Majca v. Beekil

• Decision Date: 24 June 1997
• Docket Number: No. 1-95-3232,1-95-3232
• Citation: 682 N.E.2d 253,289 Ill.App.3d 760,224 Ill.Dec. 692
• Parties: , 224 Ill.Dec. 692 Eileen MAJCA and Michael Majca, Plaintiffs-Appellants, v. Stephen BEEKIL and E. Christopher Caravette, Ex'r and personal Representative of the Estate of Peter Lacher, Deceased, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 253

682 N.E.2d 253

289 Ill.App.3d 760, 224 Ill.Dec. 692

Eileen MAJCA and Michael Majca, Plaintiffs-Appellants, v. Stephen BEEKIL and E. Christopher Caravette, Ex'r and personal Representative of the Estate of Peter

Lacher, Deceased, Defendants-Appellees.

No. 1-95-3232.

Appellate Court of Illinois,

First District, Second Division.

June 24, 1997.

Martin L. Glink, Arlington Heights, for Plaintiffs-Appellants.

Wilson, Elser, Moskowitz, Edelman & Dicker (Bennett R. Heller and David M. Holmes, of counsel) and Johnson & Bell, Ltd., Francis J. Skinner-Lewis and Jennifer E. O'Leary Smith (Thomas H. Fegan and Kelly N. Warnick, of counsel), Chicago, for Defendants-Appellees.

Justice McNULTY delivered the judgment of the court:

Plaintiffs, Eileen and Michael Majca, sued Dr. Stephen Beekil and the estate of Dr. Peter Lacher for negligence that caused plaintiffs to fear that they may develop acquired immune deficiency syndrome (AIDS). We affirm the trial court decision granting summary judgment.

Eileen worked as office manager for Dr. Jorge Gaffud in 1991. As part of her duties, Eileen cleaned Dr. Gaffud's offices and took out the trash. Dr. Beekil rented part of the office space from Dr. Gaffud. Dr. Lacher agreed to pay Dr. Beekil half of the fees he received for work in the office Dr. Beekil rented in exchange for use of the office space, furniture and supplies one day each week. Dr. Lacher used the office on Mondays, while Dr. Beekil worked there on Wednesdays and Fridays. No one used the office on weekends.

Eileen emptied the garbage when she closed the office on Friday, March 1, 1991. She and Dr. Lacher worked in the office on Monday, March 4, and Dr. Lacher saw two patients that day. Dr. Lacher sometimes spat or blew his nose into tissues or paper towels, and he then threw the tissues or towels into the trash. Neither Eileen nor Dr. Lacher took out the trash on Monday.

Because Dr. Gaffud was on vacation, Eileen worked alone in the office on March 5, 1991. Before taking out the trash, she pushed the overflowing garbage down into the bag. A used scalpel, hidden under tissues in the trash, cut her hand. She saw mucus and dried blood on the scalpel, mingled with her wet blood.

Eileen went to another doctor in the office building, and he told her to go to the hospital. He called the hospital and told the nurse there to check Eileen for hepatitis and human immunodeficiency virus (HIV) infection. Six stitches closed the wound. Eileen left the scalpel in the trash, which she discarded the next day. She took antibiotics and pain killers for several weeks to counteract infection and pain from the wound. Her HIV tests in March and June both came back negative.

Dr. Lacher stopped working at the office in March 1991. On November 1, 1991, Dr. Lacher died from AIDS complications. Eileen first learned that Dr. Lacher had AIDS on the day he died. She testified at her deposition:

"[T]hat's when I just lost it.

* * * [A doctor] had given me a sedative because I was just so worked up, and I started vomiting."

She took her next scheduled HIV test in December, and that test also showed no evidence of HIV infection.

In March 1992 Eileen and her husband, Michael, sued Dr. Beekil and Dr. Lacher's estate, seeking compensation for Eileen's medical expenses, pain, and her fear that she may contract AIDS, while Michael sought compensation for loss of consortium. They alleged Dr. Lacher's negligent disposal of the scalpel caused their losses, and they sought to hold Dr. Beekil liable as an occupant of the office and as Dr. Lacher's partner. Plaintiffs presented the affidavit of an AIDS expert who swore that the possibility of transmission could not be ruled out.

The trial court granted Dr. Beekil summary judgment on grounds that Dr. Lacher was neither his partner nor his agent and, as occupier of the office, Dr. Beekil had no way of knowing of the dangerous condition created by Dr. Lacher's negligence. The court also granted Dr. Lacher's estate summary judgment on plaintiffs' claims for damages from fear of AIDS. Plaintiffs settled with the estate all of their claims for medical expenses and pain for the cut. The court then dismissed all remaining claims pursuant to the settlement, denying plaintiffs' motion for reconsideration of the ruling on fear of AIDS. The court, citing Doe v. Surgicare of Joliet, Inc., 268 Ill.App.3d 793, 205 Ill.Dec. 593, 643 N.E.2d 1200 (1994), held that plaintiffs did not present adequate evidence of actual exposure to HIV.

Plaintiffs argue on appeal that Surgicare is wrongly reasoned and that, even under Surgicare, they presented evidence from which a trier of fact could find that, more likely than not, the scalpel that exposed Eileen's blood held some of Dr. Lacher's bodily fluids, and those fluids contained HIV. See Vallery v. Southern Baptist Hospital, 630 So.2d 861, 867-68 (La.App.1993). To support the trial court's decision, defendants rely on scientific articles which are not admissible as substantive evidence of the facts stated therein. Hoem v. Zia, 239 Ill.App.3d 601, 623-24, 179 Ill.Dec. 986, 606 N.E.2d 818 (1992) aff'd, 159 Ill.2d 193, 201 Ill.Dec. 47, 636 N.E.2d 479 (1994). Under the standard advocated by the concurrence in Doe v. Northwestern University, 289 Ill.App.3d 39, 224 Ill.Dec. 584, 682 N.E.2d 145 (1997) (DiVito, P.J., specially concurring), plaintiffs have adequately presented evidence of actual exposure and, therefore, this court should reverse the decision granting summary judgment. However, under the reasoning of the majority in Northwestern, plaintiffs are not entitled to recover because their reasonable fears were never severe enough to warrant tort compensation.

Illinois courts permit a plaintiff who has suffered a physical impact and injury due to a defendant's negligence to recover for the mental suffering that the injury directly causes. Carlinville National Bank v. Rhoads, 63 Ill.App.3d 502, 503, 20 Ill.Dec. 386, 380 N.E.2d 63 (1978). However, commentators have argued that courts should limit recovery for emotional distress, including fear, because of

"(1) the problem of permitting legal redress for harm that is often temporary and relatively trivial; (2) the danger that claims of mental harm will be falsified or imagined; and (3) the perceived unfairness of imposing heavy and disproportionate financial burdens upon a defendant, whose conduct was only negligent, for consequences which appear remote from the 'wrongful' act." W. Keeton, Prosser & Keeton on Torts § 54, at 360-61 (5th ed.1984).

See Corgan v. Muehling, 143 Ill.2d 296, 309, 158 Ill.Dec. 489, 574 N.E.2d 602 (1991). Illinois courts address these concerns by requiring medically verifiable manifestations of severe emotional distress. See Corgan, 143 Ill.2d at 311-12, 158 Ill.Dec. 489, 574 N.E.2d 602. In Allen v. Otis Elevator Co., 206 Ill.App.3d 173, 183-84, 150 Ill.Dec. 699, 563 N.E.2d 826 (1990), the plaintiffs foreseeably experienced fear, with physical manifestations of distress, as a result of the defendant's negligence, but the court held that the foreseeable fear and distress did not reach a degree of severity that justified tort compensation. Thus, not all negligently caused fears are compensable.

The concerns raised by Keeton and addressed in Corgan particularly apply to claims that a defendant's negligence has caused a plaintiff to fear future illness. These concerns should lead courts in such cases to restrict recovery to compensation for severe emotional distress arising from serious fear occasioned by a substantial, medically verifiable, possibility of contracting the disease. In Wetherill v. University of Chicago, 565 F.Supp. 1553 (N.D.Ill.1983), the court, interpreting Illinois law, found that a plaintiff claiming that a physical impact caused fear of cancer needed to prove "a reasonable fear, not a high degree of likelihood" of contracting the feared illness. Wetherill, 565 F.Supp. at 1559. The court noted that "the distinction is meaningful, for fears of future injury can be reasonable even where the likelihood of such injury is relatively low." Wetherill, 565 F.Supp. at 1559. The court emphasized that the plaintiffs in that case could present medical evidence of studies showing that they had an increased risk of developing cancer as a result of the defendants' negligence.

A small probability of contracting disease must be balanced against the probable harm if the disease is contracted to determine whether a plaintiff has alleged adequate grounds for recovering for severe emotional distress. The relatively minor fears of the the plaintiffs in Allen are not comparable to a real, foreseeable fear of AIDS, such as plaintiffs in this case suffered; however, even a foreseeable fear of deadly disease may not be compensable if the feared contingency is too unlikely.

Where hysterical fear of a disease is sufficiently widespread, and popular knowledge concerning its etiology is limited, a plaintiff may foreseeably experience severe emotional distress without medically verifiable evidence of a substantially increased risk of contracting the disease. Most courts have held that recovery for fear of disease should not extend to such foreseeable fears, because, as commentators have noted, such broad recovery rewards ignorance about the disease and its causes. See Note, The Fear of Disease as a Compensable Injury: An Analysis of Claims Based on AIDS Phobia, 67 St. John's L.Rev. 77 (1993); J. Maroulis, Can HIV-Negative Plaintiffs Recover Emotional Distress Damages for Their Fear of AIDS, 62 Fordham L.Rev. 225 (1993). Courts have accordingly restricted recovery to fears supported by medical evidence of an increased risk of contracting disease. See Wetherill, 565 F.Supp. at 1559-60; Vallery, 630 So.2d at 866; Ferrara v. Galluchio, 5 N.Y.2d 16, 152 N.E.2d 249, 176 N.Y.S.2d 996 (1958); Eagle-Picher Industries, Inc. v. Cox, 481 So.2d 517, 528-29 (Fla.App.1985); but see Anderson v. Welding Testing...