Doe v. Johnson

Decision Date18 February 1993
Docket NumberNo. 5:92:CV:125.,5:92:CV:125.
PartiesJane DOE and Infant Doe by her Next Friend John Smith, Plaintiffs, v. Earvin JOHNSON, Jr., Defendant.
CourtU.S. District Court — Western District of Michigan


Webb A. Smith, Theodore W. Swift, Michael J. Bommarito, Foster, Swift, Collins & Smith, PC, Nan Elizabeth Casey, Reynolds & Guyselman, PC, Lansing, MI, for plaintiffs Jane Doe, Infant Doe and John W. Smith.

James S. Brady, Stephen R. Ryan, Miller, Johnson, Snell & Cummiskey, Grand Rapids, MI, for intervenor Grand Rapids Press.

Stuart J. Dunnings, Jr., Dunnings & Frawley, PC, Lansing, MI, Howard L. Weitzman, Karen Randall, David Phillip Kaplan, Michele Monique Desoer, Katten, Muchin, Zavis & Weitzman, Los Angeles, CA, for defendants Richard Roe, Earvin Johnson, Jr.

Leonard M. Niehoff, James E. Stewart, Butzel Long, Detroit, MI, for movant The Detroit News.

Harry Contos, Jr., Harry Contos, Jr., PC, Kalamazoo, MI, for movant The Kalamazoo Gazette.

Herschel P. Fink, Michael A. Gruskin, Honigman, Miller, Schwartz & Cohn, Detroit, MI, for intervenor Detroit Free Press.


ENSLEN, District Judge.

This case is before the Court on defendant's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), or in the alternative, for a more definite statement under Rule 12(e). Additionally, defendant asks the Court to strike specified portions of the Complaint under Rule 12(f). Plaintiffs' Complaint states eight causes of action against defendant. Although these claims are not identified by name in the Complaint, in their response to the defendant's motions, plaintiffs state that the counts are as follows: (I) Negligence; (II) Breach of duty not to transmit HIV virus; (III) Battery; (IV) Fraud/Failure to warn (of HIV status); (V) Fraud/Failure to warn (of sexually active lifestyle); (VI) Strict liability; (VII) Loss of consortium (Infant Doe); and (VIII) intentional infliction of emotional distress. Plaintiffs' Brief at 2.

Defendant has moved for dismissal of six of these counts (I, III-VI, and VIII). Defendant asserts, for a number of reasons, that plaintiffs have failed to state a claim under Rule 12(b)(6) with respect to these counts. Alternatively, defendant argues that if this Court does not dismiss some or all of these counts, I should order plaintiffs to supply a more definite statement under Rule 12(e) because plaintiffs' Complaint is unclear. Finally, if I rule against defendant on his Rule 12(b)(6) motion, defendant argues that the Court should strike all references in plaintiffs' Complaint to the terms, "promiscuous," "sexually active," or "multiple partner" as used to describe defendant's lifestyle. Defendant alleges that these references are not relevant to this lawsuit and should be stricken pursuant to Rule 12(f).


This case raises unique legal and policy issues, but has fairly straight forward facts. Plaintiff, Jane Doe, alleges that defendant, Earvin Johnson, Jr., wrongfully transmitted the human immunodeficiency virus ("HIV virus") to her through consensual sexual contact. Ms. Doe alleges that the wrongful transmission of the HIV virus occurred on or about the evening of June 22, 1990, or the morning of June 23, 1990, or both, at her home in Ingham County, Michigan. Plaintiffs' Complaint at 3-4. Ms. Doe and Mr. Johnson had "sexual contact" which allegedly led to the transmission of the HIV virus. Ms. Doe alleges that immediately prior to the encounter, she asked Mr. Johnson to use a condom. Mr. Johnson allegedly refused to do so. Nonetheless, Ms. Doe engaged in consensual sexual contact with Mr. Johnson. Id. at 4.

Prior to the evening of June 22, 1990 or morning of June 23, 1990, Ms. Doe claims that Mr. Johnson "was sexually active, having sexual contact and engaging in sexual intercourse with multiple partners." Id. at 3. Thus, Ms. Doe claims that Mr. Johnson "knew or should have known" that he had a high risk of becoming infected with the HIV virus because of his "sexually active, promiscuous lifestyle." Id. Accordingly, Ms. Doe argues that Mr. Johnson should have (1) warned her about his past lifestyle; (2) informed her that he "may have HIV"; (3) informed her that he did in fact "have HIV"; (4) not engaged in sexual contact with her; or (5) used a condom or other method to protect her from the HIV virus.

As a result of this wrongful transmission, Ms. Doe states that she suffers, and will continue to suffer, many consequences including physical illness, severe emotional distress, loss of enjoyment of life, extreme embarrassment, humiliation, shame, medical expenses, and lost wages and benefits. Id. at 5. Moreover, Ms. Doe notes that she will eventually develop acquired immunodeficiency syndrome ("AIDS") and "suffer a slow, certain, and painful death." Id.


A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the pleading. Davis H. Elliot Co., Inc. v. Caribbean Utils. Co., 513 F.2d 1176, 1182 (6th Cir.1975). Technically, of course, the 12(b)(6) motion does not attack the merits of the case. It merely challenges the pleader's failure to state a claim properly. 5A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1364, at 340 (Supp.1990). In deciding a 12(b)(6) motion, the court must determine whether plaintiffs' Complaint sets forth sufficient allegations to establish a claim for relief. The court must accept all allegations in the Complaint at "face value" and construe them in the light most favorable to plaintiffs. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir.1983), cert. denied, 469 U.S. 826, 105 S.Ct. 105, 83 L.Ed.2d 50 (1984); Amersbach v. City of Cleveland, 598 F.2d 1033, 1034-35 (6th Cir.1979).

The Complaint must in essence set forth enough information to outline the elements of a claim or to permit inferences to be drawn that these elements exist. Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); German v. Killeen, 495 F.Supp. 822, 827 (E.D.Mich.1980). The court cannot dismiss plaintiffs' Complaint unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of its claim which would entitle it to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Conclusory allegations are not acceptable, however, where no facts are alleged to support the conclusion or where the allegations are contradicted by the facts themselves. Vermillion Foam Prods. Co. v. Gen. Elec. Co., 386 F.Supp. 255 (E.D.Mich.1974).


Negligent Transmission (count I) Fraud— Failure to Warn of HIV status (count IV) Fraud—Failure to Warn of "Sexually Active Lifestyle" (count V)

In his motion to dismiss, defendant groups counts I, IV and V together for purposes of his first argument because he attacks each count on essentially the same ground: that defendant must have had "knowledge" of his HIV-positive status in order to have a duty under negligence or fraud (failure to warn) theories.

Count I of the Complaint alleges that defendant negligently breached a legal duty he owed to plaintiff Jane Doe not to transmit the HIV virus to her because he knew or should have known that he had the HIV virus. In order to state a claim for a cause of action arising from a tortious injury in the state of Michigan,1 such as that alleged by plaintiff Jane Doe in count I, a litigant must allege: (1) a legal duty owed by defendant to plaintiff; (2) a breach of that duty; (3) causation (proximate and causation in fact) between the breach of the duty and the injury; and (4) resultant damages. Lorencz v. Ford Motor, 439 Mich. 370, 375, 483 N.W.2d 844 (1992).

Defendant argues that count I of plaintiffs' Complaint should be dismissed because he did not owe a legal duty to plaintiff Jane Doe. Generally, as is noted by the parties, in Michigan the "duty" or "standard of care" imposed on every person, in every situation, is that of a "reasonably prudent person." Massey v. Scripter, 401 Mich. 385, 390, 258 N.W.2d 44 (1977); see also Clark v. Dalman, 379 Mich. 251, 261, 150 N.W.2d 755 (1967) (a legal duty under negligence "imposes on every person engaged in the prosecution of any undertaking an obligation to use due care, or to so govern his actions as not to unreasonably endanger the person or property of others.") That is, a defendant must always do or refrain from doing what a reasonably prudent person would do or refrain from doing. Massey, 401 Mich. at 390, 258 N.W.2d 44. However, if the Court finds that a duty does not exist in a given situation, then, of course, a defendant has no obligation to act in accordance with the "reasonably prudent person" standard with respect to the alleged conduct by a plaintiff. The question whether a duty exists is a legal one for the court to decide. Moning v. Alfono, 400 Mich. 425, 436-37, 254 N.W.2d 759 (1977).2 In Michigan, courts consider a number of factors to determine the existence of a legal duty. For instance, in Swartz v. Huffmaster Alarms, 145 Mich.App. 431, 434, 377 N.W.2d 393 (1985), the Michigan Court of Appeals stated: "The determination of whether a duty should be imposed upon a defendant is based on a balancing of the societal interest involved, the severity of the risk, the burden upon the defendant to meet the duty, the likelihood of occurrence and the relationship between the parties." See also Bondie v. Bic Corp., 739 F.Supp. 346, 348 (E.D.Mich.1990) (citing same factors); Lewin v. McCreight, 655 F.Supp. 282, 284 (E.D.Mich.1987) (same); Rodriguez v. Sportsmen's Cong., 159 Mich. App. 265, 271, 406 N.W.2d 207 (1987) (same). Similarly, courts in other jurisdictions weigh a number of factors in determining whether a duty on the part of the defendant exists. These factors include:

(1) Foreseeability of harm to plaintiff; (2) degree of certainty that plaintiff suffered injury; (3) closeness of connection between d

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