Bonhomme v. St. James

JUSTICE SCHOSTOK,

concurring in part and dissenting in part:

I agree with the majority’s determination to affirm the dismissal of the plaintiffs second amended complaint. However, I disagree with reversing the dismissal of the plaintiffs third amended complaint and would instead affirm that dismissal. It is not appropriate to expand the application of fraudulent misrepresentation to the facts in this case. Moreover, the plaintiff has not pleaded facts sufficient to establish the element of justifiable reliance.

In Doe, our supreme court acknowledged the decisions in Jewish Children’s Bureau and Catholic Charities, but stated that those cases did not support a determination “that Illinois has recognized the tort of fraudulent misrepresentation in purely personal settings.” Doe, 228 Ill. 2d at 348. The court noted that adoption is not a purely personal setting. Rather, adoption agencies are in the business of facilitating adoptions and they have an inherent duty to provide full and complete disclosure of an adopted child’s background and history. Id. Moreover, the Doe court noted that other states have recognized a cause of action under the theory of fraudulent misrepresentation for the transmission of a sexually transmitted disease. Id. However, that cause of action has been based on a person’s legal duty to prevent the spread of communicable disease and the interest of the state in prevention and control of dangerous diseases. Id. at 349-50. Under the circumstances in the present case, involving purely personal dealings between two individuals, the plaintiff has failed to show that the state has any particular policy interest at stake. This case does not involve a duty to prevent the spread of disease or any duty of disclosure. Accordingly, there is no basis on which to extend the tort of fraudulent misrepresentation to the circumstances in the present case.

Yet another reason to affirm the dismissal of the third amended complaint is that the plaintiff cannot show that she justifiably relied on the defendant’s alleged misrepresentations. The reality of the Internet age is that an online individual may not always be — and indeed frequently is not — who or what he or she purports to be. The plaintiff s reliance on the defendant’s alleged misrepresentations, in deciding to spend $10,000 on Christmas gifts for people who allegedly lived in another state and whom she had never met, was not justifiable. The plaintiff also cannot be said to have justifiably relied on the alleged misrepresentations in incurring expenses to move to another state to live with someone she had never met in person and who had cancelled a previous face-to-face meeting after she had purchased nonrefundable airline tickets. For the foregoing reasons, I respectfully concur in part and dissent in part.