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Does a Plaintiff’s Illegal Action Preclude Recovery as a Matter of Law?

Article by Josey Richards, Law Clerk

A recurring issue is whether drug and rehabilitation centers can assert the defense of comparative negligence in personal injury claims arising from a plaintiff’s illegal drug consumption.  Pennsylvania courts do not apply comparative negligence to cases involving illegal drug use. Instead, when the action by a plaintiff, which contributed to his own injuries, is a criminal act, the doctrine of in pari delicto applies. In pari delicto is a common-law affirmative defense based upon the principle that a plaintiff should not be permitted to recover for damages caused by their own wrongdoing. There is minimal case law in which in pari delicto has been applied in actions against drug and rehabilitation centers, although courts readily apply the doctrine in cases centered upon illegal drug use.

Pennsylvania Adopted the Doctrine of In Pari Delicto

The Pennsylvania Supreme Court recently affirmed the Commonwealth’s adoption of the common law doctrine in pari delicto. Albert v. Sheeleys Drug Store, Inc., 265 A.3d 442 (Pa. 2021). The equitable doctrine of in pari delicto “precludes plaintiffs from recovering damages if their cause of action is based, at least partially, on their own illegal conduct.” Id. at 446-47; citing Joyce v. Erie Ins. Exch., 74 A.3d 156, 164 (Pa. Super. 2013) (“[O]ur law will not allow recovery when an action is grounded in illegal behavior.”). Under Pennsylvania’s adoption of in pari delicto, courts consider two factors in choosing to apply the doctrine: “(1) the extent of the plaintiff’s wrongdoing vis-à-vis the defendant; and (2) the connection between the plaintiff’s wrongdoing and the claims asserted.” Albert, 265 A.3d at 450.

Further, the Court instructed that the doctrine of in pari delicto is not preempted by Pennsylvania’s comparative negligence statutes. Id. at 451. The doctrine of in pari delicto serves to prevent cases from proceeding which would: “(1) condone and encourage illegal conduct; (2) allow wrongdoers to receive compensation for, and potentially even profit from, their illegal act; and (3) lead the public to ‘view the legal system as a mockery of justice.’” Id. at 448; citing Orzel v. Scott Drug Co., 449 Mich. 550, 537 N.W.2d 208, 213 (1995). In sum, the doctrine does not bar recovery because a plaintiff contributed to his own injury, but because the Commonwealth does not wish to reward illegal conduct. Id. at 451. Thus, comparative negligence statues do not eliminate or replace in pari delicto because the two are not on point. Id.

The Pennsylvania Supreme Court affirmed illegal drug use as the sort of criminal conduct within the scope of in pari delicto. In Albert, the estate of a decedent brought a suit against the decedent’s friend and a drug store. Id. at 445. The mother of the friend had a prescription for fentanyl at the drug store and the mother had specifically instructed the drug store to not allow her son to pick up the prescription due to his drug addiction. Id. Although the prescription itself read “do not dispense to son,” the pharmacist still dispensed the fentanyl prescription to friend of the decedent. Id. Decedent was aware of his friend’s plan to obtain his mother’s prescription and drove him to the drug store. Id. at 446. Later that evening, decedent passed away as a result of ingestion of the fentanyl, among other drugs. Id. The administrator of the estate claimed the drug store was negligent in dispensing the prescription, but the drug store raised the doctrine of in pari delicto. Id. The Supreme Court of Pennsylvania affirmed both the Court of Common Pleas and the Superior Court’s grant of summary judgment in favor of the drug store on the principle of in pari delicto. Id. at 447.

In the Court’s reasoning, the Court referenced the Alabama Supreme Court case of Oden v. Pepsi Cola Bottling Co., 621 So.2d 953 (Ala. 1993). In Oden, a vending machine crushed and killed a man as he was attempting to steal its contents. Id. at 449. The Alabama Supreme Court affirmed dismissal of the suit brought against Pepsi and the vending machine manufacturer by the decedent’s estate under in pari delicto. The court explained:

A person cannot maintain a cause of action if, in order to establish it, he must rely in whole or part on an illegal or immoral act or transaction to which he is a party… This rule promotes the desirable public policy objective of preventing those who knowingly and intentionally engage in an illegal or immoral act involving moral turpitude form imposing liability on others for the consequences of their own behavior. Even so, such a rule derives principally not from consideration for the defendant, but from a desire to see those who transgress the moral or criminal code shall not receive aid from the judicial branch of government.

In applying the Alabama Supreme Court’s reasoning, the Pennsylvania Supreme Court acknowledged that decedent could very well have been a “troubled youth” and that “addiction is not a question of morality.” Id. Nonetheless, although the result of Albert “may seem harsh,” in pari delicto is in place to prevent courts from condoning criminal conduct. Id.

However, plaintiff’s illegal drug use may not invoke the doctrine of in pari delicto when the illegal drug use resulted from defendant’s conduct. In Laskowski, a veteran suffering from PTSD brought a medical malpractice against the veteran’s hospital asserting that the hospital’s failure to adequately treat his PTSD led to his mental deterioration and subsequent arrest. Laskowski v. U.S. Dept. of Veterans Affairs, 918 F.Supp.2d 301 (2013).  Defendant hospital asserted that plaintiff underreported his symptoms to his psychiatrist and that defendant’s drug and alcohol abuse exacerbated his condition. Id. at 310-11. In finding for plaintiff, the court reasoned that plaintiff was a good patient and actively sought held from the VA. Id. at 328. Thus, plaintiff’s drug and alcohol abuse, and therefore criminal conduct, resulted from the medical negligence at issue because plaintiff developed his addiction due to uncontrolled PTSD. Id. at 328.

Waiver of In Pari Delicto Defense

The in pari delicto defense would most likely be considered an affirmative, waivable defense. Legal Information Institute defines an affirmative defense as a defense “in which the defendant introduces evidence, which, if found to be credible, will negate criminal liability or civil liability, even if it is proven that the defendant committed the alleged acts.” Legal Information Institute, https://www.law.cornell.edu/wex/affirmative_defense (last visited August 5, 2022). Application of this definition and the facts of the case at hand would most likely result in classification of the in pari delicto defense as affirmative. Using the Federal Rules of Civil Procedure as guidance would result in a similar outcome. The Federal Rule of Civil Procedure 8(c) stipulates that affirmative defenses, including “illegality”, must be asserted in the answer. Although it is not exactly the same wording, a comparison can be made between the defense of illegality and the defense of in pari delicto. Additionally, most court opinions discussing in pari delicto generally refer to the doctrine as an affirmative defense.

There appears to be only one case on point for the question of whether the affirmative defense of in pari delicto may be waiver. Latham v. Johnson, 262 So.3d 569, 582 (Miss. App. 2018). In Latham, the defendant failed to assert the affirmative defense of in pari delicto in his answer and actively participated in the litigation without asserting the defense until conclusion of trail in a JNOV motion. Id. The court held the defense had been waived for failure to assert the defense within a reasonable time. Id. Although this case supports the notion that an in pari delicto defense may be waived due to failure to include the defense in the Answer, this set of facts is particularly exaggerated in that defendant waited until conclusion of trial to assert the defense. It is possible that a court may be more lenient on assertions made in a timelier manner.

Courts Typically Refuse to Condone Illegal Conduct

Even prior to Pennsylvania’s formal adoption of in pari delicto and the ruling in Albert, Pennsylvania courts have been hesitant to “lend its aid to a man who grounds his action upon an immoral or illegal act.” Fowler v. Scully, 72 Pa. 456, 467 (1872). In the 1991 case of Alexander, the Court of Common Pleas of Bucks County concluded a Plaintiff may not recover in a products liability action when he was using the product to manufacture methamphetamine. Alexander v. Synthatron Corp., 1991 WL 341741 (1991). At trial, the verdict sheet given to the jury stipulated that if the jury found that plaintiff indeed was attempting to produce methamphetamine at the time of the explosion and that the criminal act was a substantial factor in causing plaintiff’s harm, then plaintiff may not recover. Id. at 3. Although Pennsylvania had not previously recognized criminal activity as a defense to a products liability claim, the court reasoned such stipulation on the verdict slip was supported by the common law principle that “a person will not be permitted to profit by his wrongdoing, particularly by his own crime.” Id. at 4; quoting Greiger Estate, 5 A.2d 118 (1939). To further support the decision to include the stipulation, the court in Alexander referenced how courts regularly refuse to enforce illegal contracts and that it is well established a court will not require an insurer to pay out damages caused by arson of the insured. Id.

Immoral conduct by a rehabilitation counselor does not counteract a plaintiff’s own criminal conduct. In Errett, decedent died of an overdose on cocaine and heroin four months after being discharged from a rehabilitation center. Estate of Errett by Whaley v. A Forever Recovery, Inc., 2017 WL 2348723. Upon discharge from the rehabilitation program, decedent was provided with aftercare support and regular contact with an aftercare specialist. Id. at 1. After the death of decedent, decedent’s mother discovered communications between decedent and his aftercare specialist which revealed an inappropriate relationship. Id. at 2. The mother alleged the inappropriate relationship hindered decedent’s ability to receive adequate counseling for his addiction and resulted in decedent’s overdose. Id. However, the Michigan Supreme Court affirmed summary judgment in favor of defendant rehabilitation center on the basis of the wrongful-conduct rule. Id. at 9. The court reasoned:

The decedent chose to use cocaine and heroin, which ultimately resulted in his death. Other than allegedly failing to provide competent addiction treatment aftercare, as alleged by plaintiff, defendants played no role in Errett’s decision to engage in illegal activity, something they were trying to help him prevent. It would be a “mockery of justice” to shift the blame of a person relapsing and engaging in illegal drug use to those treating the drug-addiction, and would condone illegal drug use.

The court also rejected the mother’s argument that decedent would not be benefitting from the illegal conduct because the action is for a wrongful death. Id. at 8. Reasoning, because a wrongful action serves to put the administrator of the estate in decedent’s shoes, an estate cannot recover from a decedent’s illegal conduct. Id.

While it can be said a plaintiff who sustains injuries at a drug and rehabilitation center as a result of illegal drug use is comparatively negligent, a Pennsylvania court will most likely apply in pari delicto to determine if recovery is precluded. Although courts regularly recognize illegal drug consumption as the sort of crime encompassed by in pari delicto, there may be a policy argument that potential plaintiffs are in drug and rehabilitation centers for the purpose of preventing themselves from committing additional crimes. See Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299, 307 (1985) (holding that matters of public policy may be taken into consideration in deciding to apply in pari delicto to the set of facts). However, the Pennsylvania Supreme Court case of Albert clearly states that although drug addiction is devastating, illegal drug consumption is still a criminal act and a strong argument for application of in pari delicto in the present case can be made.