Dugger v. Arredondo

408 S.W.3d 825 (2013)

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Nature of the Case

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Facts

D went to his friend Joel Martinez's house. Martinez put in his pocket 'cheese'-a mixture of black-tar heroin and Tylenol PM. After purchasing tequila and a cigar, which they later filled with marijuana to make a 'blunt,' the two men returned to the house where D lived with his parents. They consumed several tequila drinks, snorted lines of cheese, and smoked marijuana. D noticed that Martinez was making a choking sound and subsequently began vomiting. D yelled for his parents, and they came down the hall to his bedroom. Instead of calling 911, D called Martinez's mother, P, and told her that Martinez had been drinking and was throwing up. P told D to let Martinez sleep it off. After another fifteen minutes, D's father called 911. The police and eventually, paramedics arrived. D did not tell the police or paramedics that Martinez had ingested heroin, only that he drank tequila and smoked marijuana. They treated Martinez for alcohol poisoning. Martinez died less than two hours after the call to 911. P sued D for wrongful death. D asserted an affirmative defense based on the common law unlawful acts doctrine, which bars a plaintiff from recovery if, at the time of injury, he was engaged in an unlawful act that was 'inextricably intertwined with the claim and the alleged damages would not have occurred but for the illegal act.' P argued that D owed Martinez a duty because he created a dangerous situation by allowing drugs to be consumed at his house and therefore, had a duty to prevent injury to others. The trial court rendered summary judgment for D. The court of appeals reversed; the Legislature's adoption of the proportionate responsibility scheme evidenced its clear intention that a plaintiff's illegal conduct not falling within a statutorily-recognized affirmative defense be apportioned rather than barring recovery completely. D appealed. D argues that an affirmative defense based on the unlawful acts doctrine is available in personal injury and wrongful death cases even when the elements of section 93.001's statutory affirmative defense are not satisfied.