N.Y. 126; Platz v City of Cohoes, 89 N.Y. 219; Rapee v Beacon Hotel Corp., 293 N.Y. 196; see, generally, Davis, Plaintiff's Illegal Act as a Defense in Actions of Tort, 18 Harv L Rev 505; Thayer, Public Wrong and Private Action, 27 Harv L Rev 317, 338-342; Note, 39 Harv L Rev 1088). Rather, an individual's violation of a penal statute should preclude an action for injuries caused by a tort-feasor, only when his own criminal conduct was a contributing proximate cause (74 Am Jur 2d, Torts, § 46; 86 CJS, Torts, § 28; 59 NY Jur, Torts, § 31) and where that conduct can fairly be considered so egregious an offense that permitting recovery would be inimical to the public interest.

The requirement for a causal nexus between plaintiff's injury and his own misconduct is well settled. (See Corbett v Scott, 243 N.Y. 66; Martin v Herzog, 228 N.Y. 164; Platz v City of Cohoes, supra; see, also, 74 Am Jur 2d, Torts, § 46; 86 CJS, Torts, § 28; Beggerly v Walker, 194 Kan. 61; Gaines v Wolcott, 119 Ga.App. 313; Baskett v Banks, 186 Va. 1022.) On the other hand, the requirement that the criminal conduct be particularly egregious has not so frequently or unambiguously been applied and indeed, until today, the requirement has not been unequivocally stated. Nevertheless, it is well supported in the past decisions of this court in which it has oft been repeated in both tort and contract cases. (See, e.g., Corbett v Scott, supra, at pp 69-70; Platz v City of Cohoes, supra, at pp 222-223; Carroll v Staten Is. R. R. Co., supra, at p 137; see, also, McConnell v Commonwealth Pictures Corp., 7 N.Y.2d 465; Flegenheimer v Brogan, 284 N.Y. 268; Tracy v Talmage, 14 N.Y. 162; Fellner v Marino, 4 Misc.2d 16.)

This court early distinguished itself from other jurisdictions which held that the right to recovery in tort was defeated whenever the injury was sustained while the plaintiff was engaged in unlawful conduct, regardless of its nature. This court took the contrary view that plaintiff's misconduct must have been sufficiently grievous to justify such a result and, consequently, plaintiffs in our courts have been entitled to a cause of action despite their misconduct when it was not of the kind that "usually results in injury" (Platz v City of Cohoes, supra, at p 223) or "not per se * * * dangerous" (Corbett v Scott, supra, at p 70) or not "a grave offence against the State" (Carroll v Staten Is. R. R. Co., supra, at p 137; see, also, Scurti v City of New York, 40 N.Y.2d 433; Connolly v Knickerbocker Ice Co., 114 N.Y. 104).

In deciding such cases, this court has consistently examined the plaintiff's wrongdoing to determine "whether * * * recovery * * * should be denied for the sake of public interests" (Flegenheimer v Brogan, supra, at p 272) and has held that the aid of the courts should be barred only when plaintiff's actions were "so far against the public good" — e.g., clearly inimical to the "`health, welfare and safety of the people of the state'" (id., at p 273) or "gravely immoral and illegal" (McConnell v Commonwealth Pictures Corp., 7 NY2d, at p 471). This requirement is dictated by fundamental public policy that the courts of this State shall not honor claims founded on wrongdoing that is morally reprehensible, heinous, or gravely injurious to the public interests (see id., at pp 469-471; Flegenheimer v Brogan, supra, at p 272; Tracy v Talmage, supra, at p 181; Jacob v Prudential Ins. Co., supra; Fellner v Marino, supra, at p 26). Clearly, considerations of public policy should bar an arsonist, rapist or one engaged in similarly reprehensible misconduct from bringing an action for injuries resulting from the victim's or accomplice's carelessness.

Indeed, these same principles of public policy were once elegantly expressed in another context by Justice Brandeis: "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." (Olmstead v United States, 277 U.S. 438, 484 [Brandeis, J., dissenting]; see, also, Bowlan v Lunsford, 176 Okla. 115, 117-118.) To these lines I would only add for emphasis that the plaintiff's violation must be either gravely immoral or grievously injurious to the public interests.

Accordingly, because the plaintiff's grievous criminal conduct — the construction of a "pipe bomb" — was a proximate cause of the injuries suffered and was so plainly violative of paramount public safety interests, the public policy of this State dictates that recovery be denied.

SIMONS, J. (dissenting).

The majority holds that one injured by another's fault while engaging in allegedly criminal conduct may not be permitted access to the civil courts to recover damages for his injuries. There are several objections to such a rule. First, it is based upon a decision which is distinguishable (Reno v D'Javid, 42 N.Y.2d 1040), second, as the majority concedes, it does not always apply (see Corbett v Scott, 243 N.Y. 66; Connolly v Knickerbocker Ice Co., 114 N.Y. 104, 108-109; Platz v City of Cohoes, 89 N.Y. 219; and see Townsend v Commercial Travelers Mut. Acc. Assn., 231 N.Y. 148), and third, the majority has not told us when it does. Nor has it told us why all the issues in such a claim should be decided by the court as a question of law, rather than by the trier of facts as the Legislature provided in the comparative fault statute (CPLR 1411). In short, this decision permits the court to make a subjective ad hoc judgment on the severity of the plaintiff's putative criminal conduct and then to apply a general principle to it, as if the principle was a rule of tort liability, to bar plaintiff's claim.

The majority predicates its decision on Reno v D'Javid (42 N.Y.2d 1040, supra). In Reno, the plaintiff suffered a perforated uterus when defendant performed an illegal abortion on her. The Appellate Division affirmed so much of the trial court's ruling as dismissed the cause of action for medical malpractice, breach of warranty and assault, ruling that plaintiff's participation in a criminal act barred judicial relief for injuries arising from that act (see Penal Law, §§ 125.50, 125.40). The decision was based on the principle that one should not profit from her own wrong (citing Riggs v Palmer, 115 N.Y. 506, 511-512). This court, adopting the memorandum at the Appellate Division as its decision, affirmed, adding only that plaintiff had violated the "paramount public policy imperative" that the laws must be obeyed.

This case is factually and legally distinguishable from the Reno case. Reno dealt with an adult plaintiff and undisputed criminal liability for participating in an abortion. This plaintiff was 14 at the time of the accident, an age at which the majority concedes he cannot be held criminally responsible (Penal Law, § 30.00, subds 1, 2, as amd L 1978, ch 481, § 28; L 1979, ch 411, § 21; L 1981, ch 335, § 5). Notwithstanding this, the majority insists that because of the seriousness of his conduct, his claim is barred. A plaintiff should not be foreclosed from seeking civil relief, however, because of the illegal character of his act as distinguished from an actual finding of criminal liability. Particularly is this so when the plaintiff is an infant plaintiff or one lacking capacity for other reasons, those whom the criminal law treats differently from competent adults. The civil rules of tort liability require consideration of plaintiffs' capacity. The violation of a statute by an adult plaintiff constitutes culpable fault, while the same violation by an infant raises a question of fact as to whether the infant had the age, experience, intelligence and development to understand the meaning of the statute and to comply with it (PJI 2d, 2:49, p 191). That is the rule applied to 14-year-old bicycle riders injured while allegedly violating a statute (Gargano v Hanington, 40 A.D.2d 675; see, also, Poczkalski v Cartwright, 65 A.D.2d 945; Locklin v Fisher, 264 App Div 452) and if they are entitled to have a jury evaluate their understanding of the laws relating to the use of something as commonplace and familiar as a bicycle, then a 14-year-old boy ought to have the benefit of a similar factual determination when handling firecrackers or explosives.

Moreover, the Reno decision was based upon Riggs v Palmer (115 N.Y. 506, supra) and that decision is inconsistent with the policies underlying present tort law. In Riggs, a legatee who murdered a testator was not allowed to inherit under the testator's will even though he was the named beneficiary. In denying the inheritance, this court relied upon the fundamental principle of public policy that one may not profit from his own wrong (115 NY, at pp 511-512). As our later decisions demonstrate, however, the application of the principle has been restricted to preventing unjust enrichment in cases of competing claims to real or personal property (see Spivak v Sachs, 16 N.Y.2d 163 [plaintiff barred from recovery for services rendered pursuant to an illegal contract to practice law]; McConnell v Commonwealth Pictures Corp., 7 N.Y.2d 465 [plaintiff prohibited from enforcing lawful contract because he had committed acts of bribery in performing his obligations under the agreement]; Carr v Hoy, 2 N.Y.2d 185 [plaintiff barred from asserting any rights to moneys seized by law enforcement officers because they were obtained as a result of criminal conduct]; Stone v Freeman, 298 N.Y. 268 [counterclaims based upon illegal agreements held to be unenforceable]; Flegenheimer v Brogan, 284 N.Y. 268 [plaintiff spouse barred from inheriting shares of decedent's brewery when she wrongfully concealed his ownership interest in it]). No New York tort case other than Reno has been brought to our attention in which Riggs was relied upon or even cited. A few other States have applied the Riggs principle in torts but those decisions have been described as contrary to the compensatory theory of torts and as "a barbarous relic of the worst there was in puritanism" (2 Harper and James, Torts, § 17.6, pp 995-997; see, also, Prosser, Torts [4th ed], pp 421, 422).

A plaintiff's unlawful conduct has never been applied consistently in New York to foreclose plaintiff's recovery. Thus, in Corbett v Scott (243 N.Y. 66, supra), a 16-year-old infant plaintiff was not denied recovery for his injuries when he had an accident while driving a motorcycle in violation of two statutes. In Connolly v Knickerbocker Ice Co. (114 N.Y. 104, supra), an infant plaintiff riding unlawfully on the platform of a trolley was not denied recovery for the injuries he sustained when the trolley was involved in an accident. In Platz v City of Cohoes (89 N.Y. 219, supra), a plaintiff injured while violating the laws prohibiting driving a carriage on Sunday was permitted to recover (see, also, Carroll v Staten Is. R. R. Co., 58 N.Y. 126). Similarly, plaintiff's criminal conduct has not been used to foreclose access to the courts for reckless or drunken drivers (see Humphrey v State of New York, 60 N.Y.2d 742, 744) or those guilty of criminal trespass when injured by a landowner's fault (see Scurti v City of New York, 40 N.Y.2d 433). The majority maintains liability will be foreclosed if the conduct is "serious" — the concurring opinion would apply the rule only if the conduct was "egregious" — and the injury the direct result of plaintiff's unlawful conduct. The plaintiffs have been permitted to recover in the cited cases, however, not because the conduct was not serious, but because of the lack of causal connection between it and the damage sustained (see, generally, Davis, Plaintiff's Illegal Act as a Defense in Actions of Tort, 18 Harv L Rev 505; 2 Harper and James, Torts, § 17.6; Prosser, Torts [4th ed], p 421). A plaintiff's right to maintain an action, however, should not rest on a Judge's subjective view of whether the conduct is serious or egregious: Judges will differ in making such an evaluation. Indeed the Judges of this court disagreed on the "seriousness" of the plaintiff's conduct in Reno, as they do here. As for causation, that is a fact question in almost all cases (see Wartels v County Asphalt, 29 N.Y.2d 372, 379-380). Particularly is it so in this case in which the pleadings and the evidence demonstrate that the wrongful conduct of the parties acted simultaneously in causing plaintiff's injuries. Neither of these issues should be decided on a motion for summary judgment.

There is another problem in applying the Riggs principle to questions of tort liability. It runs counter to the rule of comparative fault and the policy interests underlying that rule because Riggs produces an "all or nothing" result which precludes the wrongdoer from seeking judicial relief. When this "all or nothing" approach is applied to tort liability, it is, as one court has said, only another form of contributory negligence (see Galena & Chicago Union R. R. Co. v Jacobs, 20 Ill. 478, 491). The analogy is apt because under the rule of contributory negligence, when a plaintiff's act or omission contributes in any way to his injuries, he is barred from pursuing a claim against a defendant notwithstanding defendant's partial responsibility for the injuries. The majority's application of the Riggs maxim has a similar result — it forecloses the plaintiff from judicial relief when the court determines that he has been guilty of criminal conduct contributing to his injuries.

This is a return to the old "admonitory" theory of tort liability, the idea that a defendant was liable to the plaintiff because of his blameworthiness or fault. The rationale of that theory, in its pristine form, was that because the conduct of the defendant may have fallen short of criminal activity the injured party should be given satisfaction, and the wrongdoer "punished", by a civil remedy of damages in tort. Because this admonitory or punitive function was paramount, a plaintiff who was also guilty of blameworthy conduct was similarly punished by being denied relief. Both parties being at fault, the courts refused to measure their wrong and let the losses lay where they fell. The rigors of such a rule soon became apparent and the law moved towards a compensatory theory of tort law which led to the principle of comparative liability set forth as early as the turn of the century in statutes such as the first Federal Employees Liability Act, followed by the Jones Act, the Merchant Marine Act and eventually the comparative negligence statutes enacted in several States (see, generally, White, Tort Law in America, pp 164-165). Contemporaneously, the courts have moved to develop the common law along similar lines (see, e.g., Scurti v City of New York, 40 N.Y.2d 433, supra; Codling v Paglia, 32 N.Y.2d 330; Dole v Dow Chem. Co., 30 N.Y.2d 143). The ultimate proof of the ascendancy of the compensatory view of tort liability is expressed in our no-fault automobile liability laws (Insurance Law, art 18).

New York adopted comparative fault by a statute passed in 1975 (L 1975, ch 69). It provides that the culpable conduct attributable to the claimant shall not bar his recovery, only diminish it in the proportion which it bears to the culpable conduct of the defendant. The statute makes no exceptions for intentional acts or even criminal ones but applies alike to all culpable conduct, not just negligence (CPLR 1411; see Thirteenth Ann Report of NY Judicial Conference to Legislature on CPLR, Part I-Comparative Negligence, § 10-101 [proposed amdt to General Obligations Law], comment [b] [in Twenty-first Ann Report of NY Judicial Conference, 1976, p 240]). Thus, the statute provides the vehicle for evaluating plaintiff's conduct, whether it caused his damages and if so in what degree. It prevents a plaintiff from profiting from his own wrong because he can recover only the amount of his damages attributable to defendant's culpable conduct. In doing so, it provides a workable rule of law which reconciles the Riggs principle with the competing principle that a party injured by the fault of another is entitled to compensation.

The decision of the majority ignores this history and effectively nullifies the statute in cases in which the plaintiff is arguably guilty of violating a penal statutory provision. It asserts that the principle applies because the wrong transcends contributory negligence or the comparative fault statute. The Riggs principle, however, is not a rule of law necessitating a particular result, although the majority has applied it as if it were. It states a reason that argues in only one direction and, as such, it must compete with other inconsistent principles (see Dworkin, Model of Rules, 35 U of Chi L Rev 14, 26). In the past when we have foreclosed relief on public policy grounds, we have done so under circumstances in which objectively determinable facts made application of the rule certain and consistent (see De Angelis v Lutheran Med. Center, 58 N.Y.2d 1053 [no cause of action by child for loss of parents' consortium]; Smith v Sapienza, 52 N.Y.2d 82 [no cause of action for negligent supervision by child against parent]; Becker v Schwartz, 46 N.Y.2d 401 [no cause of action for "wrongful life" by brain-damaged child against the doctor who delivered her]; Howard v Lecher, 42 N.Y.2d 109 [no cause of action against doctor for mental distress and emotional disturbance resulting from negligence resulting in birth of fatally ill child]; Holodook v Spencer, 36 N.Y.2d 35 [no cause of action for negligent supervision by child against parent]). The present decision cannot be similarly contained. It is subject not only to varying personal evaluations of the plaintiff's conduct by different Judges but also to changing social perceptions of what constitutes serious or hazardous criminal activity. The irony of Reno was that the plaintiff was denied recovery solely because her injuries were sustained during an abortion which was illegal when performed but which would not have been illegal if performed four weeks later. If the majority chooses to decide this case on grounds of public policy by applying a general principle, then the obligation rests upon it to define the rule and set forth the limitations on it (see Hopkins, Public Policy and the Formulation of a Rule of Law, 37 Brooklyn L Rev 323, 336). It has failed to do so, however, stating only that "[t]he rule * * * would not apply in every instance where the plaintiff's injury occurs while he is engaged in illegal activity", only when it "is a direct result of his knowing and intentional participation in a criminal act" (majority opn, at p 25), which involves risk of harm to the public (majority opn, at p 29; concurring opn, at p 32). Curiously, the rule as stated would not have prevented recovery in the only case the majority relies upon (see Reno v D'Javid, 42 N.Y.2d 1040, supra). Nor does the regulated-prohibited test withstand analysis. For example, drunken driving is prohibited criminal conduct but it does not foreclose an action by the drunken driver for damages sustained in an accident with another.

To support this new formulation, the majority rely upon Comment b of section 889 of the Restatement of Torts, Second. Section 889 makes no distinction, however, between serious crimes and others. It provides that "[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." It is interesting to note that this section of the Restatement was also relied upon by the Oregon Court of Appeals in a case remarkably similar on the facts to this one in which the court refused to dismiss the complaint of an infant plaintiff who was injured while making a pipe bomb and permitted the question to be decided by the jury as the question of causation should be (see Ashmore v Cleanweld Prods., 66 Or.App. 62; see, also, Siess v Layton, 417 S.W.2d 6 [Mo]).

In sum, the Riggs maxim and this court's statement in Reno that parties must obey the law are proper considerations of social policy which work satisfactorily in equitable actions, but they hardly provide a workable rule of law in the field of tort liability and should not be so applied.

This decision will have a substantial impact upon New York's personal injury litigation. In any case in which the plaintiff is allegedly guilty of any of the thousands of penal provisions contained in the various statutes of this State he will be denied access to the civil courts if, after examining the motion papers, a Judge decides the factual questions involved on the issues of whether (1) plaintiff's conduct was criminal, and if so, whether it was "serious" and presented a risk of physical harm to the public, (2) plaintiff possessed the mental capacity to be held to the same standards of conduct as a competent adult and (3) plaintiff's conduct was the proximate cause of the injury. Having resolved these issues against the plaintiff and in effect tried the lawsuit on affidavits, he may dismiss the complaint. Perhaps, as a matter of social policy, this is an appropriate type of additional punishment to be imposed on putative wrongdoers, but if so, the Legislature should say so, not the courts. Instead the majority, by refusing to distinguish between legal cause and cause in fact and after a highly selective review of the facts, has made a moral judgment that this particular plaintiff is not entitled to such relief because he is something of an "outlaw". (See 2 Harper and James, Torts, § 17.6, p 995.)

Accordingly, I dissent and would vote to reverse the order granting summary judgment.

Order affirmed, with costs.

FootNotes


1. Although the dissenters criticize (115 N.Y. 506) as representing an excessively "puritanical" approach to the law, we assume that they would not go so far as to hold that a criminal profit from his criminal act. It appears that their primary objection is to our recent decision in () which extended the basic rule so as to prelude a person from obtaining legal compensation for injuries directly resulting from knowing participation in a criminal act. Their criticism of this rule seems to be based on the fact that it does not apply "consistently" to all types of illegal conduct thus permitting a "subjective" judicial evaluation of the degree of the criminality involved. The dissenters do not indicate, however, how this objection, if valid, would be eliminated by adopting the contrary rule they propose. Even the plaintiff recognized that a rapist should not be permitted to obtain legal compensation for injuries negligently sustained as a direct result of the rape, and that in this and similar circumstances the courts would be obliged to place reasonable restrictions on the rule the plaintiff and the dissenters propose that we adopt in this case.
2. The fact that the plaintiff engaged in illegal conduct of a serious nature must be emphasized in view of the dissent's erroneous contention that this decision establishes a novel concept permitting complaints of persons "allegedly guilty of any of the thousands of penal provisions contained in the various statutes of this State" to be dismissed on motion if the court finds that the plaintiff's conduct contributed to his damages. Neither is there any merit to the dissent's contention that our decision "will have a substantial impact upon New York's personal injury litigation" because in "any case in which the plaintiff is allegedly guilty of any of the thousands of penal provisions contained in the various statutes of this State he will be denied access to the civil courts if, after examining the motion papers, a Judge decides the factual questions involved". As noted above the plaintiff's own testimony establishes that he was making a bomb and that the injuries for which he now seeks recovery were entirely caused by his attempt to screw the cap on the bomb. Thus the dissent overlooks the unique circumstances of this case by ignoring the fact that the plaintiff's own admissions prove that he engaged in illegal conduct of a serious nature and that his injuries were directly, indeed solely, caused by his illegal acts.
3. This does not mean as the dissent suggests that infancy and other factors which may excuse or ameliorate otherwise criminal conduct can never relieve a plaintiff of the consequences of an apparently criminal act. We simply hold that in this case there has been no showing that the plaintiff's age entitled him to such relief.

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