Greenwald v. Van Handel

• Decision Date: 15 April 2014
• Docket Number: No. 19100.,19100.
• Citation: 88 A.3d 467,311 Conn. 370
• Court: Connecticut Supreme Court
• Parties: Lee GREENWALD v. David VAN HANDEL.

311 Conn. 370

88 A.3d 467

Lee GREENWALD

v.David VAN HANDEL.

No. 19100.

Supreme Court of Connecticut.

Argued Oct. 21, 2013.

Decided April 15, 2014.

James P. Brennan, for the appellant (plaintiff).

John F. Costa, with whom was Liam M. West, Stamford, for the appellee (defendant).

Kathryn Calibey, Hartford, filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.

Calum B. Anderson and Frank H. Santoro, Hartford, filed a brief for the Connecticut Defense Lawyers Association as amicus curiae.

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD and ESPINOSA, Js.

McDONALD, J.

The sole issue in this appeal is whether it would violate the public policy of this state to allow the plaintiff, Lee Greenwald, to maintain a professional negligence action against the defendant, David Van Handel, a licensed clinical social worker, on the basis of allegations that the defendant negligently failed to treat the plaintiff after he disclosed to the defendant that he had viewed child pornography. The plaintiff alleges that the defendant's failure to treat him caused him to be subjected to a police task force raid and led to emotional distress and other injuries due to potential criminal prosecution. The trial court granted the defendant's motion to strike the plaintiff's amended complaint on the ground that it would violate public policy to allow the plaintiff to profit from his own criminal acts. The plaintiff claims on appeal that this state has not adopted a wrongful conduct rule that per se bars tort recovery, and even if such a rule generally applies, we should follow case law from another jurisdiction recognizing exceptions to that rule that are applicable in the present case. We conclude that it is unnecessary to adopt any broad rule or exceptions thereto because it clearly would violate public policy to impose a duty on the defendant in the present case to protect the plaintiff from injuries arising from his potential criminal prosecution for the illegal downloading, viewing and/or possession of child pornography. Accordingly, we affirm the judgment of the trial court.

The plaintiff's amended complaint alleged the following facts, which are deemed admitted for purposes of ruling on a motion to strike. See Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003). The plaintiff was a therapy patient of the defendant from February, 1999, when the plaintiff was seven years old, until October, 2008, when he was seventeen years old. On more than one occasion, the plaintiff told the defendant during counseling sessions that he was viewing child pornography on the Internet. The defendant dismissed or ignored the plaintiff's statements, and the plaintiff continued to view child pornography. As a result of the defendant's failure to treat the plaintiff in connection with this conduct, to refer the plaintiff to another mental health professional for treatment, or to notify the plaintiff's parents of his dangerous and criminal behavior, the plaintiff continued to view child pornography on the Internet after he reached the age of majority. In September, 2010, approximately two years after the plaintiff ceased therapy treatment with the defendant, the plaintiff's home was raided by members of a Connecticut State Police Task Force. The police seized the plaintiff's computers, backup hard drives, and other electronic devices. At the time his complaint was filed, the plaintiff was waiting to learn if the police were going to issue a warrant for his arrest. If found guilty of violating the criminal statutes prohibiting the downloading, viewing and/or possession of child pornography, the plaintiff faced a term of imprisonment and could suffer the humiliation, publicity, embarrassment, and economic repercussions associated with the conviction and attendant registration as a sex offender.¹

The record reveals the following additional facts. In January, 2011, the plaintiff brought this action, and in June, 2011, amended his complaint, alleging that the defendant's failure to address his forays into child pornography when he was a minor led to his continued viewing of child pornography and his home being raided and searched by the police. The plaintiff further alleged that, as a consequence of the defendant's negligence, he has spent, and will be required to continue to spend, large sums of money on professional mental health care for his recovery and maintenance. The defendant moved to strike the plaintiff's amended complaint, contending, inter alia, that, as a matter of public policy, Connecticut precludes recovery for the consequences of one's own criminal actions. Over the plaintiff's objection, the trial court granted the defendant's motion and thereafter rendered judgment in his favor. This appeal followed.

On appeal, the plaintiff argues that the trial court improperly struck his complaint because, although Connecticut case law has applied a rule barring plaintiffs from profiting from their own wrongdoing, those cases are distinguishable. None of those cases involved a plaintiff alleging professional negligence against a health care provider that occurred when the plaintiff was a minor. Moreover, they involved actions against innocent defendants or coconspirators. In the absence of applicable case law, the plaintiff urges this court to look to case law of our sister states, specifically Michigan, which recognizes exceptions to the wrongful conduct rule that he contends are applicable in the present case. The plaintiff contends that this court's reasoning in Edwards v. Tardif, 240 Conn. 610, 618, 692 A.2d 1266 (1997), holding that a physician could be liable for a patient's suicide when the risk of suicide was foreseeable and the physician's negligence proximately caused the patient's suicide, supports his claim that he has the ability to proceed in the present case. We conclude that, in light of the particular allegationsin this case, we need not adopt any sweeping rule or exceptions thereto. Instead, we simply conclude that it would violate public policy to impose a duty on the defendant to protect the plaintiff from the injuries arising from the legal consequences of his admitted illegal conduct.

“A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court's ruling is plenary.... We take the facts to be those alleged in the [pleading] that has been stricken and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency.” (Internal quotation marks omitted.) Jarmie v. Troncale, 306 Conn. 578, 583, 50 A.3d 802 (2012).

Although both parties frame their public policy arguments in the abstract, this court examines policy questions in negligence cases within the analytic framework of the duty element.² See, e.g., id., at 598–99, 50 A.3d 802;Fraser v. United States, 236 Conn. 625, 634, 674 A.2d 811 (1996). “Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual.... Although it has been said that no universal test for [duty] ever has been formulated ... our threshold inquiry [is] whether the specific harm alleged by the plaintiff was foreseeable to the defendant.... A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed.... A further inquiry must be made, for we recognize that duty is not sacrosanct in itself ... but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.... The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results.” (Internal quotation marks omitted.) Jarmie v. Troncale, supra, 306 Conn. at 590, 50 A.3d 802.

The trial court in this case did not address the issue of foreseeability, although it was raised as part of an alternative ground in the defendant's motion to strike. This court frequently has noted, however, that “we are not required to address the [issue of] foreseeability if we determine, based on ... public policy ... that no duty of care existed.” Neuhaus v. DeCholnoky, 280 Conn. 190, 218, 905 A.2d 1135 (2006); see also Ryan Transportation, Inc. v. M & G Associates, 266 Conn. 520, 529, 832 A.2d 1180 (2003); Gomes v. Commercial Union Ins. Co., 258 Conn. 603, 618 n. 11, 783 A.2d 462 (2001). Thus, the plaintiff cannot prevail here unless we conclude that it is the public policy of this state to impose a duty on the defendant to protect the plaintiff from injuries resulting from the police raid of his home and impending prosecution as a consequence of his downloading and viewing of child pornography.

This court has recognized the common-law maxims that “[n]o one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. These maxims are dictated by public policy, [and] have their foundation in universal law administered in all civilized countries....” (Internal quotation marks omitted.) Thompson v. Orcutt, 257 Conn. 301, 316, 777 A.2d 670 (2001); see also Gagne v. Vaccaro, 255 Conn. 390, 407, 766 A.2d 416 (2001) (“[w]e recognize the broad general doctrine founded on the maxim ex turpi causa non oritur actio—no cause of action can arise out of an illegal or immoral inducement”). Although we have applied these principles in the contract and equity context; see, e.g., Thompson v. Orcutt, supra,...