McKenna Law Update – December 2012

No Spoliation Claim Against Ageneral Contractor Whodestroyed an I-Beam

Under Illinois law, spoliation of evidence is a form of negligence. The Illinois Court first recognized spoliation of evidence as an independent tort in Boyd v. Travelers Insurance Co., 166 Ill.2d 188, 652 N.E.2d 267 (1995). A plaintiff claiming spoliation of evidence must prove that: (1) the defendant owed the plaintiff a duty to preserve the evidence; (2) the defendant breached that duty by losing or destroying the evidence; (3) the loss or destruction of the evidence was the proximate cause of the plaintiff’s inability to prove an underlying lawsuit; and (4) as a result, the plaintiff suffered actual damages.

The general rule in Illinois is that there is no duty to preserve evidence. In Boyd, the Supreme Court set forth a two-prong test which a plaintiff must meet in order to establish an exception to the general no-duty rule: a plaintiff must show that an agreement, contract, statute, special circumstance, or voluntary undertaking has given rise to a duty to preserve evidence on the part of the defendant and must show that the duty extends to the specific evidence at issue by demonstrating that a reasonable person in the defendant’s position should have foreseen that the evidence was material to a potential civil action.

Recently, the Illinois Supreme Court addressed the duty to preserve evidence in the situation of a work site accident where the general contractor destroyed potential evidence within twenty-four hours of the work site accident. In that case, the Supreme Court held that there was no duty to preserve the evidence. See Martin v. Keeley & Sons, Inc., 2012 IL 113,270, – – N.E.2d -, 2012 WL 4950881 (Ill.,2012).

In Martin, the plaintiffs were working on the reconstruction of a bridge. Plaintiffs were employed by the general contractor for the bridge reconstruction project. While plaintiffs were installing a handrail on the bridge, a concrete I- beam used to support the bridge deck upon which plaintiffs were standing collapsed, causing plaintiffs to fall into the creek, where they were injured. Immediately following the incident, the general contractor, the Illinois Department of Transportation (IDOT) and the Occupational Safety and Health Administration (OSHA) inspected the accident site. The next day, the general contractor destroyed the I-beam.

Plaintiffs filed suit against the general contractor, the manufacturer of the I- beam and the designer of the bearing assembly that supported the I-beam. Plaintiffs’ claims against the general contractor were spoliation of evidence. The Plaintiffs alleged that the general contractor owed a duty to retain the beam as evidence in potential litigation, that it breached its duty by destroying the beam, and that, as a direct and proximate result of the breach, plaintiffs were unable to prove their underlying claims against the other two defendants for alleged negligent design and manufacture of the I-beam, negligent design of the bearing assembly, and failure to warn of the defects. The remaining defendants also filed spoliation claims against the general contractor claiming that they could not adequately defend their actions.

The president for the general contractor testified that the I-beam could have been preserved by bringing in equipment to lift the beam and remove it from the site, or by using concrete saws to cut off the ends of the beam, but that he had several reasons for his decision to destroy the beam. First, he was informed that a replacement I-beam could be manufactured more quickly if they retrieved and sent the embeds to the manufacturer as soon as possible. Secondly, the construction engineer from IDOT advised that the beam needed to be removed from the creek to prevent erosion caused by water washing up around the abutment. Finally, he felt that the company had satisfied all of its obligations to IDOT and OSHA, that they had identified the cause of the accident as the beam falling, and that “it was just kind of a move-on-from-there situation.” He testified that he knew workers had been sent to the hospital and assumed there would be workers’ compensation claims, but that a lawsuit did not enter his mind. He also testified that he did not receive any requests to preserve the beam from plaintiffs or other parties.

The Illinois Supreme Court determined that even though there was sufficient evidence that the general contactor was aware of the accident, knew that the I- beam was directly involved in injuring the Plaintiffs and had the opportunity and ability to preserve the I-beam, there was no duty on the part of general contractor to preserve the I-beam. The Supreme Court addressed the various theories for imposing a duty.

First, the general contractor did not voluntarily undertake a duty to preserve evidence. A voluntary undertaking requires a showing of affirmative conduct by the defendant evidencing defendant’s intent to voluntarily assume a duty to preserve evidence. There was no evidence in the record that the general contractor voluntarily undertook to preserve the I-beam for the purpose of potential future litigation.

Second, the general contractor’s possession and control of the I-beam was not a special circumstance justifying imposition of such a duty. The Supreme Court noted that while the Illinois courts have not specifically defined “special circumstances” that justify a duty to preserve, possession and control are never sufficient without more. In those cases where a special circumstance was found, there has been a request that the item be preserved for litigation.

Third, the general contractor’s status as the injured workers’ employer did not create a special circumstance justifying imposition of such a duty. No Illinois case has held that an employer- employee relationship is sufficient to establish a duty to preserve evidence, and the Illinois Supreme Court expressly declined to find that the status as plaintiffs’ employer establishes a duty to preserve evidence. Fourth, the general contractor’s status as a potential litigant was not a special circumstance justifying imposition of such a duty. The test in Boyd still had to be satisfied. Accordingly, the Supreme Court upheld the granting of summary judgment in favor of the general contractor on the spoliation claims. The Supreme Court did not address the “foreseeability” prong of the Boyd test, because plaintiffs had not established that a duty to preserve evidence arose under the “relationship” prong of the test. In the absence of a duty, plaintiffs’ and co- defendants’ spoliation of evidence claims could not stand.

The Martin decision raises concerns for both plaintiffs and defendants in construction litigation. In the Martin case, the I-beam was destroyed within twenty-four hours of the accident, while one of the injured employees was still in the hospital recovering from the injuries claimed in the case. The Martin decision fails to address the practicality of preserving evidence that will potentially impact not only the plaintiff’s ability to prove his or her case, but also the various defendants and third-party defendants that may have defenses based on product defects.

For more information contact Kristin Tauras at 312-558-3923 or ktauras@104.236.6.34. 

 

One Notice Gives Appellate Jurisdiction to All

The First District Appellate Court handed down a very instructive decision in Dowe v. Birmingham Steel Corp., 2011 IL App (1st) 091997. The Dowe matter arose out of a collision between a semi tractor-trailer and a passenger train at a railroad crossing. The crash resulted in multiple fatalities and injuries. Birmingham Steel was named as a defendant as they loaded the steel onto the truck that was part of the accident. Thirty-two plaintiffs filed suit. The separate suits were consolidated in the circuit court for purposes of conducting discovery and motion practice.

Birmingham Steel filed a motion for summary judgment against the plaintiffs arguing that the truck driver was not their agent at the time of the accident and that plaintiffs had failed to establish a claim for negligent entrustment. The circuit court granted Birmingham Steel’s motion against all 32 plaintiffs. Thereafter, plaintiff Dowe timely filed a Notice of Appeal on behalf of herself and the 31 other plaintiffs.

Birmingham Steel argued that the notice filed by Dowe was only sufficient to confer appellate jurisdiction over Dowe and not the other plaintiffs. They further argued that each of the 32 separate lawsuits retained their separate identity and that the consolidation for discovery and motion practice did not change their separate identity. Birmingham Steel maintained that separate notices of appeal were required for each lawsuit.

The First District Court of Appeals instructed that there are three different forms of consolidation in Illinois: (1) where several cases are pending involving substantially the same subject matter, the court may stay the proceedings in all but one and then see whether the disposition of the one case may settle the others; (2) where several cases involve the same event, the cases may be tried together but with separate verdicts and judgments, the consolidation being limited to joint trial; and (3) where several actions are pending that might have been brought as a single action, the cases may be merged into one action, thereby losing their individual identities and be disposed of in one suit.