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GREENWALD v. VAN HANDEL—DISSENT

EVELEIGH, J., dissenting. I respectfully dissent. The

majority holds that the plaintiff in this malpractice

action, Lee Greenwald, cannot pursue his case because

‘‘it clearly would violate public policy to impose a duty

on the defendant [David Van Handel] to protect the

plaintiff from injuries arising from his potential criminal

prosecution for the illegal downloading, viewing and/

or possession of child pornography.’’ I disagree with

the majority’s conclusion on several grounds.

First, I believe that the wrongful conduct rule is ill

suited for tort actions. That rule originated as an equitable defense in contract law under the Latin phrase ex

turpi causa non oritur actio, which means ‘‘no cause

of action can arise out of an illegal or immoral inducement.’’ Gagne v. Vaccaro, 255 Conn. 390, 407, 766 A.2d

416 (2001); see also Black’s Law Dictionary (8th Ed.

2004). In my view, this rule is contrary to Connecticut

tort law in that it vitiates the principles of proximate

cause and comparative negligence. Indeed, if the plaintiff’s conduct is so offensive to our public policy, let the

defendant establish the plaintiff’s conduct as a special

defense and allow a jury to evaluate the nature of the

wrongdoing. There are many instances involving a

plaintiff’s conduct that members of the community

would no doubt find odious, such as drunk driving, but

we do not bar plaintiffs who engage in such conduct

from bringing an action in an attempt to justify their

entitlement to damages to a jury. For example, if a

drunk driver is stopped at a stop sign and subsequently

rear-ended, our law allows the drunk driver to bring an

action for damages. The defendant can establish the

drunk driving as a special defense.

Second, the adoption of the wrongful conduct rule,

under these circumstances, would create a body of law

that is both inconsistent in its application and insufficient as a guide to trial courts confronted with the issue.

For instance, when does a court decide that behavior

is so wrongful that the action must be dismissed? Is it

a matterforthis court to decide on a case-by-case basis?

How will a trial court know to dismiss a case in the

future, unless the case involves child pornography?

Third, in my view, the ruling is contrary to an already

established state policy allowing malpractice cases

when the plaintiff has procured a good faith certificate

letter pursuant to General Statutes § 52-190a. Indeed,

if the legislature had intended for a certain class of

people to have their malpractice actions barred even

if they could establish malpractice, it could have easily

set forth the barred class or classes in the statute. In

this action, the plaintiff obtained a good faith certificate

establishing malpractice, yet we are now depriving him

of the opportunity of a trial by jury. In this case, the
plaintiff is claiming that his ‘‘habit’’ of viewing child

pornography while he was a minor was not properly

treated and that he still has the problem as an adult.

What if a physician prescribed too much medication

and, as a result, a person became addicted to drugs to

the point that he or she either possessed or sold drugs?

Would we now say that either the possession or sale

of drugs is so wrongful that a malpractice action against

the physician would not survive? Does the reasoning

of our opinion today apply with equal force to all persons who have been unsuccessfully treated for an addiction to the point that, even where a health care

professional is of the opinion that the medical professional in the case has violated professional standards,

the conduct involved in the addiction is so ‘‘wrongful’’

there can be no cause of action? Have we now, in effect,

created a new immunity for professionals involved in

the treatment of individuals addicted to child pornography, drugs, gambling, alcohol, or a myriad of other

addictions, because the conduct involved in those

addictions is so wrongful? If not, how do we decide

where the line is to be drawn? All of the conduct associated with such addictions is proscribed by state statute.

Where does this court differentiate between the offensive conduct in violation of a state statute that prohibits

a malpractice action and the offensive conduct in violation of a state statute that does not bar a malpractice

action? I believe that we now enter an area known as

the impenetrable ‘‘Serbonian bog’’ where the precise

lines of legal jurisprudence are never clear. See Matarazzo v. Rowe, 225 Conn. 314, 318 n.3, 623 A.2d 470 (1993)

(‘‘ ‘[a] gulf profound, as that Serbonian bog Betwixt

Damiata and Mount Casius old, [w]here armies whole

have sunk’ ’’), quoting J. Milton, Paradise Lost, bk. 2,

ll. 592–94. Rather, at any given time,the lines will change

in the direction of the wind.

Fourth, assuming, arguendo, that the majority is correct in holding that Connecticut’s public policy bars the

plaintiff’s claims related to the criminal investigation

and prosecution, this complaint reads as a standard

malpractice case with claims seeking damages for further medical bills and treatment as the result of the

defendant’s breach of the standard of care. In my view,

regardless of whether the plaintiff should be barred

from recovering for injuries arising from his criminal

prosecution, the other claims should have survived the

motion to strike. For these reasons, I cannot join the

majority opinion and most respectfully dissent.

I

The majority’s conclusion that the plaintiff’s claims

are barred because of the nature of his behavior runs

contrary to the well established principles of our tort

law. During the first part of the twentieth century we

recognized that a person ‘‘is not barred of redress for

an injury suffered by himself, nor liable for an injury
suffered by another, merely because he is a lawbreaker.’’ Munroe v. Hartford Street Railway Co., 76

Conn. 201, 206, 56 A. 498 (1903). Thus, when the driver

of a milk wagon left his horse and wagon unattended,

in violation of a city ordinance, and the wagon was

on the tracks of the defendant’s railroad when it was

subsequently struck by one of the defendant’s cars

being operated at a high rate of speed, we stated that

‘‘[i]n doing an unlawful act a person does not necessarily

put himself outside the protection of the law.’’ Id. This

court further explained that ‘‘[i]n actions to recover for

injuries not intentionally inflicted but resulting from a

breach of duty which another owes to the party

injured—commonly classed as actions for negligence—

the fact that the plaintiff or defendant at the time of

the injury was a lawbreaker may possibly be relevant as

an incidental circumstance, but is otherwise immaterial

unless the act of violating the law is in itself a breach

of duty to the party injured in respect to the injury

suffered.’’ Id. Since 1890, this court recognized the fact

that ‘‘the rule applicable to negligence and to illegal

acts on the part of the plaintiff is precisely the same.’’

Broschart v. Tuttle, 59 Conn. 1, 20, 21 A. 925 (1890).

Further, in Hoelter v. Mohawk Service, Inc., 170 Conn.

495, 503, 365 A.2d 1064 (1976), we stated that ‘‘[i]t may

safely be stated that [a]ll authorities agree that plaintiffs

in tort actions may so conduct themselves as to bar

recovery for injuries suffered by them. This recoverybarring conduct, while given different labels, is ofttimes

treated within the general concept of contributory negligence.’’(Internal quotation marks omitted.)‘‘[T]he principles which determine the relation of the negligent

conduct in the one case, or the illegal act in the other,

to the resulting injury as a proximate cause, are the

same.’’ Monroe v. Hartford Street Railway Co., supra,

207. Thus, the plaintiff’s involvement in illegal activity

did not bar recovery under contributory negligence

when there was a lack of causation between the activity

and the injuries. Bagre v. Daggett Chocolate Co., 126

Conn. 659, 664–65, 13 A.2d 757 (1940) (participation in

illegal bingo game did not preclude action against candy

manufacturerforinjuries sustained while eating candy);

see also Kurtz v. Morse Oil Co., 114 Conn. 336, 341–42,

158 A. 906 (1932) (minor decedent’s conduct driving

underage and without license did not preclude estate’s

recovery); 4 Restatement (Second), Torts § 889 (1979)

(recovery not barred ‘‘merely because at the time of

the interference he was committing a tort or a crime’’).

I see no reason why we should stray from these well

established principles.

If the plaintiff brought about his own misfortune and

was more than 50 percent negligent, the defendant

would have been successful in establishing a special

defense and a verdict would be rendered in favor of

the defendant. To conclude that it was proper to grant

a motion to strike because this court finds the plaintiff’s
behavior so abhorrent that it violates the public policy

of this state runs counter, in my view, to both the law

of torts and principles of comparative negligence and

proximate cause. In effect, the position adopted by the

majority establishes that someone who engages in child

pornography cannot bring an action against the therapist who treated him regardless of the nature of that

treatment. Thus, in my view, the majority’s position

reverts this state to the old principle of contributory

negligence, a doctrine which operated as a complete

bar to recovery where the plaintiff was even 1 percent

negligent. See Williams Ford, Inc. v. Hartford Courant

Co., 232 Conn. 559, 585, 657 A.2d 212 (1995). The majority is imposing its opinion of what is the public policy

of this state, such that an otherwise valid malpractice

case cannot be presented to the jury. In effect, the

majority holds that the plaintiff’s conduct must have

been at least 51 percent negligent so that he could never

recover under these circumstances.

Our legislature has, however, abolished the doctrine

of contributory negligence and established the doctrine

of comparative negligence, indicating that a plaintiff

can still recover if he was even 50 percent negligent.

See General Statutes § 52-572h (b). Nowhere in the comparative negligence statute, however, did the legislature

determine that either certain types of conduct or certain

classes of people would not be subject to the comparative negligence doctrine. The wrongful conduct rule

adopted by the majority today undermines this system

by shifting the responsibility for determining the nature

of the conduct of the parties away from the jury. We are,

in effect, as argued by the Connecticut Trial Lawyers

Association in its amicus brief (amicus brief), simply

reviving ‘‘the old doctrine of contributory negligence

. . . under a pseudonym.’’ This result conflicts with the

policy and intent of our comparative negligence statute.

This result, in my view, inappropriately circumvents

and frustrates the legislature’s purposeful mandate to

abolish those doctrines that result in a complete bar to

recovery. In this ruling, we are establishing the public

policy of the state for civil cases involving child pornography, when the legislature has proscribed the conduct

as a crime, but has not proscribed the conduct in a civil

action. In my view, when we engage in such a scattered

approach to public policy considerations we are overreaching our boundaries and setting a dubious

precedent.

It is axiomatic that causation is essential to any malpractice action. See Boone v. William W. Backus Hospital, 272 Conn. 551, 575, 864 A.2d 1 (2005). Proximate

cause is determined by the substantial factor test—

whether harm was ‘‘of the same general nature as the

foreseeable risk created by the defendant’s negligence.’’

(Internal quotation marks omitted.) Monk v. Temple

George Associates, LLC, 273 Conn. 108, 124, 869 A.2d
179 (2005); see also Barry v. Quality Steel Products,

Inc., 263 Conn. 424, 441 n.17, 820 A.2d 258 (2003). A

plaintiff’s conduct does not break the chain of causation

unless it was unforeseeable. This is because criminal

ortortious acts may be foreseeable and within the scope

of risk created by a defendant’s conduct. Craig v. Driscoll, 262 Conn. 312, 331–33, 813 A.2d 1003 (2003). Proximate cause is generally a factual determination for the

jury. Label Systems Corp. v. Aghamohammadi, 270

Conn. 291, 321, 852 A.2d 703 (2004).

The majority correctly states that ‘‘[t]he 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).’’ (Internal

quotation marks omitted.)

In my view, it is important to analyze this quote in

the context of the cases cited. Neuhaus was a medical

malpractice case concerning the issue of whether the

plaintiffs’ complaints against the defendants were time

barred, or whether the statute of repose was tolled with

respect to either of the defendants by the continuing

course of conduct doctrine. In that case, we held that

‘‘[g]iven the fact that [the plaintiff] ceased to be under

[the defendants’] care subsequent to his birth, we agree

with the Appellate Court’s analysis and conclude that,

as a matter of public policy, [the defendant] did not

have a duty to warn [the plaintiff] of the known health

risks flowing from a diagnosis of respiratory distress

syndrome.’’ Neuhaus v. DeCholnoky, supra, 280 Conn.

218. Thus, the question in Neuhaus was whether the

court would impose a duty on the physician to warn

the patient after the termination of the doctor-patient

relationship.

Further, in Ryan Transportation, Inc., the plaintiff

did not allege any relationship with the defendant

beyond that of their commercial cotenancy. We held

that ‘‘[i]n light of our determination that there did not

exist a relationship involving [the defendant’s] custody

of or control over the plaintiff that would warrant the

imposition of a duty to protect the plaintiff from third

party conduct, we need not address the issue of foreseeability.’’Ryan Transportation,Inc. v. M & G Associates,

supra, 266 Conn. 529. Again, we looked to the nature of

the initial relationship in order to determine the public

policy consideration.

Gomes involved a claim against a hotel clerk and

her employers for the clerk’s actions in, as alleged,
negligently preventing a hotel guest from ‘‘ ‘rendering

aid to the plaintiffs.’ ’’ Gomes v. Commercial Union

Ins. Co., supra, 258 Conn. 605. We held that, if we

allowed such a cause of action, ‘‘we would be shifting

the loss to parties who were not responsible for the

plaintiffs’ property damage. We note that our determination that public policy reasons militate against imposing

a duty of care on the hotel defendants is a fact-bound

determination and pertains only to the specific facts of

this case.’’ Id., 618. I note that Gomes cited, as authority

for this conclusion, Lodge v. Arett Sales Corp., 246

Conn. 563, 572, 717 A.2d 215 (1998), a case in which

this court concluded that an alarm company did not

owe a duty to firefighters injured as a result of the

transmission of a false alarm, and a case which, unlike

Gomes, was determined by a jury. In Lodge, We noted

that our conclusion that the ‘‘imposition of liability . . .

would be unreasonable [was] not based on a conclusion

that the defendants [were] entitled to immunity because

of their socially beneficial function. Rather, it [was]

a fact-bound determination based on the attenuation

between the plaintiffs’ harm and the defendants’ conduct.’’ Id., 585 n.16.

The foregoing cases demonstrate that the duty under

consideration is the initial duty which may or may not

be owed to the plaintiff. In my view, in the present

case, there can be no question that during the years

the defendant was treating the plaintiff, while the plaintiff was a minor, the defendant owed the plaintiff a

duty to render his services pursuant to the applicable

standard of care. The fact that the plaintiff suffered

consequences years later after the alleged breach of

that duty, does not change the fact that the initial duty

existed. The majority certainly cannot contest the fact

that the defendant, a licensed clinical social worker,

owed a duty to the plaintiff during the treatment period.

The majority’s conclusion that, ‘‘in the present case,

the defendant owed the plaintiff no duty’’ due to public

policy considerations becomes particularly problematic

when the public policy considerations do not address

this initial treatment, but rather the later conduct.

I also wonder why, if the prior decisions of this court

cited by the majority constantly emphasize that the

public policy considerations were fact-based determinations based upon the peculiar facts of the individual

cases, we are not waiting for a jury or fact finder to

determine the facts, instead of deciding those cases on

the underdeveloped record of either a motion to strike

or a summary judgment?

In my view, it is unnecessary for this court to adopt

the wrongful conduct rule. Whether a plaintiff’s illegal

or wrongful conduct will limit a defendant’s liability to

foreseeable and reasonable bounds is already part of

Connecticut’s proximate cause analysis. See Barry v.

Quality Steel Products, Inc., supra, 263 Conn. 440–41.
In the context of medical malpractice, this court

addressed the issue of a physician’s liability for a

patient’s suicide in Edwards v. Tardif, 240 Conn. 610,

692 A.2d 1266 (1997). Some may argue that the act of

suicide is both intentional and wrongful. This court held

in Edwards, however, that liability exists if the suicide

is a foreseeable risk or falls within the general scope

of risk created by the failure to follow the requisite

standard of care. Id., 618 n.7. We also noted in Edwards

that ‘‘we have recently adopted the standard set forth

in § 442B of the Restatement [(Second) of Torts] that

[w]here the negligent conduct of the actor creates or

increases the risk of a particular harm and is a substantial factor in causing the harm, the fact that the harm

is brought about through the intervention of another

force does notrelieve the actor of liability, except where

the harm is intentionally caused by a third person and

is not within the scope of the risk created by the actor’s

conduct.’’ (Internal quotation marks omitted.) Id., 617.

We further opined that ‘‘[p]hysicians have a duty to

exercise the degree of care that physicians in that particular field would exercise in similar circumstances. If

the physician’s treatment of the patient falls below the

relevant standard of care, liability may be imposed if

it is reasonably foreseeable that suicide will result if

such care is not taken. Accordingly, we hold that a

physician may be liable for a patient’s suicide when the

physician knew or reasonably should have known of

the risk of suicide and the physician’s failure to render

adequate care and treatment proximately causes the

patient’s suicide.’’ Id., 618.

The wrongful conduct rule effectively negates the

Edwards holding. It focuses solely upon the plaintiff’s

conduct thereby completely ignoring the scope of risk

analysis incorporated in Connecticut’s causation law.

I see little difference between our holding in Edwards

and the situation in this case. The plaintiff has already

obtained an opinion from a similar health care provider

that the defendant ‘‘appears to have committed medical

negligence by failing to meet the standard of care

required of a [l]icensed [c]linical [s]ocial [w]orker.’’

Therefore, if it was reasonably foreseeable that the

plaintiff would continue to engage in the conduct of

viewing child pornography, the health care professional

could be found liable. This is a jury determination. The

rule adopted by the majority suggests that, because the

plaintiff’s conduct was against public policy, he cannot

win regardless of the culpability of the health care professional by whom he was treated. Our ruling, in my

view, is tantamount to rewriting § 52-190a and has the

effect of overruling, sub silentio, Edwards.

II

I also disagree with the holding of the majority opinion because I think that the wrongful conduct rule is

ill suited to tort actions and does not provide adequate
guidance to trial courts. Commentators have described

the wrongful conduct rule as a ‘‘barbarous relic of the

worst there was in puritanism.’’ F. Harper et al., Torts

(2d Ed. 1986) § 17.6, pp. 617–18. Its resurrection has

been further condemned as follows: ‘‘[M]oral indignation must not be mistaken for public policy. . . . The

obscure equitable doctrine ex turpi causa non oritur

actio should not be used in a misguided attempt to

blunt the litigation crisis in the United States or other

western common-law nations. . . . The law—and tort

law especially—does not distribute compensation

based on who is a good person and who is not. The ex

turpi causa defense blurs the lines between our gut

hesitation to aid a wrongdoer and the more important

public policies underlying tort law, allowing the former

to exert undue influence. The doctrine leads the courts

to focus improperly upon the punctilios of the plaintiff

rather than the public policy factors that should underlie a reasoned assignment of legalresponsibility.’’(Footnotes omitted; internal quotation marks omitted.) R.

Prentice, ‘‘Of Tort Reform and Millionaire Muggers:

Should An Obscure Equitable Doctrine Be Revived To

Dent the Litigation Crisis?’’ 32 San Diego L. Rev. 53,

132–33 (1995). ‘‘The serious misconduct doctrine operates not to produce predictability and certainty, but

perversely to inject chaos into the process and provide

fertile ground for exploitation and abuse.’’ J. King, ‘‘Outlaws and Outlier Doctrines: The Serious Misconduct

Bar in Tort Law,’’ 43 Wm. & Mary L. Rev. 1011, 1018

(2002). ‘‘[A]s a freestanding doctrine, [it] lurks like a

rusting old tool in the crawl space beneath the core

tort elements and defenses. One is never quite sure

what its standing is or when its archaic blade will next

appear to dispatch a tort claim.’’ Id., 1063.

As set forth aptly in the amicus brief, several reasons

have been asserted as a basis for the rationale behind

the wrongful conduct rule, namely, that permitting such

actions would: (1) condone and encourage criminal

conduct; (2) allow the wrongdoer to profit from criminal conduct; (3) render the legal system as a mockery

of justice; and (4) allow wrongdoers to shiftresponsibility for the illegal acts on to other parties. In my view,

these reasons are not persuasive.

Adoption of the rule as a deterrent to criminal conduct is unrealistic. The rule’s application has been so

unpredictable that ‘‘no reasonable claim that ex turpi

causa will deter criminal action by plaintiffs can be

credibly made.’’ R. Prentice, supra, 32 San Diego L.

Rev. 114. Indeed, ‘‘most persons engaging in criminal

conduct do not expect to be injured in the process, at

least not by negligence, and therefore would seldom be

influenced by the thought of being barred from suing.’’ J.

King, supra, 43 Wm. & Mary L. Rev. 1045. Also, barring

tort recovery seems inconsequential when compared

to the deterrent effect of potential criminal sanctions.

Id. Consequently, the threat of criminal penalties serves
as a more effective deterrent for criminal conduct and,

therefore, the wrongful conduct rule does not add any

deterrent effect.

Likewise, ‘‘[t]he ‘may not profit’ rationale is conclusory and unconvincing.’’ Id., 1044. Barring recovery

does not prevent a plaintiff from profiting from wrongdoing. The basic purpose of tort law is ‘‘to restore an

injured party to the position he or she would have been

in if the wrong had not been committed.’’ (Internal

quotation marks omitted.) Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 248, 905 A.2d 1165 (2006). As

correctly noted in the amicus brief, ‘‘there is no profit

when one is simply made whole . . . .’’ (Internal quotation marks omitted.)

‘‘Simply put, the moral characteristics of the parties

before a court have little or no relevance to that court’s

capacity to do justice or injustice.’’ R. Prentice, supra,

32 San Diego L. Rev. 122. Allowing a victim who was

engaged in illegal or wrongful conduct to receive compensation due to injuries sustained through the negligence of another does not taint the judicial process any

more than when a criminal’s conviction is overturned.

Id. Barring an alleged plaintiff’s negligence action, however, contaminates the court system by conferring

immunity on a tortfeasor merely because the tort was

done to someone engaged in illegal or wrongful conduct. See J. King, supra, 43 Wm. & Mary L. Rev. 1048.

As stated in the amicus brief, ‘‘[t]his is especially true

when a defendant’s negligent conduct proximately

causes the plaintiff’s injury by creating, or increasing,

the risk of foreseeable harm, despite the plaintiff’s illegal or wrongful conduct. [The doctrines of both] proximate cause and comparative negligence serve to limit

a wrongdoer’s ability to completely shift responsibility

to others. The [wrongful] conduct rule does not operate

within this modern network. See, e.g., Sonoran Desert

Investigations, Inc. v. Miller, [213 Ariz. 274, 281, 141

P.3d 754 (App. 2006)]. The rule’s ultimate purpose is to

bar recovery. It does so by unjustifiably concentrating

solely on the plaintiff’s fault contrary to our legislative

scheme.’’ Therefore, I categorically reject the rationale

for the rule as being neither cogent nor in accord with

our state statutes. Where do we go from here? Is this

court to become the arbiter on a case-by-case basis

when conduct is so wrongful that a plaintiff should not

recover as a matter of public policy? At the very least,

should notthe conductrelate to the claimed negligence?

I fearthat we are opening the doorto a doctrine that will

lead to inconsistent and, at times, unexplainable results.

Eleven other states have adopted the wrongful conduct rule in some form. Some of these states have

enacted statutes implementing the rule. For instance,

in California, pursuant to the personal responsibility

act codified in § 3333.3 of the California Civil Code

(Deering 2005), convicted felons are precluded from
recovering in negligence actions for injuries ‘‘in any

way proximately caused’’ during the commission of a

felony or during flight thereafter. See Jenkins v. Los

Angeles, 74 Cal. App. 4th 524, 527, 88 Cal. Rptr. 2d

149 (1999). Additionally, § 3333.4 of the California Civil

Code (Deering 2005) bars noneconomic, and other nonpecuniary damages in automobile accidents if a plaintiff

is operating under the influence of drugs or alcohol, or

owned or operated a vehicle without proper insurance

or proof of financial responsibility. Oregon has also

enacted a statutory defense barring recovery in personal injury or death actions when the plaintiff was

engaged in a specific criminal activity. Or. Rev. Stat.

§ 31.180 (2013) (aggravated murder, murder, or class A

or B felony). A few of the other states would bar an

action ‘‘to those injured in the course of committing a

serious criminal act . . . .’’ (Citation omitted; internal

quotation marks omitted.) Izzo v. Manhattan Medical

Group, P.C., 164 App. Div. 2d 13, 18, 560 N.Y.S.2d 644

(1990); see Oden v. Pepsi Cola Bottling Co. of Decatur,

Inc., 621 So. 2d 953, 955 (Ala. 1993) (public policy rule

bars actions ‘‘that were a direct result of the injured

party’s knowing and intentional participation in a crime

involving moral turpitude’’); Rimet v. Mortell, 680

N.E.2d 867, 874 (Ind. App.) (plaintiff’s criminal conduct

resulting in conviction bars plaintiff from imposing liability on others), transfer denied, 690 N.E.2d 1185 (Ind.

1997); Izzo v. Manhattan Medical Group, P.C., supra,

18 (fact that decedent drug addict forged prescription

did not automatically bar wrongful death claim against

pharmacy under wrongful conduct rule because plaintiff ‘‘lacked the capacity to know that it was wrong to

forge prescriptions’’); Feltner v. Casey Family Program, 902 P.2d 206, 208–10 (Wyo. 1995) (public policy

precludes plaintiff from recovering injuries sustained

as direct result of serious violation of law). I note that

Alabama still adheres to the contributory negligence

doctrine as a complete bar to recovery. See Ex parte

Goldsen, 783 So. 2d 53, 56 (Ala. 2000). Further, in Indiana, contributory negligence bars a medical malpractice

case against a physician. Cavens v. Zaberdac, 849

N.E.2d 526, 528 n.2 (Ind. 2006).

Unquestionably, under the facts of this case, the doctrine would not apply in many of these states, particularly the cases cited by the majority, because there is

no allegation that the claimed injuries occurred while

the plaintiff was in the course of committing a crime.

The complaint alleges that the plaintiff’s house was

searched and that he was waiting to hear if he was

going to be arrested, and what would happen to him if

he were found guilty. It further states that he will incur

medical bills in the future. There is no claim for damages

as the result ofinjuries sustained during the commission

of a crime. Moreover, at least in the states that have

proscribed the action by way of statute, the statute

provides clear guidance and a defined public policy as
adopted by the legislature. In this case, although the

conduct is clearly illegal, we have no clearly defined

public policy by way of statute, ordinance, or regulation

to the effect that the plaintiff cannot either recover or

at least bring a civil action.

I note that in the context of labor arbitration proceedings, when we search for a well-defined state public

policy we look to criminal statutes, noncriminal statutes, city charters, professional conduct regarding

attorneys, and administrative regulations. We have

stated, however, that ‘‘[r]atherthan requiring that public

policy to be grounded on a particular type of source,

however, in determining whether a party has satisfied

its burden of demonstrating the existence of a welldefined public policy, we have instead focused our

inquiry on whether the alleged public policy is in fact

clearly discernible in the purported source.’’ (Internal

quotation marks omitted.) AFSCME, Council 4, Local

1565 v. Dept. of Correction, 298 Conn. 824, 838, 6 A.3d

1142 (2010); see also State v. AFSCME, Council 4, Local

391, 309 Conn. 519, 526–27, 69 A.3d 927 (2013). In my

view, this is a matter for the legislature and this court

should not be engaged in proscribing certain actions

on a case-by-case basis, especially when there is no

clearly defined public policy contained in any source

that would bar civil actions under the facts of this case.

The rule adopted by the majority is particularly harsh

in the sense that it imposes an additional civil penalty—

namely, not being able to bring an action and recover

damages—on the already existing statutory scheme of

criminal sanctions. This outcome has been criticized

as severe because it results in unequal punishment. See

R. Prentice, supra, 32 San Diego L. Rev. 116–18. Because

the rule’s bar to recovery is not necessarily dependent

upon the degree of illegal or wrongful conduct, unequal

civil penalties can arise from identical misconduct. The

rule also operates without the traditional criminal system safeguards. ‘‘It is questionable indeed whether it

is wise for the courts to assume the responsibility of

imposing such a sanction when the legislature has not

seen fit to do so.’’ F. Harper et al., supra, § 17.6, p. 618.

III

The majority’s holding runs contrary to § 52-190a.

Section 52-190a (a) provides in relevant part that: ‘‘No

civil action or apportionment complaint shall be filed

to recover damages resulting from personal injury or

wrongful death occurring on or after October 1, 1987,

whether in tort or in contract, in which it is alleged

that such injury or death resulted from the negligence

of a health care provider, unless the attorney or party

filing the action or apportionment complaint has made

a reasonable inquiry as permitted by the circumstances

to determine that there are grounds for a good faith

belief that there has been negligence in the care or

treatment of the claimant. The complaint, initial plead-
ing or apportionment complaint shall contain a certificate of the attorney or party filing the action or

apportionment complaint that such reasonable inquiry

gave rise to a good faith belief that grounds exist for

an action against each named defendant orfor an apportionment complaint against each named apportionment

defendant. To show the existence of such good faith,

the claimant or the claimant’s attorney, and any apportionment complainant or the apportionment complainant’s attorney, shall obtain a written and signed opinion

of a similar health care provider, as defined in section

52-184c, which similar health care provider shall be

selected pursuant to the provisions of said section, that

there appears to be evidence of medical negligence

and includes a detailed basis for the formation of such

opinion. . . .’’ There is no provision in this statute barring certain classes of plaintiffs who may have engaged

in certain misconduct. According to the terms of the

statute, if there is a good faith belief on the part of

the attorney or claimant and a good faith certificate is

attached, the claimant can pursue his action. In my

view, this statute represents the public policy of the

state regarding malpractice actions. We should not be

rewriting the statute to say that even if a person qualifies

under the terms of the statute, that person cannot bring

an action if he or she has engaged in the wrongful

conduct of viewing child pornography. If the legislature

wishes to bar certain classes from the coverage of the

statute, it certainly knows how to insert the appropriate

language. As we have frequently stated, ‘‘it is a well

settled principle of statutory construction that the legislature knows how to convey its intent expressly; e.g.,

Dept. of Public Safety v. Freedom of Information Commission, 298 Conn. 703, 729, 6 A.3d 763 (2010); or to

use broader or limiting terms when it chooses to do

so. See, e.g., Stitzer v. Rinaldi’s Restaurant, 211 Conn.

116, 119, 557 A.2d 1256 (1989).’’ Scholastic Book Clubs,

Inc. v. Commissioner of Revenue Services, 304 Conn.

204, 219, 38 A.3d 1183, cert. denied, U.S. , 133 S.

Ct. 425, 184 L. Ed. 2d 255 (2012).

IV

Assuming, arguendo, that the majority is correct in

holding that the plaintiff’s wrongful conduct should bar

this claim, a proposition which I obviously oppose,

there is an additional allegation that has not been considered. The majority acknowledges that ‘‘[a]lthough

the complaint contains a single allegation that, because

of the defendant’s negligence, the plaintiff has and will

incur costs for mental health care necessary to his

recovery and maintenance, he has made clear in his

submissions to the trial court and this court that he is

not advancing a negligence claim independent of his

illegal conduct.’’ Respectfully, I disagree with the characterization. In my view, the plaintiff is not seeking

damages forthe legal consequences of his criminal acts.

He is seeking damages because the defendant’s alleged
negligent treatment failed to address his ‘‘habit’’ of viewing child pornography. It is axiomatic that he would

have to establish, at trial, that this negligence was the

proximate cause of any of his claimed damages. As the

majority indicates, the facts alleged in the plaintiff’s

amended complaint ‘‘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).’’ ‘‘A motion to strike challenges the legal

sufficiency of a pleading, and, consequently, requires

no factual findings by the trial court. . . . [The court

takes] the facts to be those alleged in the [pleading]

. . . and . . . construe[s] the [pleading] in the manner

most favorable to sustaining its legal sufficiency. . . .

Thus, [i]f facts provable in the [pleading] would support

a cause of action [or special defense], the motion to

strike must be denied.’’ (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc.,

277 Conn. 113, 117–18, 889 A.2d 810 (2006).

The plaintiff alleges, in his amended complaint dated

June 15, 2011, several grounds of negligence against

the defendant. He then alleges the following: ‘‘(13) The

plaintiff . . . faces being sentenced to a term of imprisonment, serving a period of probation, registering as a

sex offender . . . and suffering the humiliation, publicity, embarrassment and economic repercussions . . . .

(15) As a consequence of the negligence and carelessness of the defendant . . . the plaintiff . . . has

been the target of a [police] raid and search of his

home and seizure of computers, cell phones and other

electronic devices. (16) As a consequence of the negligence and carelessness of the defendant . . . the plaintiff . . . has incurred and in the future will be forced

to spend large sums of money for professional mental

health care including therapy and prescription drugs

necessary for his recovery and maintenance.’’ Clearly,

paragraphs 13 and 15 relate to the conduct that the

majority classifies as ‘‘wrongful.’’ Paragraph 16 is, however, a standard allegation in a malpractice action. It

can survive on its own, even if the court rules that the

wrongful conduct rule applies. The plaintiff reaffirms

this allegation in his brief when he states: ‘‘The plaintiff

has alleged as damages the need for ongoing therapy,

medications, humiliation, and emotional distress.’’ The

fact that the prime focus of the plaintiff’s argument was

related to the question ofthe ‘‘wrongful conduct’’ should

not prevent us from examining the entire complaint and

making a determination about the separate allegations

claimed as damages. Essentially, the complaint would

then read, if the offending paragraphs were removed,

that the defendant committed negligence and the plaintiff has to undergo additional treatment and incur bills

as a result thereof. I see no reason why this entire cause

of action should be stricken.

My opinion is buttressed by our law as it relates to

motions to strike. ‘‘The function of a motion to strike
is to test the legal sufficiency of a pleading, it admits

all facts well pleaded. See Practice Book § [10-39]. The

role of the trial court [is] to examine the [complaint],

construed in favor of the plaintiffs, to determine

whether the [pleading party has] stated a legally sufficient cause of action.’’ (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242

Conn. 375, 378, 698 A.2d 859 (1997). Further, ‘‘[i]f any

facts provable under the express or implied allegations

in the plaintiff’s complaint support a cause of action

. . . the complaint is not vulnerable to a motion to

strike.’’ Bouchard v. People’s Bank, 219 Conn. 465, 471,

594 A.2d 1 (1991). Upon examination of the entire complaint, in my view, paragraph 16, when coupled with

the negligence count contained in paragraph 14, states

a valid cause of action for medical malpractice. The

allegation contained in paragraph 16 has no relationship

to the ‘‘wrongful conduct’’ which the majority holds

violates the public policy of our state. My view is supported by the fact that we are obliged to construe the

complaint in favor of the plaintiff, to determine whether

the pleading party has stated a cause of action. In my

view, regardless of the wrongful conduct allegations,

the entire complaint should not have been stricken

because paragraphs 14 and 16 state a valid malpractice

claim for which the plaintiff submitted a good faith

certificate and opinion letter.

For all of the foregoing reasons, I would reverse the

judgment of the trial court, deny the defendant’s motion

to strike, and allow this case to proceed to a jury trial.

Accordingly, I respectfully dissent.