In a fraud case that made legal history, the Illinois Supreme Court has refused to reinstate a $2 million award to a woman who claimed her fiancé's mother was liable for falsely assuring her that he did not have AIDS.

The plaintiff, identified only as Jane Doe, won the award in 2004 from a Chicago jury that found Elizabeth Dilling had a duty to tell her son's fiancée the truth about his condition. Albert Dilling died of AIDS and Doe now has the disease herself.

The case was the first in which a parent was held liable for fraudulent misrepresentation in the context of a failure to disclose information about a child's health to a third party.

But an appeals court threw out the jury's verdict in December 2006, ruling that Doe's reliance on what Elizabeth Dilling told her was not justified or reasonable. And this week, the Supreme Court went even further by saying Doe had no case for fraudulent misrepresentation as a matter of law.

“[T]he 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,” the court said, but “In the instant matter, Doe is not suing Albert, who allegedly infected her with HIV; rather, she is suing his parents.”

“It was therefore error for the appellate court to hold that the tort of fraudulent misrepresentation applied in plaintiff’s case,” Justice Charles E. Freeman wrote in the opinion.

The appeals court ruling had cited cases from Minnesota, Maryland and California in which plaintiffs sued a sexual partner for infecting them with genital herpes.

“While in the instant case Doe's fraudulent misrepresentation claim is directed not against her fiancé, Albert, who infected her with HIV, but against his parents, the Restatement [of Torts] does not make any such distinction, and neither do the cases we have cited from other jurisdictions, although they happened to be actions against the individual who infected his intimate partner,” Judge Joseph Gordon of the First District Appellate Court said.

But Freeman refused to go as far as Gordon in the absence of “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.”

Doe alleged that if she had known of her fiancé's true condition earlier, she could have received anti-retroviral medicine to help prevent her HIV infection from developing into AIDS. Freeman said she “should have been fairly suspicious of the true nature of Albert’s health problems” before she even met his parents, but “ignored each and every fact that pointed to the truth.”

Albert Dilling's father died in 2003, leaving his mother as the sole defendant. “She had no reason to believe that [the parents] would lie to her about something of such grave consequence,” an attorney for Doe told the Chicago Tribune. “It's a sad case all around.”

By Matthew Heller
4/4/08