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Preservation of Evidence

By Jo T. Wetherill

How do you know when a loss notice arising out of the use of a product or condition of a premises comes across your desk, whether it is necessary to preserve the product or the condition of the premises? Spoliation of evidence claims have become more prevalent over the last 15 years. Although the guidance provided by the courts purports to provide a two-prong, bright line analysis, litigants continue to create new arguments that gray the parameters of the guidelines.

The seminal case on spoliation of evidence claims is Boyd v. Travelers Insurance Company, 652 N.E.2d 267 (1995). In that case, the court noted that the general rule with regard to preservation of evidence is that a party has no duty to preserve evidence. However, a duty may arise if there is an agreement or contract between the parties imposing the duty, if the duty is imposed by statute, or if some other special circumstance warrants it. Boyd, 652 N.E.2d at 270 to 271. A duty to preserve evidence may also arise where a party voluntarily assumes the duty by some type of conduct. Boyd, 652 N.E.2d at 271. If any of these circumstances exist, there is a duty to preserve evidence if a reasonable person in that party’s position would have foreseen that the evidence would be material to a potential lawsuit. Boyd, 652 N.E.2d at 271.

In 2004, the Illinois Supreme Court clarified the Boyd decision in Dardeen v. Kuehling, 821 N.E.2d 227 (2004). There the court outlined a two-prong test: (1) the court must first determine whether a duty to preserve the evidence arose by agreement, contract, statute, special circumstance, or voluntary undertaking; and (2) if so, the court must determine whether that duty extends to the evidence at issue – i.e., whether a reasonable person should have foreseen that the evidence was material to potential civil litigation. Dardeen, 821 N.E.2d at 231. The Dardeen court noted that if the plaintiff does not satisfy both prongs, there is no duty to preserve the evidence at issue. Id. Ultimately, the Dardeen court found that the defendant’s insurance contract could not be read to impose a contractual duty to preserve evidence for the plaintiff’s benefit because the plaintiff was not a party to that contract. 821 N.E.2d at 331 to 332. Thus, a contract between the insurance company and the insured itself is not enough to create the duty to preserve the evidence.

The relationship between the insurance carrier and the insured was further examined in the matter of Jones v. O’Brien Tire & Battery Service Center, Inc., 871 N.E.2d 98 (5th Dist. 2007). In that case, the defendant, O’Brien Tire & Battery Service Center filed a Third Party Complaint against Country Mutual Insurance Company and their insured alleging negligent spoliation of evidence. The case arose out of a wrongful death action that was brought against the tire installation business after a left rear wheel assembly came off the insured vehicle and caused an accident. Following the accident, Country Mutual Insurance Company had instructed the insured to preserve the wheels, and had further written the insured a letter indicating that the wheels would be crucial for their case and she must retain them. Eventually, Country Mutual Insurance Company settled their claim with Jones before Jones filed suit against O’Brien Tire & Battery Service Center. After their claim was resolved, they informed the insured that the case had been resolved, without providing further instruction to their insured to either maintain or dispose of the wheels at issue. The Fifth District found that the evidence was sufficient to establish that Country Mutual Insurance Company had a duty to preserve the left wheel assembly, and that the other elements of a negligent spoliation claim had been met. They made this finding on the basis of a voluntary undertaking.

Ultimately, as the case law develops, it has become apparent that although the general rule is there is no duty to preserve evidence, specific conduct may create a duty. This analysis applies regardless of whether you are dealing with a specific product or the condition of a premises. Certainly, the Illinois courts recognize that a mere opportunity to exercise control over the evidence is not sufficient to create a duty, and Illinois public policy encourages improvements to enhance public safety. Dardeen, 821 N.E.2d at 233. However, the safest course of conduct would be to notify potential claimants of your intent to repair or dispose of the property or the premises prior to doing the same in those cases where you would deem it necessary to have any type of expert evaluate the product or premises in order to process your claim.


Originally published in the Fall 2009 edition of Quinn Quarterly.

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