Stopera v. DiMarco

554 N.W.2d 379, 218 Mich. App. 565

• Court: Michigan Court of Appeals
• Decided: October 15, 1996
• Docket: Docket 179907
• Status: Published

Opinions

Bandstra, P.J.

Plaintiff appeals as of right the trial court’s grant of summary disposition for defendant. We reverse and remand.

Although summary disposition was requested in this case under both MCR 2.116(C)(8) and (10), it is clear from the record the motion was granted under MCR 2.116(C)(8), for failure to state a claim oh which relief can be granted. A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim, and we review summary disposition granted on this ground by considering as true the factual allegations in plaintiffs complaint. Marcelletti v Bathani, 198 Mich App 655, 658; 500 NW2d 124 (1993). Plaintiff, a single woman, was employed as a secretary in the finance department at Ford Motor Company’s world headquarters in Dearborn, Michigan. Defendant was also employed by Ford as an executive. At all times relevant to this action, defendant was married with one daughter. For about one year, defendant and plaintiff had a romantic relationship and met repeatedly at plaintiff’s home to engage in sexual intercourse. During this relationship, plaintiff contracted the human papillomavirus (HPV), which manifested itself as condylomas or genital warts. Plaintiff claims that defendant was aware that he had HPV, that he had a duty to inform plaintiff of his condition, and that he breached his duty to inform her, resulting in her infection. Plaintiff claims that she suffered and will continue to suffer physical, mental, and emotional pain as a result of defendant’s conduct.

The lower court granted summary disposition to defendant relying on Glazier v Lee, 171 Mich App 216; 429 NW2d 857 (1988), and reasoning that, because plaintiff was engaged with defendant in the illegal activity of adultery, which resulted in her injuries, under the wrongful-conduct rule she could not bring an action.¹ After summary disposition was granted in this case, Glazier and other Michigan precedents applying the wrongful-conduct rule were reviewed and summarized by a unanimous court in Orzel v Scott Drug Co, 449 Mich 550; 537 NW2d 208 (1995), a precedent that provides guidance to this panel in considering plaintiffs appeal.

In Orzel, the plaintiff alleged that the defendant, a pharmacist, acted negligently in the manner that a controlled drug was dispensed to the plaintiff pursuant to prescriptions issued by licensed physicians. The plaintiff admitted that he was addicted to the drug and that his purchases were illegal. The Court’s analysis centered on the wrongful-conduct rule, which was summarized as:

When a plaintiff’s action is based, in whole or in part, on his own illegal conduct, a fundamental common-law maxim generally applies to bar the plaintiff’s claim:

“[A] person cannot maintain an action if, in order to establish his cause of action, he must rely, in whole or in part, on an illegal or immoral act or transaction to which he is a party.”

When a plaintiff’s action is based on his own illegal conduct, and the defendant has participated equally in the illegal activity, a similar common-law maxim, known as the “doctrine of in pari delicto” generally applies to also bar the plaintiff’s claim:

“[A]s between parties in pari delicto, that is equally in the wrong, the law will not lend itself to afford relief to one as against the other, but will leave them as it finds them.” [Id. at 558 (citations omitted).]

Plaintiff argues that this rule should not be imposed against her because the statute making adultery a felony, MCL 750.30; MSA 28.219, is never enforced, regularly ignored, and “subrogated” to overriding public policy concerns regarding the spread of venereal diseases.² We disagree. The Court in Orzel stated that “[t]o implicate the wrongful-conduct rule, the plaintiffs conduct must be prohibited or almost entirely prohibited under a penal or criminal statute” without suggesting that the statute had to be regularly enforced. Id. at 561. Further, one rationale for the wrongful-conduct rule is “by making relief potentially available for wrongdoers, courts in effect would condone and encourage illegal conduct.” Id. at 559. Accepting as true plaintiffs premise that the adultery statute is regularly violated and rarely enforced, it would be inappropriate for this Court to condone and further encourage this illegality by adopting plaintiffs argument. Finally, the fact that a statute has not been recently enforced does not mean that it has been repealed de facto. Washtenaw Co Rd Comm’rs v Public Service Comm, 349 Mich 663, 682; 85 NW2d 134 (1957) (“statutes do not wither by disuse”). The Legislature has not seen fit to repeal the adultery statute, notwithstanding arguments that it is archaic and rarely enforced, perhaps believing the statute still exerts a moral authority on people’s behavior for the common good. It would be a long overstepping of our role as a court to ignore a statute duly enacted and never repealed by a coequal branch of government.

However, we conclude that summary disposition was improperly granted to defendant for another reason. In Orzel, supra at 569, the Court recognized a “culpability exception” to the wrongful-conduct rule where the plaintiff and the defendant have both engaged in illegal conduct, but one is more culpable than the other. “[E]ven though a plaintiff has engaged in serious illegal conduct and the illegal conduct has proximately caused the plaintiffs injuries, a plaintiff may still seek recovery against the defendant if the defendant’s culpability is greater than the plaintiff’s culpability for the injuries, such as where the plaintiff has acted ‘ “under circumstances of oppression, imposition, hardship, undue influence, or great inequality of condition or age.” ’ ” Id. (citations omitted).

We find that the culpability exception applies under the facts alleged in the instant case. Plaintiff contends that defendant engaged in sexual intercourse with her while knowing that he had hpv, a sexually transmissible disease, and while not telling her about the risk she was taking.³ It is one thing to engage in illegal adultery, as both plaintiff and defendant did, but quite another to do so knowing that a likely result will be infecting a sexual partner with a serious disease while not making that fact known, an offense of which only defendant is allegedly guilty.⁴ Defendant was thus significantly more “culpable”; the blame for plaintiffs contracting HPV rests largely with him because he is almost entirely responsible for that injury. See The American Heritage Dictionary (2d College ed) (“culpable” is defined as “[Responsible for wrong or error; blameworthy”). To use other words drawn from Orzel, supra at 569, plaintiff suffered under “circumstances of . . . great inequality of condition” in the sense that she did not act with the same knowledge that defendant did in entering into the adulterous relationship. While defendant knew of his disease and its transmissibility, plaintiff did not share that knowledge and could not adjust her conduct accordingly.

Because the culpability exception applies under the facts alleged, plaintiff’s action against defendant was improperly dismissed for failing to state a claim.⁵ We reverse and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

M. D. Schwartz, J., concurred.

1 The logically prior question, whether a negligence action can be maintained for damages arising from a sexually transmitted disease as alleged in this case, was not argued or decided below and was not raised as an issue in this appeal. We note that a federal court has recognized that cause of action, Doe v Johnson, 817 F Supp 1382, 1393 (WD Mich, 1993), but our decision should not be considered as indicating approval or disapproval of that conclusion.

2 Plaintiff does not argue that she did not know defendant was married when she entered into a sexual relationship with him.

3 Plaintiff also argues that defendant used his position as a “high-powered executive” at Ford along with lies about his intentions to leave his wife to “dupe” plaintiff into the affair. These arguments would not protect plaintiff from criminal liability under the adultery statute and, similarly, they do not trigger the “culpability exception” to the wrongful-conduct rule imposed against plaintiff for her actions in violation of that statute. In the absence of the additional element present in this case, i.e., defendant’s alleged failure to inform her of his hpv infection, plaintiff’s action would be barred by the wrongful-conduct rule.

4 Although, as the dissent points out, plaintiff should have known that sexual promiscuity in today’s world is, as a general matter, risky business, defendant’s culpability for the injury was significantly greater because of the specific knowledge he had about his condition and his failure to warn plaintiff of the imminent danger he presented to her.

5 As we stressed in the preceding paragraph, this case involves a defendant who was significantly more culpable than the plaintiff. We consider this necessary for application of the culpability exception. In its discussion of the applicability of the exception, the Orzel Court listed only situations where a defendant was egregiously more at fault than a plaintiff, Orzel, supra at 569, without suggesting that a slight difference in the degree of culpability would be sufficient for its application. Further, to apply the culpability exception in cases where a defendant is only slightly more blameworthy would likely eviscerate the wrongful conduct rule entirely; presumably, a plaintiff will almost always be able to argue that, if the allegations of a complaint are proved, a defendant’s misconduct will be shown to be at least somewhat greater than the plaintiff’s. Under our analysis, this would be insufficient to avoid summary disposition. We reject the dissent’s suggestion that ours is a “broad reading” of the relative-culpability exception and conclude it will not swallow the wrongful-conduct rule.