Negligent Spoliation of Evidence Claim Stated Against Insurer That Authorized Destruction Of Portion Of Sidewalk On Which Plaintiff Fell
January, 2004
In Dardeen v. Kuehling, 801 N.E.2d 960 (Ill. App.), an insurer’s authorization to its insured to make changes to a sidewalk without first recording the condition of the sidewalk by means of photographs or videotape gave rise to plaintiff’s claim for negligent spoliation of evidence.
Facts
Plaintiff, a newspaper carrier, was injured when he fell into a hole in a brick sidewalk while making his deliveries early in the morning. The plaintiff and his daughter, who was with him at the time of the fall, described the hole as twelve inches wide and four to six inches deep.
The sidewalk was located on the property of defendant Alice Kuehling (“Kuehling”). Plaintiff’s daughter notified Kuehling of her father’s fall and requested the name of Kuehling’s insurance company. Later that evening, the plaintiff, his daughter and son-in-law returned to the area of the fall to examine the sidewalk. At that time, plaintiff spoke to Kuehling.
Kuehling was insured by State Farm. On the day of the fall, Kuehling notified her insurance agent, Ronald Couch, of the fall. She told him that the bricks were “cocked up” and asked him if she could remove those bricks so that no one else would get hurt. Couch told her that she could and less than one week after plaintiff’s fall, Kuehling removed between twenty-five and fifty bricks. Neither Kuehling nor plaintiff took photographs or videotapes of the site.
When plaintiff returned to the site about one month later, he found that the bricks had been removed. Thereafter, plaintiff filed suit against Kuehling, alleging that Kuehling’s failure to repair the hole in the sidewalk and/or her failure to warn of the existence of the hole was the cause of his injury. In response, Kuehling denied the existence of the hole. Plaintiff thereafter amended his complaint to assert claims for negligent spoliation of evidence against Kuehling and State Farm. Plaintiff alleged that the sidewalk was material evidence and that State Farm had a duty to preserve the sidewalk when it became aware of plaintiff’s claim, and that it breached that duty when it authorized Kuehling to remove the bricks without first photographing or videotaping the sidewalk.
The trial court granted State Farm’s motion for summary judgment as to the negligent spoliation claim and plaintiff appealed. Plaintiff argued that there was evidence that State Farm should have foreseen that the sidewalk was material to a potential civil action and that its destruction would render plaintiff unable to prove his claim. State Farm countered by denying the existence of any duty to the plaintiff and asserting that even if such a duty existed, plaintiff could not prove an injury proximately caused by the breach.
Analysis
The appellate court reversed. Although it noted that there is, in general, no duty to preserve evidence, such a duty may arise through an agreement, a contract, or other special circumstances such as the assumption of a duty by affirmative conduct. The court noted that if such circumstances exist, the defendant owes a duty of care to preserve evidence “if a reasonable person in the defendant’s position should have foreseen that the evidence was material to a potential civil action.” The plaintiff must also allege facts which would support a claim that the loss or destruction of the evidence renders plaintiff unable to prove his claim in the underlying suit.
Citing to the Illinois Supreme Court’s decisions in Boyd v. Traveler’s Ins. Co., 166 Ill. 2d 188, 652 N.E.2d 267 (1995), which held that the insurance company assumed a duty to preserve evidence when it took possession of that evidence with knowledge that it would be relevant to potential litigation, and Shimanovsky v. GMC, 181 Ill. 2d 112, 692 N.E.2d 286 (1998), which noted that a court must be able to sanction a party for destruction of evidence prior to suit in order to prevent potential litigants from attempting to avoid liability by destroying evidence before a complaint is filed, the Dardeen court found that sufficient evidence existed to warrant imposition of a duty on State Farm to preserve the sidewalk where plaintiff fell. State Farm was aware of the accident and of the potential for litigation, yet it gave its insured permission to alter the condition of the sidewalk without first photographing or videotaping the area. As a result of State Farm’s authorization of its insured’s destruction of the sidewalk, the ability of both the plaintiff and Kuehling to use the evidence was impaired.
The court rejected State Farm’s argument that it never retained possession or control of the sidewalk and that plaintiff was attempting to broaden the scope of a spoliation of evidence claim to include a party who never had possession and control of the evidence. As the court noted, while State Farm did not have possession of the sidewalk, it did exercise control or had the opportunity to exercise such control. Moreover, the fact that pictures appear to have been taken by State Farm six days after the fall indicated that State Farm knew that litigation was likely and that the condition of the sidewalk was important. It therefore should have taken steps to preserve that evidence.
Finally, the court noted that the plaintiff’s ability to maintain a negligent spoliation claim was not contingent on plaintiff losing the underlying case. Rather, it is enough that the plaintiff allege sufficient facts to support a claim that the destruction of the evidence caused him to be unable to prove the underlying suit.
Learning Point:
Care must be taken to preserve evidence which is material to a potential lawsuit. Where the evidence is not portable and therefore not susceptible to being stored for later use and examination, it must be preserved by means of photographs or videotapes. Such preservation ensures that the plaintiff will be able to prosecute the suit and the defendant to defend the suit, free of claims of negligent spoliation. ¨
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