An extraordinary torts case is now before the Illinois Supreme Court where a women is continuing a fight to hold the parents of a former lover liable for their failure to tell her that their son had AIDS. A jury found the parents, Elizabeth and Kirkpatrick Dilling liable for $2 million.

Jane Doe, as she is called in the lawsuit, is now HIV-positive and  her former fiance, Albert Dilling, is deceased.  In March 2004, a Cook County jury awarded her $2 million after she alleged that parents — Elizabeth Dilling and her late husband, Kirkpatrick Dilling — knew that their son was HIV-positive and lied to Doe about the reason for his deteriorating health.  She claimed that the failure to tell her resulted in her own exposure and failure to take measures after exposure. She said that the parents told her that her fiance had heavy metal poisoning and later said that he had Lyme disease. 

Elizabeth Dilling swears that was the truth:  “We did not know he had AIDS . . . Our doctors diagnosed him with heavy metal poisoning and then in July 1999 he was diagnosed with Lyme disease. I never understood why they didn’t test him for AIDS.” An appellate court ruled that there was no evidence indicating that the Dillings had knowledge of their son’s HIV status and that Doe should not have relied on Dilling’s parents for the medical status of their son. It is a fascinating case of the responsibility of others to warn of such a condition. Putting aside the factual decision of actual knowledge, there is a considerable question of why the parents are liable for failing to inform an adult of risks in a relationship.  Certainly Albert was potentially liable for battery, negligence, and negligent infliction of emotional distress. Indeed, his conduct was criminal under Illinois law. See 720 ILCS 5/12-16.2 (West 1996). 

The case turns on the basis for a claim of fraudulent misrepresentation, which requires that the plaintiff establish: (1) the defendant made a false statement of material fact, which (2) the defendant knew or believed to be false and (3) made it with intent to induce the plaintiff to act; (4) the plaintiff acted in justifiable reliance on the truth of the statement; and (5) thereby sustained damages.Notably, Doe likely contracted the disease before she met the Dillings. She is arguing that she failed to get treatment due to the delay in knowing of the disease.There is a long line of cases where people have prevailed in allegations of fraudulent concealment of sexually transmitted diseases.

As noted by the appellate court, the case falls into a grey area of the Second Restatement of Torts. Under Section 557A,

“One who by a fraudulent misrepresentation or nondisclosure of a fact that it is his duty to disclose causes physical harm to the person *** of another who justifiably relies upon the misrepresentation, is subject to liability to the other.”  

Restatement (Second) of Torts § 557A (1977).

There is no limitation that the person caused the harm as opposed to a third party.Judge Richard Posner addressed this issue of justifiable reliance in Ampat/Midwest, Inc. v. Illinois Tool Works:

“If the victim acted recklessly in the face of the alleged fraud, it is difficult to believe that he was actually deceived; he may simply regret having assumed a risk that has turned out badly. The requirement of justifiable reliance backstops the jury’s determination of actual reliance. It is on this theory that a person who plays ostrich may be held to have acted deliberately: to know, and to want not to know because one suspects, may be, if not the same state of mind, the same degree of fault.”  

Furthermore, as the appellate court noted, the Illinois courts (like other states) follow a rule on reliance that:

“[O]ne is justified in relying upon the representations of another, without independent investigation, where the person to whom the representations are made does not have the same ability to discover the truth as the person making the representations.”  

Gerill Corp. v. Jack L. Hargrove Builders, Inc., 128 Ill. 2d 179, 195, 538 N.E.2d 530, 131 Ill. Dec. 155 (1989).

Yet, it is not clear that the Dillings had such superior ability to discover the truth or had actual knowledge.Once again, Albert is the one who should have been sued in the case. His parents make a poor substitute due to both the factual and legal problems. If successful, the lawsuit could also significantly increase the potential liability for all family members of HIV-positive people: prompting them to disclose such conditions to anyone who may be in sexual contact with the relative. That could trigger privacy and harassment lawsuits. 

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