Adams v. Bath & Body Works: The Newest Roadmap for Illinois Spoliation Remedies
by W. Gregory Aimonette and
In Illinois, there is no general duty to preserve evidence. Boyd v. Travelers Ins. Co., 166 Ill. 2d 188 (1995). However, the preservation of an allegedly defective product is important both to the proof of a claim and to defend against liability. Prior to filing a lawsuit, a potential litigant owes a duty to take reasonable measures to preserve the integrity of relevant and material evidence. Shimanovsky v. General Motors Corp., 181 Ill. 2d 112 (1998).
Pre-suit spoliation of evidence claims can be raised one of two ways. First, the claim may be raised under a negligence theory where a duty to preserve the evidence has been created by an agreement, a contract or a statute. Boyd v. Travelers Ins. Co., 652 N.E.2d 267, 270 (Ill. 1995). To prove the tort of spoliation of evidence under this theory a plaintiff must plead the existence of a duty, a breach of that duty, an injury caused by the breach, and damages. Id.
Second, claims may be brought as a discovery sanction. Rule 219(c) of the Illinois Supreme Court Rules provides sanctions for failure to preserve crucial evidence. ILL. S. CT. R. 219(c) (West 2004). The offending party's conduct must be deliberate or contumacious, or evidence an unwarranted disregard of the court's authority. Shimanovsky v. General Motors Corp., 692 N.E.2d 286, 289 (Ill. 1998). The question in most Rule 219(c) cases is whether destruction of evidence is sanctionable. Shimanovsky, 692 N.E.2d at 291.
The decisions of Boyd and Shimanovsky sent mixed signals to Illinois trial lawyers. On one hand, Boyd held there was no general duty to preserve evidence, while Shimanovsky held that a potential litigant owes a duty to take reasonable measures to preserve the integrity of relevant, material evidence.
In December of 2004, the Illinois Supreme Court provided clear guidelines for bringing a spoliation of evidence suit. Dardeen v. Kuehling, 821 N.E.2d 227 (Ill. 2004). As a threshold matter, the Dardeen court made plain that there is no discrepancy between Boyd and Shimanovsky, which provide very different remedies.
If one wishes to bring a claim under traditional negligence law, the claimant must meet the two prong test established in Boyd. Dardeen, 821 N.E.2d at 231. If the plaintiff does not satisfy both prongs, there can be no duty on the part of the defendant to preserve the evidence at issue. Id.
Dardeen makes clear that a duty to preserve evidence under Shimanovsky is inapposite to a claim brought under Boyd. Id. at 233. The court's discretion in issuing a discovery sanction for pre-suit destruction of evidence must be coupled with a deliberate attempt to destroy relevant evidence or unwarranted disregard of a court's authority. Id. See also, Shimanovsky, 692 N.E.2d at 289.
The Illinois Appellate Court, First District recently applied the Dardeen reasoning in Adams v. Bath & Body Works, Inc., 2005 WL 1252266 (Ill. App. May 26, 2005). In Adams, a husband sued a retailer and a candle manufacturer seeking damages from a fire that occurred in his home resulting in the death of his wife. The plaintiff alleged that a candle, sold by the retailer and made by the manufacturer, was the cause of the fire.
Initially, based on information learned from government fire investigators, plaintiff's counsel believed that the origin of the fire was an electric lamp, which he retained. Later, plaintiff's private fire investigator alternatively opined that the fire was caused by a candle located on a table in the living room. In the meantime, the landlord hired a fire restoration company to clean up the debris and repair the damage. Unbeknownst to the plaintiff, the end table, a couch, and carpeting were removed and destroyed. Because these items had been destroyed, there was no physical evidence that would either support or refute the plaintiff's statement as to the candle's location.
The defendant retailer who sold the candle moved to dismiss plaintiff's complaint as a sanction under Rule 219(c) for his failure to preserve either the table, couch or carpet. The circuit court granted defendant's motion and dismissed the complaint.
In its order, the trial court gave two separate grounds for dismissing the complaint. First, it ruled the plaintiff and his counsel had the opportunity and the responsibility to preserve relevant evidence but failed to do so, and framed their theory of the case only after allowing relevant evidence over which they had control to be destroyed, and second, that plaintiff had offered no competent expert witness opinion testimony to present at trial with respect to cause and origin. Id.
On appeal, plaintiff argued that the circuit court erred in dismissing his claims because he neither knew that the table was relevant evidence (having pinned his hopes on the lamp that he removed shortly after the fire) nor was responsible for its destruction.
Defendants countered that because the plaintiff should have known that the table, couch, and carpet might be relevant to determining the cause of, and, therefore, liability for the fire, he breached his duty under Boyd and Shimanovsky to preserve that evidence. Id.
Citing Dardeen, the appellate court reversed. The Adams court noted that when key evidence is destroyed before a product liability suit is filed, it is clear that defendants have two separate and distinct remedies: a motion for sanctions under Illinois Supreme Court Rule 219(c) or a negligence claim for spoliation of evidence.
The Adams court reasoned that because defendants chose to assert Rule 219(c), any reliance upon Boyd or its progeny to support the circuit court's sanction was inappropriate. Moreover, the appellate court rejected defendants' reliance upon cases which had found that negligent or inadvertent destruction or alteration of evidence may result in a harsh sanction, including dismissal, when a party is disadvantaged by the loss. The court reasoned here that it is only where a party's conduct can be characterized as “deliberate, contumacious or an unwarranted disregard of the court's authority” that the drastic sanction of dismissal is justified, and, even then, only “as a last resort and after all the court's other enforcement powers have failed to advance the litigation.”
The court further noted that for those instances where evidence is destroyed due to mere negligence, a prejudiced litigant can seek redress by bringing a claim for negligent spoliation of evidence against the responsible party. Under Rule 219(c), the question is whether a party's conduct is sanctionable. The court further noted, however, that even where evidence is destroyed, altered, or lost, a defendant is not automatically entitled to a specific sanction. Rather, Rule 219(c) grants the circuit court discretion to impose a sanction, including dismissal of the cause of action, upon any party who unreasonably refuses to comply with any discovery rule or any order entered pursuant to such rule.
As a result of the First District Appellate Court's further elaboration of the Dardeen ruling through Adams, we have been provided with a clear distinction between the two recognized remedies for spoliation in Illinois. They are the tort of negligent spoliation of evidence, supported by the Boyd line of cases, and the statutory court sanction pursuant to Rule 219(c), supported by the Shimanovsky line of cases. These two remedies, though not mutually exclusive, are supported by two very separate and distinct lines of case law with different requirements. Adams presents the reader with an instructive roadmap which should provide a better ability to defend against, or to file for, the proper remedy based on the facts presented. •