Preserving evidence

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.

In Illinois, the general rule is that there is no duty to preserve evidence. Boyd v Travelers Ins. Co., 166 Ill.2d 188 (1995). Boyd outlined the following two-prong test to establish an exception to the no-duty rule:

a)      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.

b)      A plaintiff must also 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. (Id. at 195)

The case of Martin v. Keeley & Sons, Inc., 2012 IL 113270 (October 18, 2012) recently discussed the preservation test. The case concerned an incident where several of Keeley’s employees were involved in an incident when an I-beam they were standing on while working, collapsed causing the workers to fall into the creek below. After the incident, an engineer for Illinois Department of Transportation (IDOT) and a representative from Occupational Safety and Health Administration (OSHA) inspected the site. The day after, Mr. Keeley asked his staff to destroy the beam. Keeley later testified that he ordered the beam to be destroyed as he believed a replacement could be manufactured more quickly if the manufacturers had the steel embeds. He was led to believe that the beam needed to be removed to prevent ‘scouring’ and he believed that the company had fulfilled its obligations to IDOT and OSHA.

The present case arises out of a suit filed against Keeley by those injured, alleging that Keeley owed a duty to preserve the beam as evidence in potential litigation and because the evidence was destroyed, they were unable to prove their underlying claims against the manufacturers and designers of the beam. The manufacturers and designers filed cross claims alleging that the destruction of the beam prejudiced their ability to defend the claims being made against them. The circuit court found that Keeley had no duty to preserve the beam. This decision was reversed on appeal. 958 N.E.2d 739 (2011). The case was subsequently appealed to the Illinois Supreme Court.

The majority found that the plaintiffs failed to demonstrate any affirmative conduct by Keeley showing its intent to voluntarily undertake a duty to preserve towards the plaintiffs. On the issue of voluntary undertaking, the Supreme Court stated that a voluntary undertaking requires some affirmative acknowledgement or recognition of the duty by the party who undertakes the duty. The factors that the Supreme Court assessed in coming to this conclusion were that Keeley did not acknowledge the significance of the beam as evidence in potential future litigation, he did not move the beam from its position in the creek nor did he relocate the beam to a position where it would be protected from loss or destruction.

Plaintiffs also argued that Keeley owed a duty to preserve due “special circumstances.” The Supreme Court dismissed this on the basis that something more than possession and control are required, such as a request by the plaintiff to preserve the evidence and/or the defendant’s segregation of the evidence for the plaintiff’s benefit.

Chief Justice Thomas Kilbride dissented, stating the record showed far more than Keeley’s mere possession and control. The dissent argued that the majority only addressed the relationship prong of the Boyd test and fails to address the foreseeability test.

Perhaps the dissent gives future plaintiffs sufficient scope for a decision on this matter to be challenged again in the future.

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