Motion to Dismiss for Failure to State Claim

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MOTION TO DISMISS

Defendant [Name] by and through [his/her] attorney [Name of Attorney], and pursuant to 735 ILCS 5/2-615, brings this motion to dismiss Plaintiff [Name]’s complaint for failure to state a cause of action, for the following reasons:

1. Plaintiff filed this complaint on [Date], alleging that plaintiff cut [his/her] hand on a scalpel while emptying a wastebasket at work. The defendant [Name] for whom plaintiff works, was later diagnosed with an AIDS related illness. Plaintiff sued defendant under a negligence theory, claiming damages for the fear of contacting AIDS. Nowhere in plaintiff’s complaint does [he/she] allege an actual-exposure to the AIDS virus when [he/she] cut [his/her] hand on the scalpel.

2. The Illinois Supreme Court dealt with this issue in Majca v. Beekil, 183 Ill. 2d 407 (1998). There the Illinois Supreme Court ruled that to state a cause of action for fear of contracting AIDS, the plaintiff must plead and prove actual exposure to the virus. Dismissal of the cause of...