What exactly is spoliation?
When most people hear the word spoliation, they think of food going rotten.
On the contrary, spoliation of evidence is a lesser-known cause of action that provides an injured party with a remedy when the evidence upon which her case relies was destroyed by another person. The Illinois Supreme Court first established this cause of action in Boyd v. Travelers Ins. Co., 166 Ill. 2d 188 (1995). The court held that while there is no general duty to preserve evidence, a duty will arise "through an agreement, a contract, a statute, or another special circumstance." Id. at 195. Additionally, the court provided that a defendant may voluntarily assume a duty to preserve evidence by affirmative conduct. Id. This paradigm was eventually molded into a two prong test that is used to determine when a defendant has a duty to preserve evidence.
In general negligence suits, of course, a plaintiff must prove 1) that the defendant had a duty to the plaintiff, 2) that the defendant breached that duty, 3) that the defendant's breach caused the plaintiff's injury and 4) that the plaintiff did in fact suffer an injury. In order to state a cause of action for spoliation, however, a plaintiff must assert more.
As the Illinois Supreme Court elucidated in Dardeen v. Kuehling, 213 Ill. 2d 329, 336 (2004), a plaintiff must first allege that the defendant had a duty to preserve evidence pursuant to an agreement, contract, statute, special circumstance or voluntary undertaking. Id. And second, the plaintiff must allege that a reasonable person in the defendant's position would foresee that the subject evidence would be material to a potential civil action. Id. The Dardeen court aptly referred to the first prong of the test as the "relationship prong" and the second prong as the "foreseeability prong." Id.
In Boyd, the court found that the defendant had a duty to preserve evidence when the plaintiff was injured in an explosion caused by a propane heater and his insurance carrier lost the heater after taking possession of it in order to inspect it. Boyd, 166 Ill. 2d at 191. The court reasoned that the defendant-insurer was aware that the heater was of material importance to future litigation when it took the heater for its own investigation of the case. Id. at 195. The court held that the plaintiff has sufficiently stated a claim for spoliation of evidence by alleging that the defendants knew that the heater was material to future litigation and that the defendants voluntarily assumed a duty to preserve the evidence. Id. at 196-97.
In Dardeen, on the other hand, the court held that the defendant-insurer did not have a duty to preserve evidence because it never controlled the evidence at issue. In that case, the plaintiff was injured when he fell due to a hole in a brick sidewalk outside of the defendant-homeowner's house. Dardeen, 213 Ill. 2d at 331. The defendant-homeowner called her insurance carrier and asked whether she could remove the faulty bricks in order to avoid any future accidents. Id. The insurer indicated that the homeowner could remove the bricks and thus the evidence central to the case was destroyed, and the plaintiff's premises liability claim was impeded. Id. The court reasoned that a single phone call from an insured to her insurer was insufficient to satisfy the relationship prong of the duty test. Id. at 338.
Since Dardeen, several Illinois Appellate Court opinions have applied Boyd and held that a duty to preserve evidence was owed. In Jones v. O'Brien Tire and Battery Service Center, Inc., 374 Ill. App. 3d 918, 928 (5th Dist. 2007), for example, the Fifth District Appellate Court found that Defendants had a duty to preserve evidence pursuant to a voluntary undertaking theory. The court reasoned that when an entity undertakes to preserve evidence for its own benefit, this voluntary undertaking imposes a duty to continue to preserve the evidence for the benefit of any other potential litigants. Id. In that case, the plaintiff's decedent was killed when a wheel assembly separated from the defendant's truck and struck the decedent's car. Id. at 921. The defendant-driver's insurer hired an expert who inspected the wheels on the day of the accident. Id. at 922. In addition, the defendant-insurer directed the defendant-driver to preserve the wheel, and later wrote him a letter indicating that he should maintain the wheel in a secure place in case it would be needed for future litigation. Id. Unfortunately, the defendant-driver repaired his truck and discarded the suspect wheel, thus destroying the relevant evidence. Id. at 923. The court held that the defendant-driver and the defendant-insurer had a duty to preserve the wheel. Id. at 927. The court reasoned that "while it is certainly true that [the insurer] did not have the kind of complete control over the wheels that it would have had if it had taken possession of them, it had- and exercised- the authority to direct [the defendant driver], as its insured, to preserve the wheels." Id. at 927. Thus, the court found that one may voluntarily assume a duty by having effective control over the evidence when one has the authority to direct the entity in possession of the evidence.
Similarly, in Brobbey v. Enterprise Leasing Co. of Chicago, 404 Ill. App. 3d 420 (1st Dist. 2010), the First District Illinois Appellate Court held that the defendant had a duty to preserve evidence pursuant to special circumstances. In that case, the plaintiffs were severely injured when the rental van in which they were driving experienced brake failure. Id. at 423. Prior to the accident, various drivers of the van noticed a strange wobbling of the steering wheel each time the brakes were applied. Id. The plaintiffs notified defendant Enterprise, the rental car company, of the wobbling, but the defendant assured the plaintiffs that the car was functioning properly. Id. After the occurrence, the defendant conducted its own investigation and concluded that there was no malfunction of the brake system and then released the van to be destroyed. Id. at 424. The court reasoned that because the plaintiffs complained to the defendant that there was some defect that caused the van to wobble and brakes to malfunction, and because the defendant undertook to preserve the van to conduct its own investigation and the van was in possession of the defendant, the defendant had a duty to continue to preserve the evidence pursuant to special circumstances. Id. at 435.
Recently, Devon C. Bruce and Kathryn L. Conway of Power Rogers & Smith, P.C. submitted an appellate amicus brief on behalf of the Illinois Trial Lawyers Association in a case in which four men were injured when the concrete beam upon which they were standing collapsed. Martin v. Keeley & Sons, Inc., 2011 IL App (5th) 100117. After the collapse, while the men were still in the hospital, another entity destroyed the concrete beam. Id. at ¶ 9. Those potentially responsible for the collapse were provided an opportunity to inspect the beam. Unsurprisingly, these entities determined during their investigation that they were not at fault for the collapse. The men who were injured after falling from the beam, however, were not provided an opportunity to inspect the beam nor were they informed that the beam was going to be destroyed. As in Jones, the Fifth District Appellate Court found that defendants voluntarily assumed a duty to continue to preserve the beam for the plaintiffs' benefit. Id. ¶ 27. The court further reasoned that defendant controlled the beam, preserved it until its investigation was completed and authorized the destruction of the beam. Id. ¶ 24. Currently, defendants have appealed the decision in Martin to the Illinois Supreme Court, and Mr. Bruce and Ms. Conway will again be submitting a brief on behalf of the Illinois Trial Lawyers Association.
Why is spoliation important?
When evidence is destroyed, a potential litigant is severely deprived of the right to pursue or defend a cause of action. Spoliation is critical for those who have been prevented from litigating their case because important evidence was lost or destroyed by another. Without spoliation, an entity that is potentially at fault for an injury would be effectively encouraged to destroy evidence to relieve itself from liability. Spoliation encourages potential defendants and third parties to act responsibly and preserve evidence whenever it may be relevant to a potential civil action.
It is a fundamental part of our civil justice system that for every wrong, there should be a remedy. It is simply incompatible with this concept of ordered liberty that an injured party be deprived of a remedy. Where one party has deprived another of the evidence necessary to establish a fact in dispute, they have wronged that party, whether they are a plaintiff or a co-defendant. For that reason, it is important that Illinois courts recognize a cause of action for spoliation.
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