Majca v. Beekil

• Decision Date: 01 October 1998
• Docket Number: 83886,Nos. 83677,s. 83677
• Citation: 233 Ill.Dec. 810,701 N.E.2d 1084,183 Ill.2d 407
• Parties: , 233 Ill.Dec. 810 Eileen MAJCA et al., Appellants, v. Steven BEEKIL et al., Appellees. John DOE et al., Appellants, v. NORTHWESTERN UNIVERSITY et al., Appellees.
• Court: Illinois Supreme Court

Page 1084

701 N.E.2d 1084

183 Ill.2d 407, 233 Ill.Dec. 810

Eileen MAJCA et al., Appellants, v. Steven BEEKIL et al., Appellees.

John DOE et al., Appellants, v. NORTHWESTERN UNIVERSITY et al., Appellees.

Nos. 83677, 83886.

Supreme Court of Illinois.

Oct. 1, 1998.

[183 Ill.2d 408] [233 Ill.Dec. 811] John Thomas Moran, Jr., Law Offices of John Thomas Moran, Chicago, for Eileen and Michael Majca.

Thomas H. Fegan, Johnson & Bell, Ltd., Chicago, Gary A. Grasso, Ungaretti & Harris, Chicago, David M. Holmes, Wilson, Elser, Moskowitz, Edelman & Dicker, Chicago, for E. Christopher Caravette.

Donald G. Weiland, Michael L. Closen, Chicago, for John Doe.

Anne E. Rea, Sidley & Austin, Chicago, Amy D. Mayber, Northwestern University, Evanston, for Northwestern University.

Justice MILLER delivered the opinion of the court:

The plaintiffs in these consolidated cases filed complaints in the circuit court of Cook County seeking to recover damages for their fear of contracting acquired immune deficiency syndrome (AIDS). In cause No. 83677, the trial judge granted summary judgment in favor of defendants. In cause No. 83886, the trial judge dismissed plaintiffs' complaint. In each case, the appellate court affirmed. We granted plaintiffs' petitions for leave to appeal (166 Ill.2d R. 315) and consolidated the cases for the purposes of this appeal. We affirm the judgments of the appellate court.

BACKGROUND

Cause No. 83677

Plaintiff, Eileen Majca, was employed as an office worker by Dr. Jorge Gaffud, a general surgeon with an office in Homewood, Illinois. Eileen's duties included scheduling appointments, cleaning the office, and emptying the wastebaskets. Defendant, Dr. Steven Beekil, rented space from Dr. Gaffud and was entitled to use the office for his podiatry practice on Mondays, Wednesdays, and Fridays. In turn, Dr. Beekil allowed Dr. Peter Lacher, whose estate is a defendant, to use the office on Mondays for Dr. Lacher's podiatry practice. In exchange for using the office, Dr. Lacher paid Dr. Beekil 50% of the fees that Dr. Lacher collected from patients he saw at the office.

Eileen stated in her deposition that she emptied the wastebaskets before she left the office on Friday, March 1, 1991. On Monday, March 4, 1991, Dr. Lacher saw two patients. Eileen did not know what treatment, if any, the patients received and did not recall the identity of the patients. The following afternoon (Tuesday, March 5, 1991), Eileen again emptied the waste baskets. Eileen was the only person in the office that day because Dr. Gaffud was on vacation.

Dr. Lacher's waste basket was filled with trash. Eileen pressed down on the trash to compact it so that she could grab the plastic liner. As she was withdrawing her hand, Eileen felt a twinge, looked down, and saw that her hand was cut and bleeding. Eileen saw that there was a scalpel in the waste basket. In addition to her own wet blood on the scalpel, Eileen stated that she saw dried blood and a clear, mucus-like substance on the scalpel. The surrounding trash consisted After consulting a doctor across the hall, Eileen went to a nearby hospital's emergency room. The cut on her hand required six stitches to close and Eileen was tested for human immunodeficiency virus (HIV). Following treatment, Eileen returned to the office. Eileen cleaned up the blood from her cut and then dumped the trash, including the scalpel, into the dumpster. Eileen's HIV test was negative. Two subsequent HIV tests, performed three and nine months after the incident, were also negative.

[233 Ill.Dec. 812] of used tissues, paper towels, scrap paper, and gauze.

Following the incident, Eileen stated that Dr. Lacher did not return to the office for a few months. In retrospect, Eileen believed that Dr. Lacher was suffering from an HIV-or AIDS-related illness at the time. After a few months, Dr. Lacher returned to the office on at least one occasion. Eileen, however, did not ask Dr. Lacher any questions regarding the presence of the scalpel in the waste basket. It was the custom in the office to always dispose of scalpels and needles in a red "sharps" container. Also, Eileen did not attempt to find out whether Dr. Lacher knew who had used the scalpel or if he knew on whom the scalpel had been used. Dr. Lacher later died of an AIDS-related illness on November 1, 1991.

Eileen and her husband, Michael Majca, filed a four-count amended complaint against Dr. Beekil and the estate of Dr. Lacher. Plaintiffs alleged that Dr. Lacher was either the partner of Dr. Beekil or the actual or apparent agent of Dr. Beekil. Under count I (negligence), count II (ultrahazardous or inherently dangerous activities), and count III (negligent infliction of emotional distress), plaintiffs sought damages for Eileen's medical expenses, the pain and suffering caused by the injury to her hand, and her fear of contracting AIDS as a result of the cut. Under count IV (loss of consortium and society), plaintiffs sought damages for Michael's fear of contracting AIDS through sexual contact with Eileen.

Defendants filed motions for summary judgment. See 735 ILCS 5/2-1005 (West 1994). Both the estate of Dr. Lacher and Dr. Beekil argued that plaintiffs' claim for fear of contracting AIDS must fail because there was no evidence to show that Eileen was actually exposed to HIV or AIDS. Dr. Beekil also argued there was no evidence to support plaintiffs' claim that he was negligent or that he was vicariously liable for the actions of Dr. Lacher.

Plaintiffs responded to defendants' motions and attached the affidavit of Dr. Linda Pifer, a microbiologist with experience in the fields of HIV infection and AIDS. See 735 ILCS 5/2-1005 (West 1994); 145 Ill.2d R. 191(a). In her affidavit, Dr. Pifer opined that Eileen was exposed to HIV on March 5, 1991, that Eileen was at risk of contracting HIV, and that Eileen's fear of contracting HIV or AIDS was reasonable. In support of these opinions, Dr. Pifer stated that "whether or not HIV can be unequivocally proved to be on the scalpel is beside the point and immaterial to [Eileen's] fear of becoming HIV positive."

Dr. Beekil filed a motion to strike Dr. Pifer's affidavit because the affidavit failed to satisfy Supreme Court Rule 191(a) (145 Ill.2d R. 191(a)). In part, Rule 191(a) provides that an affidavit in opposition to a motion for summary judgment "shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based * * * [and] shall not consist of conclusions but of facts admissible in evidence."

At a hearing on defendants' motions for summary judgment, the trial judge found that Dr. Pifer's affidavit contained legal conclusions unsupported by a factual basis. The judge struck the affidavit pursuant to Rule 191(a). The judge then granted summary judgment in favor of defendants on plaintiffs' claim for fear of contracting AIDS. The judge relied on Doe v. Surgicare of Joliet, Inc., 268 Ill.App.3d 793, 798, 205 Ill.Dec. 593, 643 N.E.2d 1200 (1994), for the proposition that a claim for fear of contracting AIDS requires actual exposure to HIV and a likelihood of developing AIDS in the future. The judge found there was no evidence to demonstrate that Eileen was actually exposed to HIV or that Eileen was likely to develop AIDS in the future.

In addition, the judge found there was no evidence to demonstrate that Dr. Beekil was vicariously liable for the actions of Dr. Lacher or that Dr. Beekil was negligent. Thus, the judge granted summary judgment in favor of Dr. Beekil on plaintiffs' remaining claims. At a later hearing, plaintiffs and the estate of Dr. Lacher informed the judge that they had reached a settlement agreement regarding Eileen's medical expenses and the pain and suffering that resulted from the cut to her hand. The settlement agreement resolved outstanding issues as to the estate of Dr. Lacher.

The appellate court affirmed the judgment of the circuit court. 289 Ill.App.3d 760, 224 Ill.Dec. 692, 682 N.E.2d 253. The three-judge panel, however, did not agree on a standard for evaluating plaintiffs' claim for fear of contracting AIDS. Two separate special concurrences were filed with the opinion that contained the judgment of the court.

We granted plaintiffs' petition for leave to appeal and consolidated the case with cause No. 83886. While the appeal was pending here, Dr. Beekil and the estate of Dr. Lacher each filed a motion to strike the references in plaintiffs' brief to the affidavit of Dr. Pifer. Plaintiffs have filed an objection to defendants' motions. We have taken these motions with the case.

Cause No. 83886

In cause No. 83886, the plaintiffs, John Doe, Anita Doe, Bertha Doe, Brian Doe, Carol Doe, and Laurel Doe, each received dental treatment from defendant, Dr. John Noe. At the time of plaintiffs' treatment, Dr. Noe was a dental student providing treatment to patients at Northwestern University's dental clinic. Northwestern University is also a defendant. The Does and Dr. Noe are proceeding under fictitious names pursuant to section 2-401(e) of the Code of Civil Procedure (735 ILCS 5/2-401(e) (West 1992) ("Upon application and for good cause shown the parties may appear under fictitious names")).

On July 22, 1991, Northwestern sent a letter to plaintiffs and other clinic patients treated by Dr. Noe which stated in part:

"Recently we learned that a dental student involved in providing care to you in the Dental Clinic has tested positive for HIV, the virus that causes Acquired Immune Deficiency Syndrome (AIDS).

We believe, based on the most current and reliable scientific evidence, that the likelihood that you were infected with the HIV virus as a result of contact with this student is extremely low. All persons providing dental care are required to follow precautions designed to prevent the communication of diseases, including HIV. These precautions have been taken. However, we strongly recommend that you be tested for the presence of the virus.

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