Doe v. Dilling

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 plaintiffs case is supported by plaintiffs own inability to prove that she justifiably relied upon the alleged statements made by the Dillings.” 228 Ill. 2d at 351. However, the decision whether to expand fraudulent misrepresentation to these facts is essentially a policy decision. In 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.” 228 Ill. 2d at 350. 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.’ ” 228 Ill. 2d at 343 (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 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 plaintiffs 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 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.