A Criminal Act Bars Recovery despite Negligence and Injury


Consider this narrative: An 82-year-old frail man using a cane for balance is standing on a deserted subway platform waiting for a train. A stranger suddenly emerges from the shadows, throws the elderly man violently to the concrete, gropes menacingly through his pockets and pulls out a wallet, then starts running toward the exit. In the encounter, the horrified man cries out frantically for help. His screams attract the attention of a police officer who just by happenstance is entering the platform area. Seeing the man sprawled on the ground and the mugger running away, the police officer gives chase, draws his Glock automatic and shouts out, “Stop or I’ll shoot”. The mugger disregards the warning and continues his escape as the officer fires a single round. The discharged bullet crashes into the mugger’s back who immediately topples to the ground. The officer charges in, cuffs the mugger, and calls for an ambulance and back-up. Within a short time, the mugger is removed under guard and transported by an EMT crew to an ER, given emergency treatment, admitted into the hospital with police security, and finally diagnosed with a severe spinal cord injury resulting in paraplegia.

The mugger is charged with a felony assault, but the story does not stop there. Because he is indigent, a lawyer is assigned to defend him. Having no defense, the mugger cops a plea and is sentenced by the Court to three years in a state penitentiary. After the passage of several months, the felon now confined to a wheelchair does a 180-degree pivot and surprisingly brings suit against the municipality seeking money damages as a result of being shot by the police officer during his escape following the felonious act the mugger committed in the subway station upon the elderly man. A judge denies the municipality’s motion to dismiss the case and it ultimately proceeds to a trial by jury.

Convincing evidence is presented to the jury addressing the brutal attack upon the elderly victim and of course, the jury reaches a verdict in favor of the municipality. Right? Wrong! In fact, the jury returns a verdict on behalf of the felonious mugger for several millions of dollars, and the municipality doesn’t even appeal the verdict.

The elderly victim of the attack is so infuriated by what he considers to be an outrageously unjust verdict that he reaches out to a prestigious law firm, seeking their assistance to intercede. The firm is equally outraged by what occurred, and acts pro bono (without fee) and files motion papers seeking to enjoin the payment of any money to the felon on the theory that the mugger should not receive a benefit resulting from his own serious criminal conduct. The Court denies the injunction, resulting in a full payment being made to the felon. The curtain comes down on this narrative that is taken from an actual court case even as legal scholars would argue that law and justice in this bizarre scenario, was out to lunch. All of which takes us to a more recent case that deals with the overall issue of this article.

There is a legal maxim that one cannot profit from one’s own wrongdoing. For example, if a burglar breaks into a house, and while engaged in such a serious criminal act falls and injures himself on a defective step which the homeowner knew was defective and should have been repaired, the burglar has no cause of action despite the negligence of the homeowner. This might sound like an extreme example, but it graphically presents the rule set out in the title of this article. A small number of cases have been brought in New York in which the plaintiff suffered injury which was a direct result of a “serious criminal act” in which the plaintiff-criminal was engaged at the time. The application of common sense which is at the root of our common law provides that one who is injured as a direct result of the commission of a serious criminal act should not benefit from such criminal conduct by having the right to bring suit against the negligent party, no matter the degree of negligence. There are some strict exceptions to this rule however, but they are extremely rare. For example, a homeowner might be held liable if he set a bear trap next to an open window in order to lure a burglar for the sole purpose of ensnaring him, thereby mangling his foot should he enter the house through the open window.

The cases within the limits of this article do not come before the courts often, but an interesting one was reported recently in the New York Law Journal on September 25, 2012 (Monticelli v. Wal-Mart Stores East, and decided by District Judge McAvoy in the U.S. District Court, Northern District of New York).

In that case, Monticelli purchased large quantities of a dust remover called “Clean Safe”. It developed that it was common knowledge that the dust remover was being used as an inhalant that produced a psychoactive high. Shortly after inhaling the product, Monticelli became seriously ill, and died. An autopsy disclosed a mixture of the “Clean Safe” inhalant and cocaine in his system. Monticelli’s estate brought an action against Wal-Mart (the store of purchase), and the manufacturer, claiming that they knew that the product was being abused, and despite that knowledge, failed to take necessary measures to add sufficient elements to the dust remover so as to “deter inhalant abuse”.

The defendants moved to dismiss the cause of action relying upon the principle of law that one cannot profit by one’s commission of a serious criminal act (in this case, the use of cocaine), even if the defendants were negligent in failing to add sufficient inhalant-deterrents to their product. The Court denied the motion but still recited the rule holding that it did not apply in that case, since there was an absence of proof that Monticelli was committing a criminal act (using cocaine) at the time he inhaled the dust remover.

The rule in the Monticelli case provides an interesting example of how our common law is usually shaped by the universal application of plain and ordinary common sense. This writer reiterates, “usually shaped” by common sense considering the outcome of the felonious subway mugger, and innocent elderly victim who was brutally attacked. All of this proves that even well-intended jurors, as well as experienced judges have human frailties and make their share of mistakes. And the maxim that one cannot profit from the commission of a serious criminal act still holds true even if on rare occasions the lady of justice seems to be taking a nap.

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Finz & Finz, P.C. is a New York and Long Island personal injury law firm based out of Mineola, NY. It was founded in 1984 and is highly rated, with many honors and awards of excellence.