Arredondo v. Dugger

• Decision Date: 31 May 2011
• Docket Number: No. 05–09–00625–CV.,05–09–00625–CV.
• Citation: 347 S.W.3d 757
• Parties: Mary Ann ARREDONDO, Individually and as Representative of the Estate of Joel Martinez, Deceased, Appellantv.Geoffrey DUGGER, Appellee.
• Court: Texas Court of Appeals

347 S.W.3d 757

Mary Ann ARREDONDO, Individually and as Representative of the Estate of Joel Martinez, Deceased, Appellant

v.Geoffrey DUGGER, Appellee.

No. 05–09–00625–CV.

Court of Appeals of Texas, Dallas.

May 31, 2011.

Adam Rual Hardison, Hardison Law Firm, Addison, TX, for Appellant.John K. Dunlap, Byrne, Cardenas & Smitherman, Dallas, TX, for Appellee.Before Justices MORRIS, MOSELEY, and LANG.

OPINION

Opinion By Justice MOSELEY.

Appellant Mary Ann Arredondo filed this wrongful death lawsuit against appellee Geoffrey Dugger for damages arising out of the death of her son, Joel Martinez. She alleged Dugger was negligent in delaying to call 911 and in failing to advise paramedics that Martinez had used heroin, and that this negligence contributed to Martinez's death. Dugger answered and moved for traditional summary judgment raising an affirmative defense under the unlawful acts doctrine, the common law doctrine that bars a plaintiff from recovering damages arising out of his own unlawful acts. See Gulf, C. & S.F. Ry. Co. v. Johnson, 71 Tex. 619, 9 S.W. 602, 603 (1888). The trial court granted the motion for summary judgment without specifying the grounds relied on, and later denied Arredondo's motion for new trial.

On appeal, Arredondo argues the trial court erred because the unlawful acts doctrine does not apply to her wrongful death claim and has been superseded by a similar statutory defense that requires conviction for the criminal act. We conclude the wrongful death act does not preclude application of the unlawful acts doctrine, but that section 93.001 ¹ of the civil practice and remedies code applies to Arredondo's claim and controls over the common law. Because the common law unlawful acts doctrine is inapplicable to Arredondo's claim and because Dugger did not establish the elements of the section 93.001 affirmative defense, the trial court erred by granting summary judgment. Accordingly, we reverse the trial court's judgment and remand for further proceedings.

Background

According to his deposition, Dugger went to Martinez's house on the night in question and saw Martinez put some black tar heroin in his pocket before they left to go to the liquor store. After buying some tequila, they went to Dugger's house, drank tequila, smoked marijuana, and snorted black tar heroin. After a while, Martinez passed out. About thirty minutes later, Dugger noticed Martinez was still unconscious, vomiting, and choking. Dugger knew something was wrong with Martinez, but did not call 911 immediately. Instead he called Martinez's mother, the plaintiff Arredondo. However, he told her only that Martinez had been drinking and was throwing up. She said to let him sleep it off. It was another fifteen minutes before Dugger called 911. Police and paramedics arrived about five minutes later.

According to Arredondo's allegations, Dugger then misled the paramedics by telling them Martinez had been drinking, but not telling them Martinez had also taken heroin. The paramedics treated Martinez for alcohol poisoning. Their efforts to revive Martinez failed and he died about thirty minutes after the paramedics arrived. There is evidence that if the paramedics had known that Martinez might have been suffering an overdose of heroin, they would have treated him with additional drugs to counteract the effects of the narcotic.

Arredondo sued Dugger under the wrongful death and survival statutes, alleging Dugger was negligent by delaying calling 911 and by failing to disclose to the paramedics that Martinez had taken heroin. See Tex. Civ. Prac. & Rem.Code Ann. §§ 71.002, 71.021 (West 2008). Dugger answered alleging as an affirmative defense the unlawful acts doctrine. Under this common law defense, if the plaintiff was engaged in an unlawful act that was inextricably intertwined with the claim and the alleged damages would not have occurred but for the plaintiff's unlawful act, the claim is barred. See Johnson, 9 S.W. at 603; Sharpe v. Turley, 191 S.W.3d 362, 366 (Tex.App.-Dallas 2006, pet. denied).

Dugger filed a traditional motion for summary judgment asserting he proved the elements of the unlawful acts doctrine affirmative defense as a matter of law.² He argued the unlawful acts doctrine “is especially applicable to this case because it is uncontested that the deceased, Joel Martinez, ingested illegal drugs just before his death, and the Plaintiff cannot establish her cause of action without conceding that her son had used heroin. In fact, [Martinez's] use of heroin is the central issue in this extremely sad story.” The motion continued, “Here, if [Martinez] had not ingested heroin, cheese,³ and marijuana, then [he] would not have died. Thus, the Plaintiff is barred from recovery because [Martinez's] illegal drug use is the reason he died....”

In her summary judgment response, Arredondo argued that Dugger had failed to prove the necessary elements of the defense, i.e., that (1) at the time of the injury, (2) Martinez was engaged in an illegal act, and (3) the illegal act contributed to the injury. Arredondo also argued the common law unlawful acts defense does not apply to this case because it is inconsistent with the terms of the wrongful death statute and with the statutory defense against plaintiffs who have been finally convicted of a felony that was the sole cause of the damages. See Tex. Civ. Prac. & Rem.Code Ann. §§ 71.002, 71.006, 93.001.

After a hearing, the trial court granted Dugger's motion and dismissed Arredondo's claims with prejudice. The trial court also denied Arredondo's motion for rehearing and motion for new trial.

Arredondo does not argue on appeal whether Dugger established the elements of the unlawful acts affirmative defense as a matter of law.⁴ She contends only that the defense does not apply here because of “express contrary language” in the wrongful death statute and because the defense has been superseded by section 93.001.

Standard of Review

The standards for reviewing summary judgments are well established and we follow them in reviewing this appeal. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex.1985). We review a trial court's summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). A defendant moving for traditional summary judgment must either (1) disprove at least one essential element of the plaintiff's causes of action as a matter of law or (2) plead and conclusively establish each essential element of an affirmative defense. See Doe v. Boys Clubs of Greater Dall., Inc., 907 S.W.2d 472, 476–77 (Tex.1995). Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact, thereby precluding summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Talford v. Columbia Med. Ctr. at Lancaster Subsidiary, L.P., 198 S.W.3d 462, 464 (Tex.App.-Dallas 2006, no pet.).

Applicable Law

A. Wrongful Death Act

Arredondo's cause of action is based on sections 71.002 and 71.006 of the wrongful death act. Subsection 71.002(b) provides that “a person is liable for damages arising from an injury that causes an individual's death if the injury was caused by the person's ... wrongful act, neglect, carelessness, unskilfulness or default.” Tex. Civ. Prac. & Rem.Code Ann. § 71.002(b). ⁵ Section 71.006 provides that “an action under this subchapter is not precluded because the death is caused by a felonious act or because there may be a criminal proceeding in relation to the felony.” Id. § 71.006. ⁶

B. Unlawful Acts Doctrine

The unlawful acts doctrine prevents a plaintiff from recovering claimed damages that arise out of his or her own unlawful conduct:

In those cases where it is shown that, at the time of the injury, the plaintiff was engaged in the denounced or illegal act, the rule is, if the illegal act contributed to the injury, he cannot recover; but, if plaintiff's act did not contribute to the injury, the fact alone that at the time he was engaged in an act in violation of law will not of itself preclude a recovery.

Johnson, 9 S.W. at 603 (citations omitted).

The common law doctrine is based on the public policy against allowing wrongdoers to benefit from their own wrongs. See Sharpe, 191 S.W.3d at 366. If the plaintiff's unlawful act is inextricably intertwined with the claim, and the alleged damages would not have occurred but for the unlawful act, the plaintiff may not recover as a matter of law. Id. The unlawful conduct, however, must be a proximate cause of the injury complained of in order to bar recovery. See Denison & S. Ry. Co. v. Carter, 98 Tex. 196, 82 S.W. 782, 784 (1904) (trial court should have admitted evidence of ordinance prohibiting jumping from moving train in suit for damages to minor plaintiff injured after jumping from moving street car; “It is not the mere fact that, when injured, [plaintiff] was violating law, but the fact that his violation led to his injury, that defeats him.”); St. Louis, B. & M. Ry. Co. v. Price, 269 S.W. 422, 423, 428 (Tex. Comm'n App.1925, judgm't adopted) (plaintiff's violation of statute must be proximate cause of injury before it will preclude recovery); Pyeatt v. Anderson, 269 S.W. 429, 430 (Tex. Comm'n App.1925, judgm't adopted) (plaintiff allowed to recover absent evidence plaintiff's driving motorcycle without permission of owner was proximate cause of collision).

C. Statutory Defenses

In 1987, the legislature enacted a statutory affirmative defense to certain claims for personal injury or death brought by persons convicted of a felony. See Tex. Civ. Prac. & Rem.Code Ann. § 93.001(a)(1). The legislature enacted another, similar statute in 1995. See Tex. Civ. Prac. & Rem.Code Ann. §§ 86.001–.007 (West 2011). We address these statutes in more detail herein.

D. Statutory Construction

Resolution of this case requires us to construe several st...