Estate of Michael Travis Errett v. a Forever Recovery Inc

STATE OF MICHIGAN

COURT OF APPEALS

ESTATE OF MICHAEL TRAVIS ERRETT, by UNPUBLISHED

DEBORAH WHALEY, Independent May 30, 2017

Administratrix,

Plaintiff-Appellant,

v No. 331521

Kent Circuit Court

A FOREVER RECOVERY, INC., and SAGE LC No. 15-000457-NH

SIMMONS,

Defendants-Appellees,

and

STEPHEN ROBINSON, M.D.,

Defendant.

Before: BECKERING, P.J., and MARKEY and SHAPIRO, JJ.

PER CURIAM.

In this action alleging claims of medical and ordinary negligence, plaintiff Deborah

Whaley, as independent administratrix for the Estate of Michael Travis Errett1, appeals as of

right the trial court’s opinion and order granting summary disposition pursuant to MCR

2.116(C)(8) in favor of defendants, A Forever Recovery, Inc. (“AFR”) and Sage Simmons.2

Because the trial court did not err in granting summary disposition based on the wrongful-

conduct rule, we affirm.

1

Whaley was Travis Errett’s mother.

2

Defendant Stephen Robinson, M.D. was dismissed from this matter without prejudice by

stipulation of the parties.

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I. PERTINENT FACTS

This case arises out Errett’s attempt to overcome his drug addiction by seeking treatment

at AFR. Errett, a Texas resident, was 23 years old when he died. He had been abusing various

drugs since the age of 15. In 2008, he was hospitalized for detoxification at Baylor All Saints in

Fort Worth, Texas. In 2009, Errett sought treatment for his chemical dependency at Sundown

Ranch. At some point between his discharge from Sundown Ranch and his admission at AFR,

Errett went to a drug rehabilitation facility called Harris Methodist Springwood. On April 27,

2011, he was arrested in Fort Worth, Texas, after being pulled over by police and admitting that

he had cocaine and heroin.3 On May 1, 2011, following his arrest, Errett sought treatment for

heroin and cocaine addiction and was admitted to Texoma Medical Center Behavioral Health

Center, where he stayed for “a couple weeks.” At some point thereafter, Errett told Whaley that

he had used drugs again and needed help. Whaley was going to take him to a rehab facility in

San Antonio that had been recommended by their insurance company, but Errett did not want to

go there because he did not want a traditional 12-step program as was offered at that facility.

Errett discovered AFR by looking on the Internet and making some telephone calls. He

underwent inpatient rehabilitation treatment at AFR, located in Battle Creek, Michigan, from

September 7, 2011 to December 4, 2011. After completing the program, he returned to Texas.

As part of its program, AFR provided “aftercare” support once a patient was discharged

from the facility. The aftercare program involved regular contact between the AFR aftercare

specialist, in this case Simmons, and Errett to provide support and encouragement in Errett’s

attempts to overcome his addiction. It is alleged here that Errett and Simmons developed a

personal relationship that was outside the scope of the aftercare relationship, although it appears

that this relationship occurred entirely via telephone, e-mails, and texts. There is no evidence

that this relationship involved any physical contact between the two. On April 6, 2012,

approximately four months after his discharge from AFR, Errett relapsed again and died of an

overdose of cocaine and heroin.

Whaley later discovered the electronic communications between her son and Simmons.

She sued defendants, raising theories of medical and ordinary negligence associated with the

relationship that developed between Errett and Simmons. She sought to hold defendants

accountable for Errett’s death, alleging that the romantic relationship that developed caused

Errett to be unable to receive appropriate counseling and support for his addiction, leading to his

relapse and overdose. Defendants AFR and Simmons jointly moved the trial court for summary

disposition pursuant to MCR 2.116(C)(10). The trial court granted summary disposition to

defendants pursuant to MCR 2.116(C)(8), limiting its consideration of defendants’ motion to the

3

Errett subsequently pleaded guilty to one count of possession of less than one gram of heroin

and one count of possession of less than one gram of cocaine, both in violation of TEX. HEALTH

& SAFETY, § 481.115(b). His adjudication was deferred, and he was placed on community

supervision for a period of 3 years.

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pleadings.4 The trial court held that because of Errett’s illegal conduct of using cocaine and

heroin, which was a proximate cause of his death and thus formed the basis of his estate’s

claimed injuries, the claim was barred by the common-law wrongful-conduct rule, and that

neither exception to the wrongful-conduct rule applied under the circumstances.

II. ANALYSIS

Whaley argues on appeal that the wrongful-conduct rule should not apply in this case for

multiple reasons. We disagree.

A. STANDARD OF REVIEW

“This Court reviews the grant or denial of summary disposition de novo to determine if

the moving party is entitled to judgment as a matter of law. In making this determination, the

Court reviews the entire record to determine whether defendant was entitled to summary

disposition.” Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).

“A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of

the claim on the basis of the pleadings alone,” and “[t]he motion must be granted if no factual

development could justify the plaintiff’s claim for relief.” Bailey v Schaaf, 494 Mich 595, 603;

835 NW2d 413 (2013) (quotation marks and citation omitted). “All well-pleaded factual

allegations are accepted as true and construed in a light most favorable to the nonmovant.”

Johnson v Pastoriza, 491 Mich 417, 435; 818 NW2d 279 (2012).

“Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine

issue regarding any material fact and the moving party is entitled to judgment as a matter of

law.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). A motion pursuant

to MCR 2.116(C)(10) is reviewed “by considering the pleadings, admissions, and other evidence

submitted by the parties in the light most favorable to the nonmoving party.” Latham v Barton

Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). “The moving party must specifically

identify the matters that have no disputed factual issues, and it has the initial burden of

supporting its position by affidavits, depositions, admissions, or other documentary evidence.”

Bronson Methodist Hosp v Auto-Owners Ins Co, 295 Mich App 431, 440-441; 814 NW2d 670

(2012) (citations omitted). “The party opposing the motion then has the burden of showing by

evidentiary materials that a genuine issue of disputed material fact exists.” Id. “A genuine issue

of material fact exists when the record, giving the benefit of reasonable doubt to the opposing

party, leaves open an issue upon which reasonable minds might differ.” West, 469 Mich at 183.

4

The trial court recognized that defendants had not asserted the wrongful-conduct rule as an

affirmative defense, but stated that it would have permitted defendants to amend their responsive

pleadings to add such a defense pursuant to MCR 2.118(A)(2), which would have resulted in the

same outcome.

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B. WRONGFUL-CONDUCT RULE

The Michigan Supreme Court explained the requirements, limitations, and exceptions

relevant to application of the wrongful-conduct rule in the seminal case of Orzel v Scott Drug

Co, 449 Mich 550; 537 NW2d 208 (1995). In Orzel, the injured party was John Orzel, who was

addicted to Desoxyn, a prescription form of methamphetamine. Id. at 552, 554. He began using

the drug by purchasing it from his co-workers. Id. at 554. He then began obtaining prescriptions

for the drug and having the prescriptions filled at the defendant pharmacy, while also obtaining

the drug from co-workers and other pharmacies. Id. at 554-555. Because of his excessive use of

Desoxyn, Orzel developed amphetamine psychosis and paranoid schizophrenia, and he required

hospitalization on more than one occasion. Id. at 555-556.

Orzel’s guardian and other relatives brought a lawsuit against the defendant pharmacy.

The plaintiffs claimed that the defendant had breached its common-law and statutory duties to

Orzel by filling the prescriptions without asking for identification, without allowing an adequate

amount of time between prescriptions, and for the improper purpose of “weight control” rather

than the proper purpose of “obesity,” and that this breach caused Orzel’s addiction and resulting

mental illness. Id. at 552-553. The defendant moved for summary disposition, which the trial

court granted on the basis that Orzel’s illegal conduct barred the plaintiffs’ recovery. Id. at 557.

This Court reversed the trial court, Orzel v Scott Drug Co, unpublished opinion per curiam of the

Court of Appeals, issued December 14, 1993 (Docket No. 117270), the majority concluding that

Orzel’s illegal conduct “should not operate to bar the plaintiffs’ claim and that comparative

negligence principles should apply to determine the extent of their potential recovery.” Id. The

Michigan Supreme Court granted the defendant’s application for leave to appeal this Court’s

judgment in order to determine, among other things, whether Orzel’s illegal conduct barred the

plaintiffs’ claim. The Supreme Court held that it did. Id. at 577. In so doing, the Court

explained the wrongful-conduct rule as follows:

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.

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We shall refer to these maxims collectively as the “wrongful-conduct

rule.” Michigan courts have long recognized the existence of the wrongful-

conduct rule. [Id. at 558-559 (citations omitted; alterations in the original).]

The Orzel Court identified two “limitations” on the wrongful-conduct rule. Id. at 561,

564. First, a plaintiff’s claim is not automatically barred under this rule merely because he

engaged in illegal conduct when he was injured; rather, “[t]o implicate the wrongful-conduct

rule, the plaintiff’s conduct must be prohibited or almost entirely prohibited under a penal or

criminal statute.” Id. at 561. Second, “[f]or the wrongful-conduct rule to apply, a sufficient

causal nexus must exist between the plaintiff’s illegal conduct and the plaintiff’s asserted

damages.”5 Id. at 564.

The Orzel Court also identified two exceptions to the wrongful-conduct rule. Id. at 569,

570. First is the culpability exception, which “may apply where both the plaintiff and defendant

have engaged in illegal conduct, but the parties do not stand in pari delicti.” Id. at 569. Pursuant

to this exception, a plaintiff who has engaged in serious illegal conduct that proximately caused

the plaintiff’s injuries,

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. at 569 (citations

omitted)].

The second exception is the statutory-basis exception, which may be implicated “where the

statute that the plaintiff alleges the defendant violated allows the plaintiff to recover for injuries

suffered because of the violation.” Id. at 570.

Applying the facts to the law, the Orzel Court held that the wrongful-conduct rule barred

the claims of Orzel and his relatives because all of the claims were based at least in part on

Orzel’s own illegal conduct. Id. at 577. The Court concluded that Orzel’s repeated violations of

the controlled substance act by obtaining, possessing, and using Desoxyn without a valid

prescription was serious illegal conduct that justified application of the wrongful-conduct rule

because there is serious harm and punishment involved with illegally using drugs, and

5

The “wrongful conduct rule only applies if a plaintiff’s wrongful conduct is a proximate cause

of his injuries.” Cervantes v Farm Bureau Gen Ins Co, 272 Mich App 410, 417; 726 NW2d 73

(2006), citing Orzel, 449 Mich at 564. “The unlawful act must be at once the source of both his

criminal responsibility and his civil right. The injury must be traceable to his own breach of the

law and such breach must be an integral and essential part of his case.” Cervantes, 272 Mich

App at 417 (quotation marks and citations omitted). On the other hand, a plaintiff who has

engaged in a wrongful act may be able to recover “if the wrongful act was a remote link in the

chain of causation.” Id., quoting Manning v Bishop of Marquette, 345 Mich 130, 137; 76 NW2d

75 (1956).

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“transactions involving controlled substances are almost entirely prohibited.” Id. at 562-563.

The Orzel Court also concluded that Orzel’s decision to illegally use Desoxyn in large quantities,

causing him to suffer from mental illness, was a proximate cause of his injuries. Id. at 567. The

court further reasoned that there was a causal connection between the illegal conduct and Orzel’s

injuries because the plaintiffs could not establish a cause of action for injuries resulting from the

use of Desoxyn without relying on Orzel’s illegal use of the drug. Id. at 568.

Next, the Orzel Court concluded that the culpability exception did not apply because,

while both parties committed wrongful conduct, the two parties were equally at fault and “[b]oth

parties played pivotal roles in making the illegal acts possible. Id. at 569-570. The Court further

reasoned that the culpability exception should not be applied because it was the plaintiff “who,

by his continuous illegal use of Desoxyn, caused himself to become both addicted and insane.”

Id. at 570. Finally, the Orzel Court concluded that the statutory-basis exception did not apply

because Orzel did not “ ‘clearly’ fall within the class of persons that the allegedly violated

statutes were devised to protect”6 because there was “no evidence to suggest that the Legislature

intended to confer special protection on persons like [the plaintiff], who repeatedly and

fraudulently engage in the illicit use of drugs.” Id. at 574.

Orzel governs the resolution of the case at bar. It is undisputed that Errett died from an

overdose of cocaine and heroin, and that the possession and use of these controlled substances is

illegal under both Texas and Michigan law.7 The illegal possession and use of controlled

6

The plaintiffs alleged that the defendant violated MCL 333.17759 and MCL 333.16221(c)(iv),

provisions of the Public Health Code that address pharmacists’ duties regarding controlled

substances. Orzel, 449 Mich at 573.

7

Texas law prohibits and provides criminal penalties for the knowing or intentional possession

of cocaine or heroin unless the person “obtained the substance directly from or under a valid

prescription or order of a practitioner acting in the course of professional practice. TEX. HEALTH

& SAFETY, § 481.102(2) and (3)(D), and § 481.115. Texas law also criminalizes the knowing or

intentional use or possession with intent to use drug paraphernalia to inject controlled substances

in to the human body. TEX. HEALTH & SAFETY, § 481.125(a).

Under Michigan law, a person who knowingly or intentionally possesses a schedule 1 or

2 controlled substance “that is a narcotic drug or a drug described in [MCL 333.] 7214(a)(iv)” in

an amount less than 25 grams is “guilty of a felony punishable by imprisonment for not more

than 4 years or a fine of not more than $25,000.00, or both.” MCL 333.7403(1), (2)(a)(v). MCL

333.7404(1) provides that “[a] person shall not use a controlled substance or controlled substance

analogue unless the substance was obtained directly from, or pursuant to, a valid prescription or

order of a practitioner while acting in the course of the practitioner’s professional practice, or

except as otherwise authorized by this article.” A person who violates MCL 333.7404(1) with

respect to a schedule 1 narcotic drug or a schedule 2 drug described in section 7214(a)(iv) “is

guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not

more than $2,000.00, or both.” MCL 333.7404(2)(a). Heroin is a schedule 1 controlled

substance that is a narcotic drug. MCL 333.7212(1)(b); MCL 333.7107(a). Cocaine is a

schedule 2 controlled substance described in MCL 333.7214(a)(iv).

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substances, as occurred in the instant case, is the type of serious illegal conduct that warrants

application of the wrongful-conduct rule. Id. at 562-564. Further, it is common knowledge that

death is a foreseeable, natural, and probable result of taking an overdose of dangerous drugs such

as cocaine and heroin. Consequently, Errett’s illegal drug use was at least “a” proximate cause

of his death. See id. at 566-567 (showing that a party’s conduct is “a” proximate cause is

sufficient); see also Kaiser v Allen, 480 Mich 31, 37-38; 746 NW2d 92 (2008) (defining

proximate cause as “a foreseeable, natural, and probable cause of the plaintiff’s injuries and

damages”). Because Whaley’s claim is based on Errett’s relapse and resulting death from a drug

overdose, there is a sufficient causal nexus between his illegal conduct and his death. Orzel, 449

Mich at 564. Thus, the requirements for applying the wrongful-conduct rule have been satisfied.

Id. at 561, 564.

C. ABROGATION

Whaley first contends that the common-law wrongful-conduct rule does not bar her claim

because it was has been abrogated by the enactment of statutes establishing a system of

comparative fault, specifically MCL 600.2957, MCL 600.2958, and MCL 600.6304(8). We

disagree. Whether the Legislature has abrogated a common-law rule is a question of law that we

review de novo. Velez v Tuma, 492 Mich 1, 5, 11; 821 NW2d 432 (2012). We also review

statutory interpretation de novo. Id. at 11.

In 1995, the Legislature codified a system of comparative negligence through the

enactment of MCL 600.2957, MCL 600.2958, and MCL 600.2959, and the amendment of MCL

600.6304.8 1995 PA 161; 1995 PA 249. This statutory system of comparative negligence

requires triers of fact in actions “seeking damages for personal injury, property damage, or

wrongful death” to allocate the liability of each person who contributed to the injury, including

the plaintiff, “in direct proportion to the person’s percentage of fault.” MCL 600.2957(1).

Accordingly, a plaintiff’s contributory fault does not bar his or her recovery; it only reduces his

or her economic damages, MCL 600.2958, and, in some instances, bars the recovery of

noneconomic damages, MCL 600.2959.9 MCL 600.6304(8) defined “fault” to include “an act,

omission, conduct, including intentional conduct, a breach of warranty, or a breach of a legal

duty, or any conduct that could give rise to the imposition of strict liability, that is a proximate

cause of damage sustained by a party.” Except as expressly provided for in sections 2957, 2958,

and 2959, enactment of these sections did not “eliminate or diminish a defense or immunity” that

existed at the time of the enactment. MCL 600.2957(3).

“The common law remains in force until ‘changed, amended or repealed.’ ” Velez, 492

Mich at 11, quoting Const 1963, art 3, § 7. “The abrogative effect of a statutory scheme is a

8

Our Supreme Court adopted the rule of comparative negligence in place of the doctrine of

contributory negligence in 1979. Placek v City of Sterling Heights, 405 Mich 638, 650; 275

NW2d 511 (1979).

9

Noneconomic damages are barred where the injured plaintiff’s fault exceeds that of the

aggregate fault of the other contributors to the plaintiff’s injury. MCL 600.2959.

-7-

question of legislative intent, and legislative amendment of the common law is not lightly

presumed.” Dawe v Dr Reuven Bar-Levav & Assoc, PC, 485 Mich 20, 28; 780 NW2d 272

(2010) (quotation marks and citation omitted). “The first step in ascertaining legislative intent is

to look at the words of the statute itself.” Wold Architects & Engineers v Strat, 474 Mich 223,

233; 713 NW2d 750 (2006). “The Legislature is presumed to know of the existence of the

common law when it acts,” id. at 234, and “the Legislature should speak in no uncertain terms

when it exercises its authority to modify the common law,” Dawe, 485 Mich at 28 (quotation

marks and citation omitted). We will not construe a statute “to abrogate established common-

law principles by implication.” See Lee v Detroit Med Ctr, 285 Mich App 51, 67; 775 NW2d

326 (2009).

In light of the applicable law, we conclude that the Legislature’s passage of comparative

negligence statutes in 1995 did not abrogate the wrongful-conduct rule. When the Legislature

enacted the statutes relevant to comparative negligence, it knew that the common-law wrongful-

conduct rule was “firmly embedded in [Michigan] jurisprudence. Orzel, 449 Mich at 576 n 29;

Wold, 474 Mich at 233. None of the relevant statutes expressly changes, amends, or repeals the

rule. See Velez, 492 Mich at 11. In fact, MCL 600.2957(3) ensures the rule’s survival by

stressing that codification of comparative negligence did not “eliminate or diminish” preexisting

defenses or immunities. Thus, nothing in the language of the statutes clearly indicates the

Legislature’s intent to modify or nullify the wrongful-conduct rule, Dawe, 485 Mich at 28, and

we decline to construe the statutes to abrogate the rule by implication, see Lee, 285 Mich App at

67.

Further evidence that enactment of the comparative negligence statutes in 1995 did not

abrogate the wrongful-conduct rule is that this Court has continued to identify and treat the

wrongful-conduct rule as a valid legal principle for the past 22 years. See, e.g., Shelton v Auto-

Owners Insurance Company, __ Mich App ___; ___ NW2d ___ (Docket No. 328473, issued

February 14, 2017), slip op at 8; Omian v Chrysler Group, LLC, 309 Mich App 297, 310-311;

869 NW2d 625 (2015); Ward v Titan, 287 Mich App 552, 556-557; 791 NW2d 488 (2010),

overruled on other grounds Admire v Auto-Owners Ins Co, 494 Mich 10 (2010); Cervantes, 272

Mich App at 416-417; Hashem v Les Stanford Oldsmobile, Inc, 266 Mich App 61, 88-91; 697

NW2d 558 (2005); MCA Fin Corp v Grant Thornton, LLP, 263 Mich App 152, 156-163; 687

NW2d 850 (2004); Poch v Anderson, 229 Mich App 40, 44-53; 580 NW2d 456 (1998); Stopera

v DiMarco, 218 Mich App 565, 569-571; 554 NW2d 379 (1996). Moreover, albeit in dicta, our

Supreme Court expressly recognized the wrongful-conduct rule’s continuing validity:

. . . [A] fleeing driver [in a police pursuit] would nevertheless be barred from

seeking to recover for injuries sustained while attempting to evade a lawful order

to stop his vehicle under Michigan’s wrongful conduct rule. This rule is rooted in

the public policy that courts should not lend their aid to plaintiffs whose cause of

action is premised on their own illegal conduct. Orzel v Scott Drug Co, 449 Mich

550; 537 NW2d 208 (1995). Culpable passengers have no greater claim to benefit

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from the wrongful conduct than does the driver.” [Robinson v City of Detroit, 462

Mich 439, 452 n 10; 613 NW2d 307 (2000).]10

Whaley further contends that, because the wrongful-conduct rule functions in the same

way as contributory negligence to bar the claim of a plaintiff is who at fault for his injury, it is

incompatible with a comparative fault system. We disagree. The wrongful-conduct rule and

contributory negligence are not equivalent concepts. Under a contributory negligence system, a

plaintiff’s claim may be barred based on any negligent conduct by the plaintiff, Hill v Hoig, 258

Mich App 538, 541; 672 NW2d 531 (2003), while the wrongful-conduct rule only applies to bar

a claim if the claim arose out of the serious illegal conduct of the injured party, Orzel, 449 Mich

at 561. Minor illegal conduct will not even trigger the wrongful-conduct rule, id., much less

negligent conduct that is not serious illegal conduct. Thus, it does not follow that abolishing

contributory negligence in favor of comparative negligence is necessarily equivalent to

abolishing the wrongful-conduct rule.

D. EXCEPTIONS TO THE WRONGFUL-CONDUCT RULE

Whaley next argues that, even if the Legislature did not abrogate the wrongful-conduct

rule, the rule does not apply to bar these claims because both the culpability and the statutory-

basis exceptions apply to the facts of this case. Again, we disagree.

As noted above, “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. at 569 (citations omitted). Other

than citing the general principle that the culpability exception exists, Whaley cites no authority to

support her argument that the culpability exception actually applies to facts analogous to the

instant case. Whaley merely argues that Simmons’s conduct in developing an inappropriate

romantic relationship with Errett and AFR’s failure to properly supervise her were worse than

Errett’s decision to use the illegal drugs, cocaine and heroin.11 As previously stated, the Orzel

Court explained, “[a]n exception to the wrongful-conduct rule may apply where both the plaintiff

and defendant have engaged in illegal conduct, but the parties do not stand in pari delicto.” Id.

(emphasis added). Whatever the nature of the relationship that developed between Simmons and

Errett, Whaley has not alleged that Simmons did anything illegal, while it is undisputed that

Errett’s illegal possession and use of drugs caused his death. Accordingly, the culpability

exception does not apply.

10

See also Michigan Non-Standard Jury Instr Civil §16.4, Thomson Reuters, August 2016

Update; Effect of Wrongful Conduct, 1 Mich Pl & Pr § 6.3 (2d ed) (August 2016 update);

Violation of Statute, 1 Michigan Torts § 1.8 (May 2016 Update).

11

There is no allegation that Simmons’ relationship with Errett soured, or that it played any role

in his conduct of abusing drugs other than depriving him of “proper” drug treatment aftercare.

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Likewise, we conclude that the statutory-basis exception does not apply. As previously

noted, under this exception, the plaintiff may still recover if “the statute that the plaintiff alleges

the defendant violated allows the plaintiff to recover for injuries suffered because of the

violation.” Id. at 570. As the Orzel Court explained,

Statutes that permit certain classes of persons to recover do so either explicitly or

implicitly. Where a statute explicitly authorizes persons similarly situated as the

plaintiff to recover, then a problem does not arise, and the courts will simply

permit the plaintiff to pursue his cause of action. Where the statute is silent

regarding recovery, courts are left to infer whether the Legislature clearly

intended persons similarly situated as the plaintiff to be entitled to seek recovery.

To determine whether a statute implies recovery for certain types of

plaintiffs, courts often apply a test from the Second Restatement of Torts. The

test has been referred to as the “statutory purpose doctrine.”

The court may adopt as the standard of conduct of a

reasonable man the requirements of a legislative enactment or an

administrative regulation whose purpose is found to be exclusively

or in part

(a) to protect a class of persons which includes the one

whose interest is invaded, and

(b) to protect the particular interest which is invaded, and

(c) to protect that interest against the kind of harm which

has resulted, and

(d) to protect that interest against the particular hazard from

which the harm results. [Id. at 570-571 (citations omitted).]

Whaley asserts that this exception applies based on an alleged violation of “the

malpractice statutes (Ex. MCL 600.2912, MCL 600.5838a).” MCL 600.2912(1) provides that a

person may bring a civil cause of action for medical malpractice against a person who is or holds

“himself out to be a member of a stated licensed profession.” MCL 600.2912 “is concerned with

[the] legislative decision that the impostor and the duly licensed professional be held to the same

standard of care.” Sam v Balardo, 411 Mich 405, 422; 308 NW2d 142 (1981). In other words,

“Section 2912 addresses itself exclusively to the problem of the empiric. [The] pseudo-

professional is subject to suit in malpractice and is to be held to the same standard of care as the

licensed professional he misrepresents himself to be.” Id. (quotation marks and citation

omitted). MCL 600.5838a discusses when medical malpractice claims accrue and should be

brought.

It is not clear from Whaley’s argument how the medical malpractice statutes that she cites

create an exception to application of the wrongful-conduct rule. Indeed, Whaley cites no

authority to support the argument that these statutes provide a cause of action despite Errett’s

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illegal conduct. Here, there is no specific conduct allegedly committed by defendants that is

prohibited by the statutes that Whaley cites. The statutes cited by Whaley are not penal statutes

because they do not define any specific punishments or transgressions, and Whaley has not cited

any penal statutes that were violated by defendants. Moreover, the wrongful-conduct rule has

been applied to bar medical malpractice claims predicated on injuries arising from the plaintiff’s

illegal conduct. See, e.g., Glazier v Lee, 171 Mich App 216, 217, 218, 220; 429 NW2d 857

(1988) (barring plaintiff’s malpractice claim against his psychologist alleging that his

psychologist provided professionally negligent treatment that caused the plaintiff to kill his

girlfriend and resulted in emotional and psychological injuries to the plaintiff). Accordingly, the

statutory-basis exception does not apply.

Finally, Whaley argues that the public policy reasons for applying the wrongful-conduct

rule are not present in this case. In Orzel, the Court explained:

The rationale that Michigan courts have used to support the wrongful-

conduct rule are rooted in the public policy that courts should not lend their aid to

a plaintiff who founded his cause of action on his own illegal conduct. If courts

chose to regularly give their aid under such circumstances, several unacceptable

consequences would result. First, by making relief potentially available for

wrongdoers, courts in effect would condone and encourage illegal conduct.

Second, some wrongdoers would be able to receive a profit or compensation as a

result of their illegal acts. Third, and related to the two previously mentioned

results, the public would view the legal system as a mockery of justice. Fourth,

and finally, wrongdoers would be able to shift much of the responsibility for their

illegal acts to other parties. As stated by the Court of Appeals, where the plaintiff

has engaged in illegal conduct, it should be the plaintiff’s own criminal

responsibility which is determinative. [Orzel, 449 Mich at 559-560 (quotation

marks and citation omitted).]

Whaley’s argument is without merit. There is nothing in Orzel to suggest that these

rationales are factors that must be specifically found to exist before the wrongful-conduct rule

may be applied in a particular case. See MCA Fin Corp, 263 Mich App at 159 (“We begin by

noting that the Orzel Court was explaining the rationale behind the wrongful-conduct rule and

was not establishing a requirement that at least one of the four listed public policy concerns must

be present in order to apply the rule.”). Moreover, these public policy reasons support

application of the wrongful-conduct rule in the instant case. The decedent chose to use cocaine

and heroin, which ultimately resulted in his death.12 Other than allegedly failing to provide

12

Although we appreciate the fact that drug overdoses are the leading cause of accidental death

in the United States, with 52,404 lethal drug overdoses in 2015 and opioid addiction driving this

epidemic, carving out an exception from the wrongful-conduct rule for drug-addicted individuals

is not going to solve the problem. See American Society of Addiction Medicine, Opioid

Addiction, http://www.asam.org/docs/default-source/advocacy/opioid-addiction-disease-facts-

figures.pdf (accessed May 8, 2017). We also note that if a drug-addicted person’s injury arises

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competent addiction treatment aftercare, as alleged by plaintiff, defendants played no role in

Errett’s decision to engage in illegal activity, something they were trying to help him prevent. It

would be a “mockery of justice” to shift the blame of a person relapsing and engaging in illegal

drug use to those treating the drug-addiction, and would condone illegal drug use. See Orzel,

449 Mich at 559-560. Whaley argues that Errett will not be benefitting from his actions because

he is deceased. However, “[b]ecause an action for wrongful death is derivative in that the

representative of the deceased stands in the latter’s shoes, plaintiff, as the personal representative

of the decedent’s estate, has no better claim than the decedent would have had himself.” Hashem

v Les Stanford Oldsmobile, Inc, 266 Mich App 61, 88 n 10; 697 NW2d 558 (2005).

III. CONCLUSION

Based on the foregoing, we conclude that the trial court properly applied the wrongful-

conduct rule to bar this claim. Defendants moved for summary disposition under MCR

2.116(C)(10), and both parties submitted additional evidence. In reaching our conclusion, we

have considered the pleadings, admissions, and other evidence submitted by the parties in the

light most favorable to the nonmoving party. Accordingly, we conclude that summary

disposition was proper under MCR 2.116(C)(10), rather than MCR 2.116(C)(8), because there is

no genuine issue regarding any material fact and defendants are entitled to judgment as a matter

of law. West, 469 Mich at 183. Detroit News, Inc v Policemen & Firemen Retirement Sys of

City of Detroit, 252 Mich App 59, 66; 651 NW2d 127 (2002) (“If summary disposition is granted

under one subpart of the court rule when it was actually appropriate under another, the defect is

not fatal and does not preclude appellate review as long as the record permits review under the

correct subpart.”) (quotation marks and citation omitted).

Having concluded that summary disposition was proper pursuant to the common-law

wrongful-conduct rule, we decline to address defendants’ alternative argument concerning MCL

600.2955b.

Affirmed.

/s/ Jane M. Beckering

/s/ Jane E. Markey

/s/ Douglas B. Shapiro

out of negligent medical care, rather than the person’s own relapse, there may not be a sufficient

causal nexus to apply the wrongful-conduct rule; this case, however does not entail such a

situation.

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