The opinion
Docket No. 104049.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
JANE DOE, Appellant, v. ELIZABETH DILLING, Indiv. and as Ex’r
of the Estate of Kirkpatrick Dilling, et al., Appellees.
Opinion filed April 3, 2008.
JUSTICE FREEMAN delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Fitzgerald, Garman, and
Karmeier concurred in the judgment and opinion.
Justice Kilbride specially concurred, with opinion.
Justice Burke took no part in the decision.
OPINION
Plaintiff, Jane Doe, filed a complaint in the circuit court of Cook
County against defendants Elizabeth and Kirkpatrick Dilling, for,
inter alia, fraudulent and negligent misrepresentation. A jury found
for Doe on the fraudulent misrepresentation claim and awarded her
$2 million in compensatory damages. The appellate court vacated the
judgment entered on the jury’s verdict finding defendants liable for
fraudulent misrepresentation and awarding Doe compensatory
damages. The appellate court affirmed the remainder of the judgment
of the circuit court. 371 Ill. App. 3d 151. We granted leave to appeal.
210 Ill. 2d R. 315. For the reasons that follow, we affirm the
judgment of the appellate court, although for reasons different than
those expressed by that court.
BACKGROUND
On May 4, 2000, Doe filed a nine-count complaint in the circuit
court of Cook County against the estate of her late fiancé, Albert
Dilling (Albert), as well as Albert’s parents, Elizabeth (Betty) and
Kirkpatrick (Kirk),1 after Albert had died from acquired immune
deficiency syndrome (AIDS). In the course of pretrial proceedings,
Doe amended her complaint several times, including dropping
Albert’s estate as a defendant,2 and eliminating several of the original
counts. By early 2004, Doe filed a fifth amended complaint, which
contained two counts directed at Betty and Kirk3 (collectively, the
Dillings), which are at issue in this appeal. Doe alleged that the
Dillings had intentionally and falsely stated to her that Albert was not
infected with the human immunodeficiency virus (HIV) and/or
suffering from AIDS when they knew that, in fact, he was HIV-
positive and had AIDS. Doe also alleged a claim of negligent
misrepresentation against the Dillings on these same facts. In both
instances, Doe alleged that the actions of the Dillings caused her to
delay the discovery that she herself was infected with HIV, resulting
in physical harm to her as she was unable to obtain timely medical
treatment and she now has full-blown AIDS. Doe’s case was tried
before a jury in spring 2004.4
1
Doe also named Kirk’s law firm, Dilling & Dilling, as a defendant on
the basis that the firm allegedly committed legal malpractice with respect
to matters unrelated to Doe contracting HIV. The legal malpractice claim
is not at issue in this appeal.
2
Pretrial discovery had revealed that Albert’s estate had no assets and a
negative net worth.
3
The fifth amended complaint reflected the substitution of Kirk’s estate
as a party defendant due to his intervening death.
4
Doe’s action was originally tried to a jury in April 2003. At that time,
the circuit court judge directed a verdict in favor of defendants on
plaintiff’s fraudulent misrepresentation claim. Thereafter, the jury was
unable to reach a verdict on the claim of negligent misrepresentation.
-2-
The Trial
Doe’s Case in Chief
Doe testified that she met Albert in April 1996, when she was 44
years old and he was 41. Doe, a college-educated small-business
owner, had responded to a personal ad placed by Albert in a free
weekly local newspaper. Doe described Albert as looking “healthy”
when they first met, and the couple thereafter began to date on a
steady basis. Prior to her becoming more intimate with Albert, Doe
initiated a discussion with him about sexually transmitted diseases.
She informed Albert that she had practiced safe sex in the past, that
she had previously had an AIDS test5 and that she was disease-free.
Doe described herself as being “very aware of sexually-transmitted
diseases” and concerned that she did “not want to expose [herself] to
any.” Doe asked Albert if he had anything to tell her on this subject.
He answered her questions and she believed his answers.6
Doe first kissed Albert in July 1996, and, thereafter, they had
sexual intercourse using a condom in late July or early August. When
Doe saw Albert naked, she noticed unusual dark-colored
pigmentation on his genitalia, and she asked him about it. Albert told
her that he had previously suffered from genital warts and that he had
them surgically removed by cauterization. Albert explained to her that
because he had worked as a landscaper he handled plant and fungal
materials that contaminated not only his hands, but also areas of his
body that his hands touched. Doe believed Albert’s explanation. As
Doe and Albert became closer, she decided to pursue her relationship
with him with the intention of marrying him and having his child.
Accordingly, a mistrial was declared. No appeals were taken from the
directed verdict finding.
5
Doe testified that the AIDS test was performed in 1991 in conjunction
with her application for disability insurance.
6
Because Albert was deceased, Doe generally was not permitted to
testify at trial as to what Albert told her, as such statements are generally
inadmissible under the Dead Man’s Act (735 ILCS 5/8–201 (West 2002)).
-3-
With this in mind, the couple had unprotected sexual intercourse in
late August 1996.
In September 1996, Doe became ill with flu-like symptoms, a
very high fever, and a rash. Because the symptoms quickly resolved,
Doe believed it was simply the flu. She therefore did not seek medical
treatment and made no connection between these symptoms and her
unprotected sexual intercourse with Albert. Doe stated that around
this same time, Albert complained about having difficulty walking
straight. Albert experienced dizziness and was unstable and not sure-
footed.
In the fall of 1996, Albert traveled to Wyoming to purchase a
bar/restaurant. Doe and Albert became engaged around the end of
1996, and Doe visited him in Wyoming in early 1997. At that time
Doe found Albert looking “a little tired and worn out, thin.” She
asked him about his appearance and believed whatever he told her.
Doe acknowledged that during this visit with Albert, she observed
that he had “very dry skin, which was almost ashen looking.”
During Doe’s stay in Wyoming, Albert invited her to accompany
him to Reno, Nevada, where he had an appointment to consult with
a doctor about his health condition of heavy-metal poisoning. Doe did
not visit the doctor’s office with Albert, but Albert gave her a printout
of lab test results from a hair analysis that had been previously
performed on him, showing that he “had heavy-metals in his system.”
In May 1997, Doe met Albert’s parents, Kirk and Betty, for the
first time, when the Dillings returned to the Chicago area from their
winter residence. Kirk and Betty invited Doe and Albert to join them
for dinner at their home. According to Doe, the topic of Albert’s
health came up during this visit. Betty told Doe that Albert had
heavy-metal poisoning but that he would get well and that it was
Albert’s only health problem. Betty also told Doe that she and Kirk
were “in charge of [Albert’s] medical care,” and that Kirk, by virtue
of his long career as an attorney handling food and drug cases, “was
a medical expert in these matters.”In addition, Betty told Doe that she
and Kirk were “very concerned about their son’s health; that he would
-4-
be just fine; that everything would be just fine.”7 Doe believed that
the Dillings were concerned about the couple’s happiness together.
The subject of Albert’s health was “a constant topic of
conversation” between Doe and the Dillings throughout 1997 and
1998, both during discussions over the phone and in person. The
Dillings repeatedly told Doe that heavy-metal poisoning was Albert’s
only health ailment, that he was receiving care from the right doctors
and that eventually he would get well.
Approximately a week after Doe met the Dillings, Albert had to
be taken to the emergency room because he suffered adverse reactions
after he had injected himself with ozone.8 Doe believed Albert had
experienced a stroke. On October 27, 1998, Albert was again taken
to the emergency room, this time by ambulance. As with his earlier
visit to the emergency room, he had again suffered an adverse
reaction from an ozone injection. Doe again believed that Albert had
suffered a stroke because he was temporarily unable to speak.
At the end of December 1998, Doe and Albert traveled to her
mother’s home in Michigan. During this visit Albert suffered
abdominal distress that was so severe “he was screaming in pain.”
Doe and her mother took Albert to the local emergency room.
Although Albert was treated and released, he was in such severe pain
that he was unable to complete the trip home to Chicago in one day,
and the couple was forced to stop overnight on the way back.
After Doe and Albert returned to Chicago from Michigan, Doe
told Betty about what had happened on the trip, including the fact that
Albert had showed Doe a toilet bowl full of blood. At that time Doe
was “getting more and more concerned” about Albert’s health, and
she asked Betty about the heavy-metal poisoning and why Albert was
not improving. Betty then asked Doe what Albert had eaten during
the Michigan trip, and Doe responded that she had purchased some
7
As was the case with Albert’s statements to Doe, because at the time of
trial Kirk was deceased, Doe, in most instances, was not allowed to testify
with respect to what Kirk told her. However, Kirk’s evidence deposition
was read to the jury at the second trial.
8
No explanation was offered at trial as to why Albert had injected
himself with ozone and if it was a prescribed medical treatment.
-5-
fresh cheese. Betty thought the cheese might have been spoiled, and
Doe agreed that “maybe it was, and that it could be food poisoning.”
Doe, however, further confided in Betty that she was anxious
about the deteriorating state of Albert’s health. Doe told Betty that
“Albert could be more seriously ill than what you think he has with
this heavy-metal poisoning. He appears to be ... if I didn’t know
better, I would say he almost looked like a man who has AIDS. Could
he have AIDS? Is there some ... Could he be really sick? Is there
something more wrong with him?” Betty answered Doe in the
negative. Doe stated that this conversation occurred within the earshot
of Kirk, who participated in it. Doe believed the Dillings’ statements.
During 1999 Doe and Betty spoke on the phone at least every
other day, and Betty continued to tell Doe that Albert was suffering
from heavy-metal poisoning. During these conversations, Kirk would
also often be on the speakerphone. Doe believed everything the
Dillings told her. Doe cared for the Dillings and felt like she was part
of the family. Doe believed that the Dillings also cared for her like a
daughter-in-law, even though she and Albert were not yet married.
After Doe and Albert returned from their Michigan trip, and also
around Father’s Day 1999, Doe suggested to the Dillings that Albert
should be evaluated by other physicians. Doe was “getting very
discouraged that [Albert] wasn’t getting any better” and was “frantic”
about his condition. Doe specifically suggested to the Dillings that
Albert should go to the Mayo Clinic for an evaluation. Doe had seen
the Mayo Clinic on the news and believed that “since [Albert’s]
problem was so unique *** [the Mayo Clinic] might be a good place
to address it.” Betty did not agree with Doe’s suggestion. However,
Doe admitted that the Dillings did not prevent Albert from going to
the Mayo Clinic and that the only question was who would pay for
the trip and treatment. Albert had no insurance and such a trip and
examination would have been extremely expensive.
Albert’s health continued to decline throughout 1999. Doe and
Albert lived in her apartment for almost a year until his death. During
that time, Doe did “everything” for Albert. When Albert could no
longer feed, dress or care for himself, Doe assisted him. Doe also
financially supported Albert. Albert eventually lost his ability to drive
and did not venture outside except for when Doe took him to visit the
Dillings on the weekends.
-6-
In the summer of 1999, Albert went to see Dr. Hauser, who had
been one of Kirk’s clients. Doe accompanied Albert on every visit to
Dr. Hauser and discussed Albert’s condition with him. Dr. Hauser
performed tests on Albert and, in June 1999, Dr. Hauser gave Doe a
laboratory report, which showed that Albert was suffering from Lyme
disease. Doe immediately called Betty and told her, “We finally have
a diagnosis. Now we know what’s really wrong with Albert.” Doe
“believed *** the doctor when he said Albert had Lyme disease.”
Toward the end of summer 1999, Doe began to notice changes in
her own physical condition. She had not paid much attention to her
own health prior to this period because she was focused exclusively
on Albert and his health concerns. Doe began to get very fatigued.
Her hair began to fall out, her gums bled profusely and she had a
yeast infection. In addition, her skin started splitting at various points
on her body and she developed sores all over. She attributed these
changes to the fact that she was a “full-time caretaker and running
Albert to the doctor two or three times a week and taking care of [her]
business and running around intensively–trying to keep it all
together.” Between 1994 and 1999 Doe never saw a doctor for any
type of medical treatment.
Even though Dr. Hauser diagnosed Albert with Lyme disease and
had given him antibiotics, Doe saw no improvement in his condition.
Around October 1999, Doe questioned Dr. Hauser about Albert’s lack
of response and improvement, and he suggested that Albert see a
neurologist. Prior to that next appointment, Betty told Doe for the
first time that Albert had a blood transfusion in 1979. Doe asked
Betty why she was just telling her this now and not earlier. Betty told
Doe that she did not know why she never told her. Doe admitted,
however, that she had knowledge prior to this statement by Betty that
Albert previously had a blood transfusion, but that Doe “doubted that
information at that time.”
On November 2, 1999, Doe took Albert to see Dr. Waitley, who
tested Albert for HIV. Doe admitted that she told Dr. Waitley that she
and Albert “had been married for 15 months,” even though that was
not true and they only remained engaged. Doe was with Albert when
Dr. Waitley informed them that Albert was HIV-positive. About one
week later, Doe was also tested and discovered that she, too, was
HIV-positive. Dr. Waitley told Doe that she could be his patient or
-7-
she could get treatment elsewhere, and that she had some time to start
treatment. Three weeks later, on November 29, 1999, Albert died of
AIDS.
In March 2000, Doe sought treatment for the first time for her
own HIV infection. Doe did not commence treatment earlier because
she was in “deep despair and anguish and in grief” over what had
happened and how the Dillings had treated her. At that point, she saw
Dr. Finlayson, a physician who took a more holistic approach to
medicine. Doe testified that Dr. Finlayson did not prescribe any
medications, such as antiretroviral drugs; instead, he told Doe to take
vitamin supplements. Doe saw Dr. Finlayson three more times
between March 1, 2000, and February 2001.
In March 2001, Doe started seeing Dr. Michelle Till, who is her
current treating physician. Dr. Till is the medical director of the
Women’s HIV Program at Northwestern Memorial Hospital. In May
2001, Dr. Till started Doe on highly active antiretroviral therapy
(HAART). Doe stated that her condition improved once she began the
HAART treatment.
As part of her case in chief, Doe presented the videotaped
deposition of Kirk Dilling, who had passed away prior to the case
going to trial. Kirk had been an attorney for 54 years, and the primary
focus of his legal practice was food and drug litigation, a practice for
which he became internationally known. During his career, Kirk had
represented many doctors, including Dr. Fuller Royal in Nevada, Dr.
Helmut Keller, who practiced in Germany, and Dr. Ross Hauser, who
practiced in the Chicago area. Kirk had recommended that Albert see
all of these doctors for his health ailments at one time or another.
In 1997 Kirk knew of the existence of HIV and AIDS, and also
that it was passed from person to person through unprotected sexual
intercourse and compromised a person’s immune system. Kirk,
however, denied that Albert ever had AIDS. Kirk believed that Dr.
Waitley had “misdiagnosed” Albert as being HIV-positive and that he
“killed [Albert] with drugs that caused his death in less than three
weeks.”
In 1992, Kirk had recommended that Albert see Dr. Keller in
Germany about his genital warts. Dr. Keller, to Kirk’s knowledge,
specialized in treating patients with cancer and did not treat patients
-8-
with HIV. Further, Kirk understood that Dr. Keller’s practice
included treating his patients with a modality called “Carnivora.”
Kirk believed that Carnivora was used to treat cancer. Kirk denied
that he knew by 1997 that it was used to treat the immune system.
Notwithstanding this, Kirk previously stated in a discovery deposition
that Carnivora was a remedy thought to benefit the immune system
and not to fight cancer. Kirk responded that Carnivora “affects the
immune system,” but not that it was a “remedy” for it.9
When questioned as to why he failed to specifically list Dr. Keller
in his answers to interrogatories which asked to identify all physicians
who treated Albert from 1992 until the time of Albert’s death, Kirk
stated that he listed the name of Dr. Keller’s clinic and that he had
also noted that Albert was treated for genital warts there.
Over the years, Kirk would recommend a specific treatment for
Albert if he “knew anything about it.” One treatment that Kirk felt
“qualified” to recommend to Albert was chelation therapy.10 Kirk and
Betty had paid thousands of dollars for Albert’s medical treatment.
Kirk acknowledged that Doe had suggested that Albert be evaluated
at the Mayo Clinic, but that he and Betty “didn’t agree to pay for it.”
Kirk admitted telling Doe that Albert was suffering from heavy-
metal poisoning and Lyme disease. When asked if he told Doe that
Albert was infected with HIV, Kirk stated, “No, because he wasn’t.”
Kirk denied ever telling Doe that Albert had AIDS, “because he
didn’t [have it].”
The Dillings’ former son-in-law, James Walgreen, also testified
on Doe’s behalf at trial by evidence deposition which was read to the
jury. Walgreen was married to the Dillings’ daughter, Victoria, for 20
years. He knew Albert, who was Victoria’s twin brother. At the time
9
No expert evidence was introduced at trial with respect to the purpose
of Carnivora and whether it was a treatment for the immune system.
10
“Chelation” is “[a] reaction between an organic compound *** and a
metal in which a ring type chemical structure is formed,” and “can be used
to remove a substance from participation in biological reactions,” e.g., “the
chelation of the calcium iron of blood prevents blood from clotting.” 2 J.
Schmidt, Attorneys’ Dictionary of Medicine and Word Finder C-191
(1997).
-9-
of his deposition, Walgreen had been recently divorced from Victoria.
During their marriage, Walgreen and Victoria were concerned about
Albert’s health and they were told that Albert suffered from Lyme
disease and lead poisoning.
Walgreen testified to an incident that occurred while he was still
married to Victoria that he said took place “approximately a year
before [Albert] passed away,” meaning in November of 1998.
Walgreen and Victoria were visiting the Dillings’ home, and Betty
told them that Albert had AIDS. This conversation occurred in the
sunroom of the Dillings’ home. Walgreen noted that “someone
should inform [Doe].” He was then told by Kirk and Betty that they
had not yet met Doe, and that he “should keep quiet” because it was
“none of [his] business.”
Counsel for the Dillings extensively questioned Walgreen with
respect to his bias against them as a result of his divorce proceedings
with their daughter Victoria. Walgreen maintained that his testimony
had nothing to do with his divorce. He denied being biased against
the Dillings, and he stated that he liked Kirk. Walgreen also admitted
that he never passed along the information of Albert’s AIDS to Doe,
even though he had several opportunities to do so.
Betty Dilling also testified at trial as part of Doe’s case in chief as
an adverse witness under section 2–1102 of the Code of Civil
Procedure (735 ILCS 2–1102 (West 2002)). Betty stated that on
occasion Kirk held himself out as an expert in the field of health with
respect to certain areas. Betty acknowledged that Kirk did this when
they discussed Albert’s health with Doe. She, Kirk and Doe had
countless conversations about Albert’s health, both over the phone
and in person. Betty acknowledged that she and Kirk were very
involved in Albert’s health care and medical treatment, and that
sometimes Kirk would confer with Albert’s doctors and then share
with her what he had learned. Occasionally, Kirk would review the
records and reports of the doctors who cared for Albert, although
Betty stated that she “didn’t understand” that information. Betty also
knew that Kirk had arranged for Albert to see Dr. Keller in Germany
in 1992 and that Dr. Keller was Kirk’s client.
Plaintiff also introduced the evidence deposition of Dr. Joel
Cornfield as part of her case in chief, and it was read to the jury at
trial. Dr. Cornfield, a urologic surgeon, treated Albert for genital
-10-
warts from April 1992 to July 1992. Albert came to see him because
his father, Kirk, had been a friend of Dr. Barry, and Dr. Cornfield had
taken over Dr. Barry’s practice. However, Dr. Cornfield did not
personally know Kirk. Albert suffered from a severe case of genital
warts, which Dr. Cornfield described as a sexually transmitted
disease. Because Albert had a very significant number of these warts,
Dr. Cornfield believed the best treatment was to surgically cauterize
them. However, Albert never showed up for the scheduled surgical
procedure. Dr. Cornfield thereafter spoke to Albert over the phone
and it was at that time that Albert informed him that he was HIV-
positive.
Dr. Michelle Till, Doe’s treating physician, also testified as part
of Doe’s case in chief via evidence deposition, but was cross-
examined by defense counsel live. When Doe first came to her for
treatment in March 2001, Doe was asymptomatic. In May 2001 Doe
began HAART therapy and her blood tests began to show
improvement. Doe’s subsequent response to treatment has been
“fair.”
In Dr. Till’s medical opinion, the delay from spring 1997 to
November 1999 of Doe learning of her HIV exposure caused
irreversible damage to her immune system. Dr. Till explained that an
individual’s “T cells” are types of white blood cells used by the body
to fight off infections and malignancies. HIV infects T cells and
begins to kill them, eventually causing the cell count to drop to a level
where the body cannot fight off infections. AIDS occurs when the T-
cell count is either below 200 or opportunistic infections develop.
In Dr. Till’s medical opinion, Doe became infected with HIV in
late summer 1996 when she had unprotected sexual intercourse with
Albert. Doe experienced flu-like symptoms in September 1996 that
were consistent with an acute HIV infection–an illness which
develops shortly after someone is infected with the virus. Doe is a
“rapid progressor,” meaning that she is one in whom the virus
reproduces rapidly. This, in turn, causes a patient to more quickly
progress from an HIV infection to full-blown AIDS. As a result, such
patients are in need of faster and earlier treatment to prevent this
progression. When Doe first came to Dr. Till for treatment in March
2001, Doe had a T-cell count of 129, which signified that she had
already progressed to AIDS. A “rapid progressor” such as Doe should
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have been under HAART therapy before her T cells declined under
200.
According to Dr. Till, the “vast majority” of individuals who are
exposed to HIV seroconvert within six months of the exposure, with
some taking “a couple of weeks,” and others “a few months.”
“Seroconversion” means “the point at which the person who is
infected develops antibodies against the HIV virus, and that can be
detected by a [positive HIV] blood test.” Dr. Till surmised that Doe
“most likely” would have seroconverted by spring 1997. Data
suggests that treating someone “within six months of seroconversion
may help preserve the specific immune response to HIV that is lost
thereafter.”
Dr. Till believed that Doe’s delay in discovering her HIV
infection between spring 1997 and November 1999 damaged her
immune system and led to more advanced HIV disease. Treatment in
spring 1997 would have been significant because it would have been
within six months of Doe’s seroconversion and, therefore, “[s]he
would not have continued to lose T cells and progress to AIDS.”
People who begin therapy at lower T-cell counts do not respond as
well to therapy as do those who are treated with a more moderate T-
cell count. Dr. Till believed Doe could “have been helped” if her
disease had been detected by spring 1997. Doe, however, suffered
little harm from the delay in starting treatment from the date she
tested positive for HIV on November 9, 1999, until the time that she
started HAART treatment in May 2001.
Dr. John McGillen also testified on plaintiff’s behalf in her case
in chief at trial via evidence deposition and in person. Dr. McGillen
was an expert originally hired by defendants and thereafter called to
testify by Doe as her expert. Dr. McGillen was in private practice and
was board certified in internal medicine and infectious diseases. Over
the years, he had treated several patients infected with HIV, but stated
that, on average, only 1% of his patients were HIV-positive.
In the course of examining Albert’s medical records, Dr.
McGillen observed the results of a blood test performed on Albert by
Dr. Keller in 1992. Based upon the test results, Albert was infected
with HIV as of December 1992. Further, based upon the medical
records, Dr. McGillen concluded that Albert did not have heavy-metal
poisoning or Lyme disease. In light of all of the information available
-12-
to him, Dr. McGillen opined that it was likely that Doe was infected
with HIV by Albert, and that the flu-like symptoms she experienced
in September 1996 constituted an episode of acute HIV infection.
Dr. McGillen noted that it is of benefit to treat someone who has
a newly acquired HIV infection very aggressively because only a very
small window of opportunity exists to do so. He explained that the
optimum period for treatment is “within two weeks of the onset of the
acute viral infection,” and that the treatment period could be closed
by two months after the infection.
When asked whether there would be benefit in starting therapy
nine months after the infection, as Doe alleged in her suit, Dr.
McGillen replied, “No, there is no benefit at all. Potentially it is
somewhat hazardous.” When asked whether the delay of 2½ years in
diagnosing Doe’s HIV condition affected the outcome for the
treatment of Doe’s condition, Dr. McGillen answered that such a
delay “had no effect at all on her prognosis or survival rates. None
whatsoever.” The reason for this was because “there is no clear
correlation *** that early treatment other than in that little couple-
month window improves the survival with the illness. *** And I just
don’t believe that there is any evidence at all that her prognosis would
be otherwise altered by a delay of a period of time like that.”
The Dillings’ Case
After Doe rested her case, the Dillings presented evidence and
witnesses on their own behalf. Betty testified that she did not know
that Albert had HIV until after his diagnosis by Dr. Waitley in
November 1999 when Doe called her and told her the news. Betty
was “devastated.” By summer 1999, Kirk had experienced two
strokes and Betty had acted as his nurse during that period. Betty had
offered to care for Albert in her home, but Doe refused the offer
because Doe wanted to care for Albert herself.
From 1996 through mid-1999, all Betty knew about Albert’s
health was that he had heavy-metal poisoning. Then, in mid-1999,
Betty was told that Albert had been diagnosed with Lyme disease.
Betty acknowledged telling Doe that Albert would get better. When
Doe suggested that Albert go to the Mayo Clinic, Betty said no
because Betty trusted the doctors that Albert was seeing. Further,
-13-
Albert had no health insurance and Betty thought it would be
“prohibitively expensive.”
Betty denied that after Albert and Doe returned from Michigan
Doe asked her if Albert had AIDS. Doe told Betty about Albert’s
illness and having to take him to the emergency room. Doe never
raised with her the topic of AIDS prior to Albert’s diagnosis in
November 1999.
Betty denied that the conversation that Walgreen had testified to
ever took place. Although Walgreen maintained that the conversation
occurred in the sun room, that room is unheated and would not have
been used in November, the time he said the discussion occurred. In
addition, Kirk was using a walker at that time and it would have been
“with great difficulty” that he would have been in that room because
he would have had to go down a step. At that time Kirk had been
“uneasy and afraid of thresholds and steps.”
Victoria Dilling’s evidence deposition was also read to the jury as
part of the Dillings’ case. Victoria denied that the conversation
testified to by Walgreen took place. Her parents never had
conversations in the sunroom of their home, as it was not a
comfortable room and they would only use it occasionally at the times
they wanted to go outside. Victoria stated that Kirk was afraid to go
down the stairs in his wheelchair, which was necessary to get to the
sunroom. In addition, the sunroom was not heated, so it was not used
in the winter. In the 20 years that she and Walgreen were married,
they never had any conversation with her parents about sex. Further,
the divorce proceedings between her and Walgreen were “extremely
difficult.” Victoria was unaware that her brother Albert had AIDS
prior to his diagnosis by Dr. Waitley in November 1999.
Dr. Finlayson also testified at trial on behalf of defendants. Doe
first came to see him for treatment on March 2, 2000. At that time she
was HIV-positive but asymptomatic. Dr. Finlayson, a family
practitioner, performed a series of diagnostic tests on Doe. He found
Doe to be a “rapid progressor” with respect to the disease, and he
opined that if Doe would have started treatment earlier after being
infected, it would have “been the most optimal at that point.”
At the close of all the evidence, the Dillings moved for a directed
verdict on both the fraudulent- and the negligent-misrepresentation
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counts. The circuit court entered a directed verdict for defendants on
the negligent-misrepresentation count. The circuit court also entered
a directed verdict for the Dillings on Doe’s claim for punitive
damages with respect to the fraudulent-misrepresentation count. The
circuit court thereafter allowed the fraudulent-misrepresentation count
to go to the jury, which subsequently returned a verdict in favor of
Doe and against the Dillings on the fraudulent-misrepresentation
count. The jury awarded Doe $2 million in compensatory damages.
The circuit court thereafter entered judgment on the verdict, and
denied the parties’ posttrial motions.
The Decision of the Appellate Court
The appellate court affirmed in part and vacated in part the
judgment of the circuit court. 371 Ill. App. 3d 151. The court vacated
that part of the circuit court judgment in favor of Doe which found
the Dillings liable for fraudulent misrepresentation. Although the
court found that the tort of fraudulent misrepresentation has
application outside of a commercial or a transactional
setting–particularly if physical harm is involved–the court determined
that Doe had failed to meet her burden of establishing that her
reliance upon the allegedly fraudulent statements made by the
Dillings was justified. The court then affirmed the remainder of the
judgment of the circuit court, holding that the circuit court properly
directed a verdict in favor of the Dillings on the negligent-
misrepresentation count, as Doe had failed to satisfy the elements of
that cause of action.
This court allowed plaintiff’s petition for leave to appeal. 210 Ill.
2d R. 315. We also allowed the AIDS Legal Council of Chicago to
file a brief as amicus curiae.
ANALYSIS
Doe maintains that she presented sufficient evidence at trial to
establish her claim of fraudulent misrepresentation against the
Dillings, and that the appellate court therefore improperly vacated the
jury verdict and judgment in her favor on that claim. The Dillings
respond, however, that our analysis must necessarily begin with the
threshold issue of whether the appellate court properly extended the
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cause of action for fraudulent misrepresentation beyond its traditional
application in commercial and transactional settings to the facts
presented in the matter at bar, where plaintiff seeks to hold the
Dillings liable for their alleged failure to disclose and their
misrepresentation of the HIV status of their adult child. Amicus AIDS
Legal Council of Chicago (Legal Council) agrees with the position
taken by the Dillings on this issue.
In order for a plaintiff to prevail on a claim of fraudulent
misrepresentation, he or she must establish the following elements:
(1) a false statement of material fact; (2) known or believed to be
false by the person making it; (3) an intent to induce the plaintiff to
act; (4) action by the plaintiff in justifiable reliance on the truth of the
statement; and (5) damage to the plaintiff resulting from such
reliance. Connick v. Suzuki Motors Co., 174 Ill. 2d 482, 496 (1996);
Board of Education of City of Chicago v. A, C & S, Inc., 131 Ill. 2d
428, 452 (1989); Charles Hester Enterprises, Inc. v. Illinois Founders
Insurance Co., 114 Ill. 2d 278, 288 (1986); Soules v. General Motors
Corp., 79 Ill. 2d 282, 286 (1980); see generally W. Keeton, Prosser
& Keeton on Torts §105, at 725 (5th ed. 1984). “In addition, the
reliance upon the misrepresentation must have been justified, i.e., the
other party had a right to rely upon the statement.” Charles Hester
Enterprises, Inc., 114 Ill. 2d at 288; Soules, 79 Ill. 2d at 286; Schmidt
v. Landfield, 20 Ill. 2d 89, 94 (1960).
The history and origin of the tort of fraudulent misrepresentation
lies in the common law action of deceit, a very narrow tort that
applied only to cases involving business or financial transactions
between parties. See W. Keeton, Prosser & Keeton on Torts §105, at
726 (5th ed. 1984). As the United States Supreme Court has
explained:
“[M]any familiar forms of *** conduct may be said to involve
an element of ‘misrepresentation,’ in the generic sense of that
word, but ‘so far as misrepresentation has been treated as
giving rise in and of itself to a distinct cause of action in tort,
it has been identified with the common law action of deceit,’
and has been confined ‘very largely to the invasion of
interests of a financial or commercial character, in the course
of business dealings.’ ” United States v. Neustadt, 366 U.S.
696, 711 n.26, 6 L. Ed. 2d 614, 624 n.26, 81 S. Ct. 1294,
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1302 n.26 (1961), quoting W. Prosser, Torts §85, at 702-03
(1941).
In light of the origin of this cause of action, it is not surprising
that the tort of fraudulent misrepresentation has been historically
treated as purely an economic tort under which one may only recover
damages for pecuniary harm. See W. Keeton, Prosser & Keeton on
Torts §105, at 726 (5th ed. 1984) (the application of the tort of
fraudulent misrepresentation has been limited to remedying harm of
a commercial or financial nature); Restatement (Second) of Torts,
Scope Note, at 54 (1977) (the tort of fraudulent misrepresentation has
traditionally been associated with liability for pecuniary loss);
Restatement (Second) of Torts §531, at 66 (1977) (setting forth the
“General Rule” for fraudulent-misrepresentation actions and defining
damages solely in terms of pecuniary loss). The historic limitations
on the application of this tort are “in part connected with the fact that
in the great majority of the cases which have come before the courts
the misrepresentations have been made in the course of a bargaining
transaction between the parties,” and, as a consequence, “the action
has been colored to a considerable extent by the ethics of bargaining
between distrustful adversaries *** in the course of business
dealings.” W. Keeton, Prosser & Keeton on Torts §105, at 726 (5th
ed. 1984).
Although fraudulent misrepresentation has been traditionally
considered “a stand-alone economic or commercial tort that causes
financial harm without causing physical harm either to person or to
property” (2 D. Dobbs, Torts §469, at 1344 (2001)) and, therefore,
has generally been confined to remedying losses of a commercial or
financial character, there have been limited occasions where this
cause of action has been held to lie for personal injuries. W. Keeton,
Prosser & Keeton on Torts §105, at 726 (5th ed. 1984). “In general,
however, other theories of action have been sufficient to deal with
non-pecuniary damage *** [where] the somewhat narrower theory of
deceit is not called into question.” W. Keeton, Prosser & Keeton on
Torts §105, at 726 (5th ed. 1984). In other words, if the tort of
fraudulent misrepresentation is not recognized for a certain fact
pattern, this does not necessarily mean that a plaintiff is left without
a remedy for his or her injuries, as other tort actions may be available.
See Neurosurgery & Spine Surgery, S.C. v. Goldman, 339 Ill. App.
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3d 177, 184-85 (2003) (providing examples of other possible tort
actions for misrepresentation); see also Restatement (Second) of
Torts, Scope Note, at 54 (1977) (same).
In the matter at bar, the Dillings contend that there is no sound
reason for departing from this historical trend wherein the application
of the tort of fraudulent misrepresentation has been generally limited
to commercial and business settings in which the aggrieved party
suffers a pecuniary loss. They underscore that, in a business setting,
the parties to the transaction have a recognized duty to disclose
information fully and accurately, and that such a duty is inherent not
only in the nature of commercial dealings, but also within the legal
relationships that exist between the parties in such a setting. The
Dillings maintain that it is this inherent duty to deal honestly within
business transactions that animates the tort of fraudulent
misrepresentation and which runs throughout all of the sections of the
Restatement that deal with this cause of action.
The Dillings further assert that, in contrast, no such inherent duty
to disclose exists within the purely private encounter that is at issue
in the instant cause. The Dillings therefore contend that extending the
tort of fraudulent misrepresentation from its traditional commercial
setting to the facts presented in the matter at bar would have the
potential for dire consequences, in that, unlike in the case of
commercial transactions where the parties’ duty to deal honestly is
circumscribed by the scope of the business dealings, in purely
personal settings such a duty would be without limits.
As stated, amicus Legal Council supports the position taken by
the Dillings on this issue and likewise argues that the tort of
fraudulent misrepresentation should not be expanded to apply to the
facts presented in this case. Amicus underscores that allowing civil
liability based upon a common law cause of action for allegedly
fraudulent misrepresentation of another person’s HIV status would be
at odds with the provisions of the Confidentiality Act, which
guarantee the confidentiality of a person’s HIV status. 410 ILCS
305/9 (West 2002). Thus, the Legal Council notes, under the
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Confidentiality Act, the Dillings had a statutory legal duty to maintain
confidentiality if they knew anything about Albert’s HIV status.11
In response, Doe points to the opinion of the appellate court
below, and notes, as did that court, that two prior Illinois decisions
have previously recognized the tort of fraudulent misrepresentation
in seemingly noncommercial settings. Based upon the appellate
court’s rulings in Roe v. Jewish Children’s Bureau of Chicago, 339
Ill. App. 3d 119 (2003), and Roe v. Catholic Charities of the Diocese
of Springfield, 225 Ill. App. 3d 519 (1992), Doe contends that this is
no longer an issue of first impression and that Illinois has already
expanded the tort of fraudulent misrepresentation outside of the
business arena.
A close examination of the two cases relied upon by Doe,
however, does not support her broad interpretation of those decisions.
In both Roe v. Jewish Children’s Bureau of Chicago, 339 Ill. App. 3d
119 (2003), and Roe v. Catholic Charities of the Diocese of
Springfield, 225 Ill. App. 3d 519 (1992), the issues presented were the
same: whether a cause of action for fraud should be recognized based
upon an adoption agency’s intentional misrepresentation of a child’s
health and psychological background. Jewish Children’s Bureau, 339
Ill. App. 3d at 132-33; Catholic Charities, 225 Ill. App. 3d at 524. In
both cases, the adoptive parents alleged that they told the adoption
agencies that they wished to adopt only “normal, healthy” children
(Catholic Charities, 225 Ill. App. 3d at 523), or only a child born of
parents who were “normal mentally, intellectually, and emotionally,
and who had no history of psychiatric problems” (Jewish Children’s
Bureau, 339 Ill. App. 3d at 123). In each instance, the adoption
agency made statements to the adoptive parents that the children met
their stated requirements, although the agencies knew that, in fact, the
children did not. The adoptive parents relied upon the agencies’
statements, adopted the children, and thereafter discovered that the
11
Amicus further observes that disclosure under these circumstances
would have subjected the Dillings to both criminal and civil penalties (410
ILCS 305/12, 13 (West 2002)), and it would have required them to confirm
that their son had engaged in conduct that would have subjected him to a
felony prosecution under the criminal transmission of HIV provisions of the
Criminal Code of 1961 (720 ILCS 5/12–16.2 (West 2002)).
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children either had a history of psychiatric and emotional problems
combined with destructive behavior (Catholic Charities, 225 Ill. App.
3d at 523) or that a biological parent had a long history of mental-
health impairment (Jewish Children’s Bureau, 339 Ill. App. 3d at
124).
In both cases, the appellate court held that the adoptive parents
could properly bring causes of action for fraudulent misrepresentation
against the adoption agencies based upon the agencies’ intentional
misrepresentation with respect to the children’s health and
psychological backgrounds (Catholic Charities, 225 Ill. App. 3d at
524) or those of the biological parent (Jewish Children’s Bureau, 339
Ill. App. 3d at 134-35). In arriving at this conclusion, the appellate
court noted that numerous other states had recognized a cause of
action for fraudulent misrepresentation in the adoption setting where
the agencies had made similar false statements in connection with the
adoptions. Catholic Charities, 225 Ill. App. 3d at 524-27. In
following those cases, the court noted that because the defendants
were agencies in the business of facilitating adoptions, they had sole
knowledge of the medical backgrounds of the adopted children and
therefore were the only entities with the ability to accurately and
completely communicate that knowledge to the adoptive parents. The
court underscored that a “central concern” in adoption cases is that
“fraud by adoption agencies should be discouraged because it
deprives the adoptive parents of the right to make an informed
decision regarding the potential risks involved in the adoption of a
child.” Jewish Children’s Bureau, 339 Ill. App. 3d at 134.
Accordingly, it was therefore proper for the agencies to be held liable
for failing to fulfill their duties of complete and honest disclosure.
We do not find these decisions to support Doe’s argument that
Illinois has recognized the tort of fraudulent misrepresentation in
purely personal settings. Also, we do not find these decisions to be
factually analogous to her case. We view these decisions as animated
by the unique facts presented by adoption proceedings, wherein there
is an inherent duty on the part of the agency to provide full and
complete disclosure of the adopted child’s background and
history–information that is held exclusively by the agency.
Furthermore, the state has a valid public policy interest in adoption
proceedings, which are highly regulated (see 750 ILCS 50/1 et seq.
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(West 2002)). Therefore, we find these cases factually distinguishable
from the matter at bar and inapposite to Doe’s argument.
In addition, Doe relies in her submission to this court–as did the
appellate court in its opinion below–upon decisions rendered in other
jurisdictions that have recognized a cause of action under the theory
of fraudulent misrepresentation for the transmission of sexually
transmitted diseases in support of her conclusion that the tort of
fraudulent misrepresentation may be properly extended to purely
personal interactions. See, e.g., Kathleen K. v. Robert B., 150 Cal.
App. 3d 992, 198 Cal. Rptr. 273 (1984); B.N. v. K.K., 312 Md. 135,
538 A.2d 1175 (1988); R.A.P. v. B.J.P., 428 N.W.2d 103 (Minn. App.
1988). We disagree with Doe that such cases are factually analogous
to the matter at bar.
Our examination of the cited cases from our sister states reveals
that the tort of fraudulent misrepresentation has on occasion been
extended to actions where the plaintiff has filed suit against the
person who transmitted a sexually communicable disease to the
plaintiff and not against third parties. As one court explained, “people
who know that they have genital herpes have a legal duty to take
reasonable care to prevent the disease from spreading, and that this
duty generally includes, at a minimum, the duty to inform potential
sex partners of the possibility of infection.” R.A.P., 428 N.W.2d at
109. There, the Minnesota Court of Appeals held that the fact that the
defendant had “knowledge that she had a contagious, incurable,
sexually transmissible disease was a material fact that she was
obligated to disclose to [the plaintiff] to protect him from injury. [The
plaintiff] therefore, has a potential claim against [the defendant] for
her alleged fraudulent failure to disclose her genital herpes before
beginning a sexual relationship with [the plaintiff].” R.A.P., 428
N.W.2d at 109.
Similarly, in B.N. v. K.K., the Maryland Supreme Court also held
that the plaintiff had a cause of action under the theory of fraudulent
misrepresentation for nondisclosure of the fact that the defendant had
genital herpes. The court held that the defendant “had a general tort
duty, at the least, to disclose his condition before engaging in
intercourse with her.” The court described this general duty as
follows:
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“One who knows he or she has a highly infectious disease
can readily foresee the danger that the disease may be
communicated to others with whom the infected person
comes into contact. As a consequence, the infected person has
a duty to take reasonable precautions–whether by warning
others or by avoiding contact with them–to avoid transmitting
the disease.” B.N., 312 Md. at 142, 538 A.2d at 1179.
See also Kathleen K., 150 Cal. App. 3d at 996-97, 198 Cal. Rptr. at
276 (where defendant assured plaintiff, prior to engaging in sexual
intercourse, that he was free of any contagious sexually transmitted
diseases, although he knew that he had genital herpes, the “tortious
nature” of defendant’s conduct, combined with “the interest of th[e]
state in the prevention and control of dangerous diseases,” brought
plaintiff’s injury within the type of injury that has “significant public
policy overtones” and plaintiff therefore made out a case for
fraudulent misrepresentation).
Again, we find that these cases are factually distinguishable from
the matter at bar. In each of the cited cases, the plaintiff sued the
person who actually communicated the disease to him or her, and not
a third person who may or may not have had information about the
defendant’s health. In the instant matter, Doe is not suing Albert, who
allegedly infected her with HIV; rather, she is suing his parents. We
find that these factual differences render the cited cases inapposite to
Doe’s argument. We further note that neither Doe in her argument to
this court, nor the appellate court in its opinion below, cites to a
single case in the country where a court has imposed liability under
the tort of fraudulent misrepresentation against the parents of a
competent adult tortfeasor for their failure to disclose information
about that tortfeasor to a third party.
Accordingly, we hold that the appellate court incorrectly
expanded the tort of fraudulent misrepresentation to the specific facts
presented in the matter before us. The factual circumstances of the
instant appeal are inappropriate for the recognition of this tort beyond
its general historical application to cases arising in the commercial
context. It was therefore error for the appellate court to hold that the
tort of fraudulent misrepresentation applied in plaintiff’s case.
Our holding that it is inappropriate to expand the tort of
fraudulent misrepresentation to the facts of plaintiff’s case is
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supported by plaintiff’s own inability to prove that she justifiably
relied upon the alleged statements made by the Dillings. As noted
previously, a critical element that must be established by a plaintiff
in a fraudulent-misrepresentation claim is that he or she acted in
justifiable reliance on the truth of the allegedly fraudulent statement.
See, e.g., Connick, 174 Ill. 2d at 496; Hester, 114 Ill. 2d at 288;
Soules, 79 Ill. 2d at 285. The manner in which plaintiff’s claim
unfolded before the jury provides a clear illustration of why the tort
of fraudulent misrepresentation should not have been expanded in this
case.
Doe was a college-educated woman who was in her mid-40s and
ran her own business at the time that she met Albert in April 1996.
Doe testified that she was “very aware” of sexually transmitted
diseases (STDs) and that HIV was such a disease. She stated that she
had practiced safe sex in the past and that she did not want to expose
herself to the risk of contracting a STD. After meeting Albert through
a personal ad and beginning a steady dating relationship, Doe initiated
a conversation with Albert about STDs, expressed her concerns about
remaining free of STDs, asked him if he had anything to tell her in
this regard, and believed what he told her. However, when she first
saw Albert naked, she noticed what she acknowledged was “unusual”
pigmentation on his genitalia. She asked him about it, and believed
his explanation, despite the fact that, as Dr. Cornfield testified, such
warts are generally known to be spread through sexual contact and
considered a form of STD. This fact should have placed Doe on
notice at that point in time that something could be amiss with respect
to Albert’s sexual health and that she ran a risk of potentially
contracting an STD by engaging in sexual conduct with him.
Despite the fact that Albert’s genitalia looked “unusual” to her,
Doe began having unprotected sex with Albert. Around that time,
Albert began complaining to her that he was dizzy and she noticed
that he could not walk or stand up straight. Around this same time,
Doe herself was experiencing severe flu-like symptoms, which the
medical testimony at trial concluded was consistent with an acute
HIV-infection. Within the next few months, Doe testified, she saw
that Albert’s health condition was changing, as he went from looking
“healthy” when she first met him to looking worn out, tired, and thin,
with “ashen looking” skin. Doe also testified that she traveled with
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Albert to Reno, where Albert had an appointment to see a doctor for
treatment of what she termed was Albert’s “heavy-metal poisoning.”
Doe also testified that Albert showed her a lab printout of a hair
analysis performed on him which, she stated, confirmed that he had
“heavy-metals in his system.”
We note that all of the above events occurred before Doe first met
the Dillings in May 1997, which was a little over one year after she
first met Albert. As stated, Doe’s suit against the Dillings asserts that
she justifiably relied upon their allegedly fraudulent statements
regarding the true state of Albert’s health and therefore delayed in
discovering and treating her HIV infection. However, for the time
period between April 1996 and May 1997, Doe could not, as a matter
of law, have been inhibited by any statements made by the Dillings
because she had not even met them. Indeed, during this time frame,
the uncontradicted evidence established only that Doe relied on
statements made to her by Albert–and not the Dillings–that his health
ailments were solely caused by heavy-metal poisoning. Accordingly,
any statements allegedly made by the Dillings thereafter were simply
repetitive of what Doe already believed from independent sources.
We note that, based upon the specific occurrences witnessed by Doe
as outlined above, Doe should have been fairly suspicious of the true
nature of Albert’s health problems and, as Albert’s sexual partner,
should have also been concerned for her own health. Doe, however,
chose not to heed any of the early warning signs that something was
amiss with Albert’s health and she declined to probe further.
In addition, Doe’s own expert and treating physician, Dr. Till,
provided uncontroverted testimony that because Doe was apparently
infected in August 1996 as a result of unprotected sexual intercourse
with Albert, she most likely would have seroconverted–or tested
positive for HIV–at some time within six months of the exposure. Dr.
Till surmised that Doe “most likely” would have seroconverted by
spring 1997, before meeting the Dillings. As such, Doe had the
independent means to discover that she herself had been infected with
HIV through having her own blood tested if she would have chosen
to consult with a health professional.
Approximately one week after she met the Dillings, Doe testified,
Albert had to be taken to the emergency room because he had injected
himself with ozone and had experienced what appeared to her to be
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a stroke. Yet, this unusual event did not cause any inquiry on Doe’s
part; she simply accepted it. Doe testified that the topic of Albert’s
health came up repeatedly when she spoke with the Dillings, and she
stated that she did not question anything that the Dillings allegedly
told her. Doe testified that this remained the case even though Albert
was rushed by ambulance to the emergency room on a second
occasion in October 1998 after having once again experienced a
stroke after injecting himself with ozone. Nevertheless, Doe did not
question why a formerly healthy man in his mid-40s had suffered two
strokes after injecting himself with a highly unusual substance, and
did not see any correlation between Albert’s declining condition and
the potential risks to her own health as his sexual partner. Doe chose
to believe the Dillings, even though she had seen with her own eyes
that Albert had a stroke and experienced these occurrences firsthand.
Doe further testified that she believed everything that the Dillings
told her, even after Doe and her mother rushed Albert to the local
emergency room during their trip to Michigan over Christmas 1998
because Albert was in such abdominal distress that he was
“screaming in pain,” and even after he had showed her a toilet full of
blood. We note that Doe never testified at trial with respect to any
diagnosis that was made of Albert’s condition at the Michigan
hospital. Although Doe stated that she questioned Betty in January
1999 about whether Albert had AIDS, she also testified that she chose
to believe the statements from the Dillings, rather than what she,
herself, had experienced with Albert during their Michigan trip and
what she had seen with her own eyes. Again, Doe chose to ignore her
own eyewitness knowledge of Albert’s rapid downward spiral and her
own potential risk for health problems stemming from her sexual
relations with him. Although Doe described her state at that time as
“frantic” with respect to Albert’s health, she nevertheless gave up on
the idea of having Albert evaluated at the Mayo clinic when the
Dillings declined to pay for the trip and treatment.
Doe also testified that Albert lived with her in her apartment for
most of 1999 until his death and that she “did everything for him.”
Yet, even though Albert was deteriorating before her eyes, and even
though Doe had knowledge about Albert’s condition that the Dillings
did not have because Doe lived with him on a daily basis, she still
chose to ignore what she saw and experienced. The fact that a man in
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his mid-40s had become totally dependent upon her for all of his daily
care did not cause her to question what the Dillings had allegedly told
her. Even when her own health started to similarly decline in the
summer of 1999, Doe chose not to investigate, even though her
symptoms would have caused a person of similar characteristics to
obtain medical advice. Yet, she ignored each and every fact that
pointed to the truth, which was that Albert had a very serious health
problem and she–having had unprotected sexual relations with
him–was at risk for contracting it.
We also note Doe’s testimony with respect to Dr. Hauser’s
diagnosis in summer 1999 that Albert was suffering from Lyme
disease. Doe stated that she immediately called Betty and told her,
“We finally have a diagnosis. Now we know what’s really wrong with
Albert.” Doe’s statement that they “finally” had a diagnosis and that
they now knew “what’s really wrong with Albert” indicates that Doe
had been harboring suspicions about the true nature of Albert’s
condition, and that she herself did not believe the Dillings’ alleged
statements that Albert was only suffering from heavy-metal poisoning
and that he would get well. If she had completely believed the
representations of the Dillings, there would have been no reason for
Doe to make the statement that Dr. Hauser’s diagnosis revealed the
true source of Albert’s deteriorating health.
Moreover, Doe testified at trial that she accompanied Albert on
every visit to Dr. Hauser and had discussions with him about Albert’s
condition. When Dr. Hauser gave Doe a laboratory report which
showed that Albert was suffering from Lyme disease, it was Doe who
“immediately” called Betty with the news of this latest diagnosis.
That Doe was the one who was informing Betty that Albert had Lyme
disease shows that Doe was in a unique position of knowledge with
respect to Albert’s health condition and undermines Doe’s argument
that she relied upon the statements of the Dillings with respect to
Albert’s health ailments. It was Doe–and not the Dillings–who
accompanied Albert to the doctor’s office and discussed Albert’s state
of health personally with his physician. In fact, Doe stated that she
“believed *** the doctor when he said Albert had Lyme disease.” By
her own testimony, Doe revealed that her reliance at that point with
respect to Albert having Lyme disease was on Dr. Hauser and not the
Dillings.
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Further, we note that Doe testified that prior to taking Albert to
see Dr. Waitley in November 1999, Betty told her for the first time
that Albert had undergone a blood transfusion in connection with
surgery on his shoulder in 1979. However, on cross-examination, Doe
admitted that she already knew–prior to Betty’s statement–that Albert
had undergone a blood transfusion, but that Doe “doubted that
information at that time.” Again, we believe that a person with Doe’s
background and education would immediately recognize the risks
posed by a blood transfusion that occurred in the late 1970s as a
potential source of HIV infection and have a fair suspicion that there
could be a connection between that event and the drastic decline in
Albert’s health. At the very least, such a person would be on notice
that a tangible risk was presented to her own health in having sexual
relations with him.
In addition, we note that the Dillings were not medical
practitioners and that a person of the education and characteristics of
Doe should have been aware of the fact that they were not the best
source of information with respect to Albert’s medical condition. As
stated, Doe actually had greater access to information than did the
Dillings with regard to the state of Albert’s health, in that not only did
she live with Albert and watch the state of his health rapidly decline
on a daily basis, she also accompanied him to his medical
appointments and discussed the state of Albert’s health with his
doctor as he became sicker and weaker. There is no evidence in the
record that the Dillings accompanied Albert to any doctor’s
appointments or were privy to the same information that Doe was.
Doe argues, however, that these facts do not matter because Kirk
“held himself out as a medical expert” and because Doe “considered
herself the Dillings’ daughter-in-law” and believed that she had been
embraced into the family. Doe also claims that she was lulled into a
false sense of security by the Dillings. A plaintiff possessing the same
characteristics as Doe would likely have taken steps on her own to
look into the health condition of her fiancé or, at the very least, to
protect her own health by consulting with medical professionals and
having herself checked, knowing that she could be at risk as a result
of having sexual relations with him. Under the circumstances
witnessed firsthand by Doe, nothing that the Dillings could have told
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her could have erased the stark facts that she was presented with on
a daily basis.
In addition, Doe was unable to support her claim that the Dillings
knew, prior to November 1999, that Albert was HIV-positive.
Although Kirk admitted that he was aware that Albert suffered from
genital warts and had sent him to doctors for treatment of that specific
condition, and Betty testified that Kirk on occasion conferred with
Albert’s doctors and from time to time received and reviewed reports
from these doctors and shared the findings with her, there is no
evidence that the records and reports received by Kirk revealed
Albert’s HIV status. In addition, we note that Doe did not show
exactly what type of records and reports were being sent to Kirk by
Albert’s health-care providers. We also observe that at the time of his
evidence deposition in 2003, Kirk steadfastly denied that Albert ever
had AIDS and stated that it was his belief that Albert had been
“misdiagnosed” as being HIV-positive and that he was “killed” as a
result of being administered “drugs that caused his death in less than
three weeks.” Further, Doe did not show that Albert ever shared the
truth of his condition with his parents.
Similarly, Doe did not show that Albert ever authorized any of his
medical providers to discuss his HIV status with his parents.
Although Dr. Cornfield testified that Albert disclosed to him over the
phone in summer 1992 that he was HIV-positive, Dr. Cornfield did
not state that he shared this information with Kirk. In fact, Dr.
Cornfield testified that he did not personally know Kirk. In addition,
although Dr. McGillen testified that during the course of examining
Albert’s medical records he observed the results of a blood test
performed on Albert by Dr. Keller in 1992 and opined that, based
upon the test results, Albert was infected with HIV as of December
1992, no evidence was adduced that Dr. Keller communicated these
specific test results to Kirk. Although Dr. Keller may have been able
to shed light on whether such a communication had made, we note
that the record on appeal does not contain a deposition by Dr. Keller
and that he was not called to testify at trial.
Further, we note that the Dillings’ former son-in-law, James
Walgreen, testified that he had been part of a conversation with the
Dillings at the Dillings’ home that he said took place “approximately
a year before [Albert] passed away,” meaning in November of 1998.
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Walgreen stated that during this conversation Betty revealed that
Albert had AIDS. Walgreen testified that when he responded that
“someone should inform [Doe],” he was told by Kirk and Betty that
they had not yet met Doe and that Walgreen should keep the
information to himself. Walgreen’s testimony that the Dillings stated
that they had not yet met Doe as of November 1998 directly
contradicts Doe’s own testimony that she knew the Dillings from the
time of their first meeting in May 1997.
In sum, Doe was unable to support her allegations that the
Dillings in fact knew the truth of Albert’s condition and that he had
AIDS. In addition, Doe was unable to support her allegations that the
Dillings were liable to her because they “concocted a story about
Albert’s phantom condition” of heavy-metal poisoning and Lyme
disease and, thereby, fraudulently misrepresented his true condition
to her. Similarly, she was unable to support her theory that the
Dillings and the doctors to which Kirk referred Albert conspired
together to lie to Doe about Albert’s ailments. In fact, Doe’s own
testimony belied any argument that she had a “right to rely” upon the
allegedly false representations of the Dillings: Doe not only had
actual knowledge of facts that made her reliance unjustifiable, but she
also could have easily discovered additional facts if she had not
chosen to consciously ignore what was plainly in front of her. See
Soules, 79 Ill. 2d at 286-87. Doe’s difficulty in establishing her
justifiable reliance on the alleged statements of the Dillings supports
our holding today that the tort of fraudulent misrepresentation is not
appropriately expanded to this purely personal setting where plaintiff
seeks to hold the Dillings liable for their alleged failure to disclose
and misrepresent the HIV status of their adult child.
Accordingly, we affirm that portion of the judgment of the
appellate court which vacated the judgment entered on the jury’s
verdict finding defendants liable for fraudulent misrepresentation and
awarding Doe compensatory damages, albeit for reasons different
from those advanced by the appellate court.
We now briefly address the remainder of the issues raised by Doe
before this court. Doe argues that the appellate court erred in
affirming the judgment of the circuit court directing a verdict in favor
of the Dillings on the negligent misrepresentation count. According
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to Doe, the facts adduced at trial supported allowing the negligence
claim to go to the jury. We disagree.
The tort of negligent misrepresentation
“has essentially the same elements [as fraudulent
misrepresentation], except that the defendant’s mental state is
different. The defendant need not know that the statement is
false. His own carelessness or negligence in ascertaining its
truth will suffice for a cause of action. [Citation.] For
negligent misrepresentation, a plaintiff must also allege that
the defendant owes a duty to the plaintiff to communicate
accurate information.” Board of Education of City of Chicago
v. A, C & S, Inc., 131 Ill. 2d 428, 452 (1989).
Because we have just held that the tort of fraudulent
misrepresentation was improperly expanded to Doe’s case, and
because the elements of these two torts are essentially the same, the
appellate court correctly affirmed the judgment of the circuit court
directing a verdict on the negligent-misrepresentation count in favor
of the Dillings. We therefore affirm the appellate court’s judgment on
this point.
Finally, Doe briefly argues that the appellate court erred in
affirming the judgment of the circuit court directing a verdict in favor
of the Dillings on Doe’s claim for punitive damages in connection
with the fraudulent-misrepresentation count. Because we have just
held that the tort of fraudulent misrepresentation was improperly
expanded in this case, Doe’s argument with respect to the punitive
damages claim for this count is moot. We therefore affirm the
appellate court’s judgment on this point.
CONCLUSION
For the foregoing reasons, we hold that the appellate court
improperly expanded the tort of fraudulent misrepresentation to the
specific facts in plaintiff’s case. However, for the reasons set forth in
this opinion, the appellate court properly vacated the judgment
entered on the jury’s verdict finding defendants liable for fraudulent
misrepresentation and awarding Doe compensatory damages.
Accordingly, we affirm the judgment of the appellate court.
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Appellate court judgment affirmed.
JUSTICE BURKE took no part in the consideration or decision
of this case.
JUSTICE KILBRIDE, specially concurring:
I agree with the majority’s holding that the tort of fraudulent
misrepresentation should not be extended to the specific facts of this
case. I also agree with the majority’s decision on the negligent
misrepresentation and punitive damages claims that follows directly
from the conclusion that fraudulent misrepresentation is inapplicable
to these circumstances.
I disagree, however, with the majority’s discussion of the
sufficiency of the evidence on the element of justifiable reliance. The
discussion of that element of fraudulent misrepresentation is
completely unnecessary given our decision not to extend the cause of
action to these facts. Additionally, I believe that the majority makes
several errors in discussing justifiable reliance. The majority fails to
set forth the law on that element or the deferential standard for
reviewing the jury’s finding that Doe justifiably relied upon the
misrepresentations. If justifiable reliance is addressed, I believe that
the applicable law on that element should be discussed and the
evidence should be considered under the correct standard for
reviewing a jury verdict. Accordingly, I specially concur.
Initially, the majority concludes that the tort of fraudulent
misrepresentation should not be extended to these facts. That
conclusion addresses the primary issue in this appeal and renders
unnecessary any discussion of the sufficiency of the evidence to
satisfy the elements of fraudulent misrepresentation.
The majority, nonetheless, goes on to discuss whether Doe
justifiably relied upon the misrepresentations by the Dillings. The
majority states “[o]ur holding that it is inappropriate to expand the
tort of fraudulent misrepresentation to the facts of plaintiff’s case is
supported by plaintiff’s own inability to prove that she justifiably
relied upon the alleged statements made by the Dillings.” Slip op. at
22-23. However, the decision whether to expand fraudulent
misrepresentation to these facts is essentially a policy decision. In
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deciding that issue, this court reviewed the historical application of
fraudulent misrepresentation and concluded that the facts presented
here “are inappropriate for the recognition of this tort.” Slip op. at 22.
That holding applies regardless of whether Doe presented evidence
sufficient to establish any or all of the elements of fraudulent
misrepresentation. In my view, this court should avoid discussion of
the evidence on justifiable reliance because it is unnecessary to the
decision.
I also believe the majority errs in failing to set forth the standard
for justifiable reliance in its discussion of the evidence. The
majority’s only statement on the standard for justifiable reliance is
that “ ‘the reliance upon the misrepresentation must have been
justified, i.e., the other party had a right to rely upon the statement.’ ”
Slip op. at 16 (quoting Charles Hester Enterprises, Inc., 114 Ill. 2d
at 288, and citing Soules, 79 Ill. 2d at 286, and Schmidt, 20 Ill. 2d at
94).
The applicable standard for justifiable reliance originated in
Dillman v. Nadlehoffer, 119 Ill. 567, 577 (1886), when this court
explained that the inquiry focuses on whether “the plaintiff had a
right to rely” upon the allegedly false representations. “[T]he
representations must be viewed in the light of all the facts of which
the plaintiff had actual notice, and also of such as he might have
availed himself by the exercise of ordinary prudence.” Dillman, 119
Ill. at 577. This statement on justifiable reliance has subsequently
been recited and applied by this court. See Soules, 79 Ill. 2d at 286-
87; Schmidt, 20 Ill. 2d at 94. In Dillman, this court explained the
application of the rule, stating:
“If, therefore, in thus considering the representations, it
appears there were facts and circumstances present at the time
they were made, sufficient to put the plaintiff upon his guard,
or to cast a suspicion upon their truthfulness, and that he
neglected to avail himself of the warning thus given, he would
not afterwards be heard to complain, for the reason his own
conduct contributed to the injury.” Dillman, 119 Ill. at 577.
Although this explanation of the rule has not been included in this
court’s decisions subsequent to Dillman, it clarifies that there is no
duty to investigate the truthfulness of a misrepresentation unless the
facts and circumstances put the plaintiff on guard or cast suspicion
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upon its truthfulness. At that point, the plaintiff must heed the
warning given by the circumstances accompanying the statement.
This court’s standard for justifiable reliance originated in
Dillman, a case decided in 1886. Since then, the Restatement
(Second) of Torts has provided another standard for justifiable
reliance. Under the Restatement, the recipient of a fraudulent
misrepresentation is justified in relying upon it unless “he knows that
it is false or its falsity is obvious to him.” Restatement (Second) of
Torts §541, at 88 (1977).
I believe that section 541 of the Restatement provides the proper
standard for justifiable reliance. A claim of fraudulent
misrepresentation requires proof of a statement of material fact
known or believed to be false and made with the intent to induce the
other party to act. Hester, 114 Ill. 2d at 288. The claim involves an
intent to deceive another and have that person act to their detriment
upon the fraudulent misrepresentation. Thus, a claim of fraudulent
misrepresentation contemplates a high degree of culpability. If the
defendant engages in intentional deceit, the recipient of the
misrepresentation should be allowed to rely upon the statement unless
it is obviously false. The Restatement approach is supported by
reason and logic. Accordingly, in the appropriate case, this court
should consider adoption of the Restatement standard for justifiable
reliance.
Additionally, in discussing the evidence on justifiable reliance the
majority makes no statement whatsoever on the standard for
reviewing the jury’s verdict that Doe justifiably relied upon the
Dillings’ misrepresentations. When reviewing a jury’s verdict, we are
required to defer to the jury. A motion for judgment n.o.v. presents a
question of whether, considering the evidence and all reasonable
inferences in the light most favorable to the plaintiff, there is a total
failure or lack of evidence to prove any element of the plaintiff’s case.
York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147,
178 (2006). If the evidence on justifiable reliance is discussed, it
should be reviewed under this deferential standard.
In sum, I agree with the majority that the tort of fraudulent
misrepresentation should not be expanded to the specific facts of this
case. Given that conclusion, it is unnecessary to discuss the
sufficiency of the evidence on justifiable reliance. The sufficiency of
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the evidence on that element of fraudulent misrepresentation is
wholly irrelevant to whether it is appropriate to recognize that tort in
the specific circumstances of this case. Additionally, if the sufficiency
of the evidence is reviewed, the majority should give deference to the
jury’s verdict. The majority’s review of the evidence substitutes this
court’s judgment for that of the jury and usurps the jury’s function of
resolving questions of fact. For these reasons, I specially concur.
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