A house fire severely injured two individuals, Estella Wofford and Leo Seay. The fire was caused by longstanding electrical problems. The claims made by Wofford and Seay were hampered because the landlord’s insurance company, its investigators and the contractor it hired to remove the fire debris destroyed important evidence, including electrical wires, a fuse box and outlets.
Wofford and Seay filed a lawsuit against the landlord for negligence within two years. However, their spoliation claim was filed more than two years, but less than five years, after the fire and their injuries.
Based on the case of Schusse v. Pace, 334 Ill.App.3d 960 (2002), Wofford and Seay requested that the court apply the five-year deadline that is provided by Section 13-205 of the Illinois Code of Civil Procedure. But the presiding judge decided the case following Babich v. River Oaks Toyota, 377 Ill.App.3d 427 (2007) and dismissed the spoliation claim because it was not filed within the two-year deadline set by Section 13-202 of the Illinois Code of Civil Procedure.
The Second District of the Illinois Appellate Court concluded, “because spoliation is a derivative cause of action, the limitations period of the underlying negligence action, Section 13-202, applies.”
According to Justice Ann B. Jorgensen, the trial judge reached the correct result because Wofford and Seay failed to allege a valid claim for negligence spoliation.
In a 1995 Illinois Supreme Court case of Boyd v. Travelers Insurance Co., 166 Ill.2d 188 (1995), the Supreme Court declined to recognize spoliation of evidence as an independent tort. Instead, the court held that a spoliation claim can be stated under existing negligence principles.
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. Derdeen v. Kuehling, 213 Ill.2d 329 (2004).
In this case, the plaintiffs claimed in their spoliation count that, as a proximate result of the defendants’ destruction of evidence, they were prejudiced in that they “lost the opportunity to examine evidence from the fire scene to determine the cause, origin and spread of the fire in order to successfully to bring a personal-injury lawsuit.
The plaintiffs, Wofford and Seay, argued that the five-year limitations period in Section 13-205 of the code applies. They contended that, pursuant to Section 13-205, a claim of destruction of a plaintiff’s personal property (and those claims not specifically provided for) must be filed within five years, which they claimed they did. Here the plaintiffs argued that the spoliation action arose not from the personal injuries but from the destruction of the property.
The Illinois Appellate Court disagreed. It was noted again that negligence spoliation is not an independent cause of action. “It is a derivative action that arises out of other causes of action, including a negligence cause of action.” The court determined that because the case was a product-liability case and because spoliation is a derivative cause of action, “the same procedural and substantive rules that apply to this product’s action apply to this spoliation action.”
Therefore, the court reasoned that once the product-liability limitations period expired, the plaintiff could not proceed with a spoliation action, because it “has the same limitations period”; and, once the product-liability action expires, “there was no pending products liability action which the” evidence could be introduced. Once the primary action’s limitations period expired, the court concluded, the negligent-spoliation action “expired with it.”
The other important issue in the case that was discussed by the appeals panel was duty. Generally there is no duty to preserve evidence; however, a duty to preserve the evidence may arise through an agreement, a contract, a statute or another special circumstance. Moreover, a defendant may voluntarily assume a duty by affirmative conduct. In any of the foregoing instances, a defendant owes a duty of due 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.” Boyd, 166 Ill.2d at 195.
The court said there is a two-prong test for assessing whether there was a duty to preserve evidence: (1) first, a court must determine whether a duty arose by agreement, contract, statute, special circumstance or voluntary undertaking (relationship prong); and (2) if so, it must determine whether that duty extended to the evidence at issue – i.e., whether a reasonable person should have foreseen that the evidence was material to a potential civil action (foreseeability prong).
Where a plaintiff does not satisfy both prongs of the duty to preserve, there was no duty to preserve the evidence. In this case, it was concluded that the first prong was not met. Thus, the decision of the trial judge dismissing the spoliation count was affirmed pursuant to Section 2-615.
Wofford v. Tracy, 2015 IL App (2d) 141220 (Oct. 7, 2015).
Kreisman Law Offices has been handling car accidents, truck accidents and catastrophic injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Bolingbrook, Calumet City, Deerfield, Elmwood Park, Gurnee, Crystal Lake, Grayslake, Round Lake, Bensenville, Orland Park, Hanover Park and Highwood, Ill.
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