Dugger v. Arredondo

• Decision Date: 30 August 2013
• Docket Number: No. 11–0549.,11–0549.
• Citation: 56 Tex. Sup. Ct. J. 1099,408 S.W.3d 825
• Parties: Geoffrey DUGGER, Petitioner, v. Mary Ann ARREDONDO, Individually and as Representative of the Estate of Joel Martinez, Deceased, Respondents.
• Court: Texas Supreme Court

408 S.W.3d 825

56 Tex. Sup. Ct. J. 1099

Geoffrey DUGGER, Petitioner,

v.Mary Ann ARREDONDO, Individually and as Representative of the Estate of Joel Martinez, Deceased, Respondents.

No. 11–0549.

Supreme Court of Texas.

Argued Nov. 6, 2012.

Delivered Aug. 30, 2013.

James C. Harrington, Texas Civil Rights Project, Austin, TX, for Amicus Curiae Texas Civil Rights Project.

John K. Dunlap, Byrne, Cardenas & Aris, LLP, Dallas, TX, for Petitioner Geoffrey Dugger.

Adam R. Hardison, Hardison Law Firm, Dallas, TX, for Respondents Mary Ann Arredondo.

Justice GREEN delivered the opinion of the Court, in which Chief Justice JEFFERSON, Justice JOHNSON, Justice GUZMAN, Justice LEHRMANN, and Justice BOYD joined.

In this wrongful death suit, we consider the viability of the common law “unlawful acts doctrine” as an affirmative defense in light of Texas's proportionate responsibility scheme and the statutory affirmative defense provided in section 93.001 of the Texas Civil Practice and Remedies Code. Under the unlawful acts doctrine, a plaintiff cannot recover damages if it can be shown that, at the time of injury, the plaintiff was engaged in an illegal act that contributed to the injury. See Gulf, C. & S.F. Ry. Co. v. Johnson, 71 Tex. 619, 9 S.W. 602, 603 (1888). The trial court rendered summary judgment for the defendant on his affirmative defense based on the unlawful acts doctrine. The court of appeals reversed, holding that section 93.001 superseded the unlawful acts doctrine. Arredondo v. Dugger, 347 S.W.3d 757, 768–69 (Tex.App.-Dallas 2011, pet. granted). We affirm the judgment of the court of appeals, but on different grounds. We hold that the Legislature's adoption of the proportionate responsibility scheme in Chapter 33 of the Civil Practice and Remedies Code evidenced its clear intention that a plaintiff's illegal conduct not falling within a statutorily-recognized affirmative defense be apportioned rather than barring recovery completely. The common law unlawful acts doctrine cannot coexist with this scheme. Accordingly, we affirm the court of appeals' judgment that reversed the summary judgment and remanded the case to the trial court for further proceedings.

I. Factual and Procedural Background

On February 2, 2007, Geoffrey Dugger went to his friend Joel Martinez's house. While getting ready to leave the house, Dugger saw Martinez put in his pocket “cheese”—a mixture of black-tar heroin and Tylenol PM. After purchasing tequila and a cigar, which they later filled with marijuana to make a “blunt,” the two men returned to the house where Dugger lived with his parents. While in Dugger's bedroom and backyard, both men consumed several tequila drinks, snorted lines of cheese, and smoked marijuana. Later in the evening, Martinez fell asleep while watching television. About thirty minutes later, Dugger noticed that Martinez was making a choking sound and subsequently began vomiting. Dugger yelled for his parents, and they came down the hall to his bedroom. Instead of calling 911, Dugger called Martinez's mother, Mary Ann Arredondo, and told her that Martinez had been drinking and was throwing up. Arredondo told Dugger to let Martinez sleep it off. After another fifteen minutes had passed, Dugger's father called 911. The police arrived about five minutes later, shortly after midnight. The paramedics arrived about ten minutes after the police. Dugger did not tell the police or paramedics that Martinez had ingested heroin, only that he drank tequila and smoked marijuana. The paramedics treated Martinez for alcohol poisoning, but their efforts proved unavailing. Martinez died less than two hours after the call to 911.

Arredondo sued Dugger under the wrongful death and survival statutes, alleging that Dugger was negligent both in failing to call 911 immediately and in failing to disclose Martinez's heroin use to the paramedics. SeeTex. Civ. Prac. & Rem.Code §§ 71.002(a)–(b), .021. In his answer, Dugger asserted an affirmative defense based on the common law unlawful acts doctrine, which bars a plaintiff from recovery if, at the time of injury, he was engaged in an unlawful act that was “inextricablyintertwined with the claim and the alleged damages would not have occurred but for the illegal act.” Sharpe v. Turley, 191 S.W.3d 362, 366 (Tex.App.-Dallas 2006, pet. denied); accord Johnson, 9 S.W. at 603;Russell v. Ingersoll–Rand Co., 841 S.W.2d 343, 347 (Tex.1992) (providing that any defenses that would be available against the decedent if he or she were alive may be asserted against his or her estate). Dugger then moved for summary judgment on his affirmative defense based on the unlawful acts doctrine, which the trial court granted.¹ The trial court denied Arredondo's motion for rehearing and motion for new trial. Arredondo appealed, arguing that section 93.001 of the Civil Practice and Remedies Code replaced the common law unlawful acts doctrine, and that the statutory affirmative defense did not apply in this case.² The court of appeals reversed, holding that section 93.001 supersedes the common law unlawful acts doctrine.³347 S.W.3d at 769. We granted Dugger's petition. 55 Tex.Sup.Ct.J. 757 (Tex. June 8, 2012).

II. Analysis of Unlawful Acts Doctrine Jurisprudence

The issue before us is whether the common law unlawful acts doctrine remains available as an affirmative defense to completely bar a plaintiff's recovery in tort cases in light of Texas's proportionate responsibility scheme and the Legislature's more recent enactment providing for an affirmative defense based on a plaintiff's felonious conduct. Dugger argues that an affirmative defense based on the unlawful acts doctrine is available in personal injury and wrongful death cases even when the elements of section 93.001's statutory affirmative defense are not satisfied. Arredondoargues that the unlawful acts doctrine conflicts not only with section 93.001, but also with the proportionate responsibility scheme in Chapter 33 of the Civil Practice and Remedies Code, which replaced former common law defenses that provided a complete bar to recovery in tort cases. SeeTex. Civ. Prac. & Rem.Code §§ 33.001–.004. We agree with Arredondo that the Legislature's enactment of Chapter 33's proportionate responsibility scheme and section 93.001 are dispositive in this case.

“[S]tatutes can modify common law rules, but before we construe one to do so, we must look carefully to be sure that was what the Legislature intended.” Energy Serv. Co. of Bowie v. Superior Snubbing Servs., Inc., 236 S.W.3d 190, 194 (Tex.2007). In construing statutes, our goal is to give effect to the intent expressed by the language in the statute. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.2008) (citing State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006)). We begin our analysis by reviewing the common law unlawful acts doctrine.

A. The Unlawful Acts Doctrine

More than 120 years ago, this Court recognized the common law unlawful acts doctrine as barring a plaintiff from recovering damages if it could be shown that, at the time of injury, the plaintiff was engaged in an illegal act that contributed to the injury.⁴See Johnson, 9 S.W. at 603. The doctrine originated with the principle of in pari delicto or “unclean hands” in the contract context, but was extended to tort causes of action. See Rico v. Flores, 405 F.Supp.2d 746, 759–61 (S.D.Tex.2005) (describing the use of the unlawful acts and in pari delicto doctrines in Texas jurisprudence), rev'd on other grounds,481 F.3d 234 (5th Cir.2007). The doctrine is based on the public policy that wrongdoers should not be compensated for their immoral acts. See, e.g., Ward v. Emmett, 37 S.W.3d 500, 502 (Tex.App.-San Antonio 2001, no pet.); Saks v. Sawtelle, Goode, Davidson & Troilo, 880 S.W.2d 466, 470–71 (Tex.App.-San Antonio 1994, writ denied).

As early as 1888, we recognized that “no action will lie to recover a claim for damages, if to establish it the plaintiff requires aid from an illegal transaction, or is under the necessity of showing or in any manner depending upon an illegal act to which he is a party.” Johnson, 9 S.W. at 603 (holding that the unlawful acts doctrine did not apply because there was no allegation or proof showing that, at the time of the injury, the plaintiff did any illegal act contributing to his injury). Since then, “[c]ourts throughout Texas ... have used this rule, along with public policy principles, to prevent a plaintiff from recovering damages that arose out of his or her own illegal conduct.” Ward, 37 S.W.3d at 502 (internal citations omitted). Courts applying the unlawful acts doctrine have required that the plaintiff's illegal act be “inextricably intertwined” with the claim for the illegal act to bar recovery. See, e.g., id. at 503. An illegal act is “inextricably intertwined with the claim” if a plaintiff cannot prove a claim without having to prove his or her own illegal act. See, e.g., Norman v. B.V. Christie & Co., 363 S.W.2d 175, 177–78 (Tex.Civ.App.-Houston 1962, writ ref'd n.r.e.) (quoting Stone v. Robinson, 234 S.W. 1094, 1095 (Tex.1921)). In Texas tort cases, the doctrine has most recently arisen in medical and legal malpractice cases. See, e.g., Ward, 37 S.W.3d at 501;Saks, 880 S.W.2d at 470.

Recently, scholars and courts have disagreed over the viability of the unlawful acts doctrine in modern jurisprudence. The Restatement (Second) of Torts and respected legal scholars reject the principle that tortious or criminal conduct can completely bar recovery. SeeRestatement (Second) of Torts § 889 (1979); W. Page Keeton et al., Prosser and Keeton on Torts 232 (5th ed.1984); see generally Joseph H. King, Jr., Outlaws and Outlier Doctrines: The Serious Misconduct Bar in Tort Law, 43 Wm. & Mary L.Rev. 1011 (2002) (suggesting that the unlawful acts doctrine, or “serious misconduct bar,” should be abandoned by American courts). Several courts and legislatures, on the other hand, have approved of the unlawful...