Court weighs ‘voluntary undertaking’ exception

Marty Dolan, principal at Dolan Law, and his associate Karen Munoz represent victims of wrongful death and personal injury. His column “Law and Wellness” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.

The case of Martin v. Keeley, 2011 IL App (5th) 100117, concerning the scope and application of the “voluntary undertaking” exception to the general rule in Illinois that a party has no duty to preserve evidence in anticipation of litigation, was argued before the Illinois Supreme Court recently. The case arises from an appeal of a decision of a majority of the Fifth District of the Illinois Appellate Court which, despite a zealous dissent from Judge Stephen L. Spomer, held that the voluntary undertaking exception did apply in the case.

The general rule in Illinois is that there is no duty to preserve evidence. However, exceptions apply where a duty to preserve may arise by contractual agreement or statute, for example. Another exception is where a party voluntarily assumes the duty by affirmative conduct. The extent of the voluntary undertaking exception was seemingly widened by the Appellate Court, in Jones v. O‘Brien Tire and Battery Serv. Ctr., Inc., 871 N.E.2d 98, 115 (Ill. App. Ct. 2007).

In Jones, the court found the insurer of a truck driver who was involved in an accident had assumed a duty to preserve the tires of the truck. The tires, whose negligent installation had been the cause of the accident according to the insurer’s accident reconstructionist, were lost by the repair shop after the driver left in the truck to be repaired. The court found the insurer had assumed the duty when it instructed the driver, by letter, to keep the wheels in a safe place. Therefore, in a case brought by the installer of the tires for spoliation of evidence, the insurance company was held to have acted negligently.

In Keeley, three construction workers feel from scaffolding, which was supported by an I-beam.  After the accident, the Illinois Department of Transportation (IDOT) and the Occupational Safety Hazard Administration inspected the beam (as did the general contractor) and concluded that it was not defective. The general contractor then broke up the beam in order to salvage the metal plates inside it so that a replacement could be manufactured swiftly. However, the three construction workers who were injured in the accident then sued the designer and manufacturer of the beam alleging it was defective, as well as the general contractor, alleging spoliation of evidence.

The Appellate Court for the Fifth District held that the general contractor had voluntarily undertaken a duty to preserve the beam. This was because it owned and controlled the beam, preserved it for long enough to allow IDOT and OSHA to inspect, and personally inspected it before destroying it.

I think this interpretation of the voluntary undertaking exception is the correct one and should be followed by the Supreme Court. To hold otherwise would be to create perverse incentives for potential defendants. Such a holding would permit a potential defendant to undertake to preserve a particular piece of evidence long enough to conduct an inspection, and then destroy it immediately afterwards if, for example, the results of the inspection appeared to be unfavorable. Although no general duty exists to preserve evidence in Illinois, when a party does make an affirmative act of preserving evidence, which could foreseeably be material to a potential civil action, a duty should attach.

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