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5-4phillips V Irons PDF
5-4phillips V Irons PDF
complaint, defendant successfully moved to dis- paternity suit, defendant informed the circuit
miss under section 2-615. Plaintiff ultimately court she “began to suspect that [she] was preg-
FN3
filed a third amended complaint, which was dis- nant during the week of April 5, 1999.”
missed with prejudice, the circuit court finding
each count “continues to lack sufficient facts” ne- FN2. Although the legal issues involved
cessary to state a cause of action. Plaintiff timely are dissimilar from those presented in the
appeals. case sub judice, there are at least two
cases dealing with self-insemination. In
The question presented by a section 2-615 Jhordan C. v. Mary K., 179 Cal.App.3d
motion to dismiss is whether sufficient facts have 386 (Cal.Ct.App.1986), an unmarried
been pled in the complaint which, if proved, woman artificially inseminated herself at
would entitle plaintiff to relief. RBC Mortgage home with the semen of a known donor
Co. v. National Union Fire Insurance Co., 349 and gave birth to a child she intended to
Ill.App.3d 706, 711, 812 N.E.2d 728 (2004). All raise jointly with a close woman friend.
well-pleaded facts in the complaint and all reas- The donor filed an action to establish pa-
onable inferences drawn therefrom are taken as ternity and visitation rights. With regard
true, and are construed in the light most favorable to the mother's ability to inseminate her-
to plaintiff. Feltmeier v. Feltmeier, 207 Ill.2d self, the Court of Appeal of California
263, 267, 798 N.E.2d 795 (2003) (Feltmeier ). A stated “[i]t is true that nothing inherent
complaint is susceptible to dismissal under sec- in artificial insemination requires the in-
tion 2-615 only when it clearly appears that no set volvement of a physician. Artificial in-
of facts could be proved under the pleadings that semination is, as demonstrated here, a
would entitle plaintiff to relief, and where the cir- simple procedure easily performed by a
cuit court can determine the relative rights of the woman in her own home.” Jhordan C.,
parties solely from the pleadings. RBC, 349 179 Cal.App.3d at 393-94.
Ill.App.3d at 711. To state a cause of action ad-
equately, the claim must be sufficient both legally In State v. Frisard, 694 So.2d 1032
and factually, setting forth a legally recognized (La.Ct.App.1997), the child's mother
claim as its basis, as well as pleading facts which filed a paternity suit against the father,
are cognizable legally. RBC, 349 Ill.App.3d at who denied having sexual intercourse
711. A complaint dismissed under section 2-615 with the mother, to whom he was not
requires the reviewing court to apply a de novo married. He alleged she, a nursing as-
standard of review. Vitro v. Mihelcic, 209 Ill.2d sistant, performed oral sex on him in a
76, 81, 806 N.E.2d 632 (2004). hospital, made him wear a condom,
and used his sperm to inseminate her-
I self in a nearby bathroom with a “red
Plaintiff argues the circuit court erred in dis- looking bulb with a glass tube.” Fris-
missing count I of his complaint for intentional ard, 694 So.2d at 1035. In addition to
infliction of emotional distress. He claims de- DNA results and plaintiff's affidavit, in
fendant's conduct was “extreme and outrageous,” which she stated she had sexual inter-
when she lied about being unable to engage in in- course with defendant and did not have
tercourse or to conceive due to her menses and intercourse with any other man 30
agreed to prevent conception of children prior to days before or after the date of concep-
marriage, but then intentionally engaged in oral tion, the Court of Appeal of Louisiana
sex so she could harvest his semen to artificially explained that defendant's “testimony
FN2
inseminate herself. Plaintiff asserts defendant showed that he had some sort of sexual
falsely claimed not to be pregnant in her petition contact with plaintiff around the time
for dissolution, yet in her response to plaintiff's frame of alleged conception, although
“Demand for Bill of Particulars” in the pending he denied that they had sexual inter-
could not become pregnant due to her menstrual legedly fathered.” He states that his continued
cycle, but deceitfully engaged in sexual acts, thoughts of this child have caused him difficulty
which no reasonable person would expect could sleeping and has interfered with his professional
result in pregnancy, to use plaintiff's sperm in an obligations and personal activities. He feels “as if
unorthodox, unanticipated manner yeilding ex- he is trapped in a terrible nightmare,” he is
treme consequences. Under these facts, it is cog- “burdened with feelings of betrayal,” and “his
nizable that if an average member of the parties' ability to trust has been greatly diminished,”
community were told of these circumstances, a which has “greatly affected his social life.”
reasonable response could be, “outrageous!”
Plaintiff must allege some facts which, if
*4 Next, it must be determined whether true, would support the conclusion that the emo-
plaintiff alleged sufficient facts to establish de- tional distress actually suffered as a proximate
fendant intended that her conduct inflict severe result of defendant's conduct was severe;
emotional distress, or knew there is at least a high however, merely characterizing emotional dis-
probability that it would. In support of this ele- tress as severe is insufficient. Welsh, 306
ment, plaintiff argues that defendant used her sci- Ill.App.3d at 155-56. It is the degree of emotional
entific knowledge to procure his sperm to impreg- distress actually suffered by plaintiff which sep-
nate herself successfully, while plaintiff believed arates the actionable from the non-actionable.
conception was physically impossible and against Welsh, 306 Ill.App.3d at 155. “The intensity and
defendant's wishes. duration of the distress are factors to be con-
sidered in determining its severity.” McGrath,
Under these circumstances, even if defendant 126 Ill.2d at 86.
intended to accomplish only conception and pro-
creation, she knew there was at least a high prob- Here, plaintiff has not stated merely that his
ability that her manner of so doing would inflict distress is severe, but has illustrated with ex-
severe emotional distress on plaintiff. According amples the effect of defendant's actions on him.
to plaintiff, defendant was aware of his desire to As plaintiff's claim involves a physically and psy-
have children only after marriage. Further, chologically manipulated non-consensual preg-
plaintiff believed defendant could not become nancy, it is cognizable that the intensity of his
pregnant, not only due to the nature of the sexual emotional distress is great and its duration long-
acts, but because he believed she was infertile at lasting. Despite defendant's contentions that
the time as a result of her menstrual cycle. plaintiff's symptoms are insufficient in law to
Months later, however, defendant informed support an action for IIED, in “Illinois, unlike
plaintiff he fathered her child. From these facts, if some other jurisdictions, physical injury or disab-
proved, it may be inferred reasonably that defend- ility is not required to accompany, or result from,
ant knew manipulating plaintiff into unwittingly the psychic trauma.” McCaskill v. Barr, 92
conceiving a child out of wedlock would inflict Ill.App.3d 157, 159, 414 N.E.2d 1327 (1980) (
severe emotional distress. Further, contrary to de- McCaskill ), citing Knierim v. Izzo, 22 Ill.2d 73,
FN5
fendant's assertion, plaintiff is not claiming the 83, 174 N.E.2d 157 (1961).
act of filing the paternity suit itself caused him
severe emotional distress; it was the result of de- FN5. The court noted further, “[w]ithout
fendant's actions in their entirety. any physical manifestation to be object-
ively observed, it is more important than
Last, it must be determined whether plaintiff ever that the [trier of fact] possess suffi-
set forth sufficient facts to allege “severe” emo- cient factual data in order to say that the
tional distress. Plaintiff claims he “often finds events would lead an ordinarily reason-
himself nauseated and unable to eat, especially able person into a state of mental dis-
when-as a family practitioner-he treats small chil- tress.” McCaskill, 92 Ill.App.3d at 159.
dren who are the same age as the child he al-
*5 At this stage plaintiff is not required to
prove his case: “[a]lthough a complaint is defi- Ill.App.3d at 187. The circuit court did not err in
cient when it fails to allege the facts necessary for dismissing plaintiff's claim for fraudulent misrep-
recovery, [ ] plaintiff is not required to set out resentation.
evidence; only the ultimate facts to be proved
should be alleged, not the evidentiary facts tend- III
ing to prove such ultimate facts.” Chandler v. Plaintiff argues last that the circuit court
Illinois Central R.R., 207 Ill.2d 331, 348, 798 erred in dismissing count III of his complaint for
N.E.2d 724 (2003). Whether plaintiff will prevail conversion. He asserts that defendant committed
on the elements of his claim for IIED is a quintes- the tort when she took his “semen, sperm, and ge-
sential question of fact to be resolved by the trier netic material without his permission, for the pur-
of fact. Accordingly, the circuit court erred in dis- pose of conceiving a child, purportedly within the
missing count I of plaintiff's complaint. bounds of her marriage to Adeleye.”
Ill.App. 1 Dist.,2005.
Phillips v. Irons
Not Reported in N.E.2d, 2005 WL 4694579
(Ill.App. 1 Dist.)
END OF DOCUMENT