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ILLINOIS LAW UPDATE
The Illinois Second District Appellate Court recently released an opinion which provides further insight into the duty element of a spoliation cause of action under Illinois law. Combs_v_Schmidt_2015_IL_App_2d_131053.pdf (42 KB). The plaintiff in this case alleged that the defendant destroyed a defective I-beam which was the cause of the injuries at issue. The defendant moved for summary judgment arguing that no duty was owed to preserve the evidence. The plaintiff had appealed in this case once before, i.e. Combs v. Schmidt, 2012 IL App (2d) 110517, on the question of whether ‘special circumstances’ exist to satisfy the relationship prong of a duty to preserve evidence. The court had ruled in plaintiff’s favor and sent the matter back to the trial court for further proceedings. However, while that appeal was being decided, the Illinois Supreme Court released its opinion in the Martin v. Keeley & Sons, Inc., 2012 IL 113270 case addressing the same issue, and ultimately calling for a different result in the Combs case. On this second appeal of the spoliation issue, the Appellate Second District Court acknowledged the Supreme Court’s decision in Martin and followed the law set forth therein.
In this second appeal, the plaintiff argued that he complained about the defective evidence as the cause of his injuries to the defendant, who had possession and control of the I-beam and had destroyed it within 3 days of the incident at issue. Plaintiff argued that defendant breached a duty to preserve that evidence relying on the ‘special circumstances’ prong of the duty analysis, i.e. that his complaints constituted a ‘special circumstance’ which put the defendant on notice that he would be filing a complaint and that the evidence should be preserved for such litigation.
The Appellate Court first acknowledged that there is no general duty to preserve evidence. Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 195 (1995). To establish a duty to preserve evidence, a plaintiff must satisfy a two-prong test. First, under the relationship prong, the plaintiff must show that there is some “agreement, contract, statute, special circumstance, or voluntary undertaking” sufficient to justify the imposition of a duty to preserve the evidence. Dardeen v. Kuehling, 213 Ill. 2d 329, 336 (2004). Second, under the foreseeability prong, the plaintiff must show that a reasonable person would have foreseen that the evidence was relevant to a “potential civil action.” Id.
The Appellate Court then looked at the Illinois Supreme Court’s decision in the Martin case and held that complaints about the evidence are not the functional equivalent of a request to preserve evidence and a plaintiff’s opportunity to inspect is not a factor to consider in assessing the relationship prong of the duty analysis in a spoliation case. The court also held that, while putting a defendant on notice to preserve the evidence may be accomplished with a direct request to do so or other similar language that may put defendant on notice, a mere complaint about the evidence will never suffice to put the defendant on notice, not even when the defendant has possession and control of the evidence.