Wofford v. Tracy
48 N.E.3d 1109
Ill. App. Ct.2015Background
- On October 9, 2010 a fire at a rental house injured tenants Estella Wofford and Leo Seay; plaintiffs sued the owner (Tracy) and, post-fire, the owner’s insurer Rockford Mutual, Rockford’s retained investigator (TDE and employee Erickson), and a remediation contractor (Service Construction Co., SCCI).
- Plaintiffs alleged post-fire misconduct: negligent and intentional spoliation of evidence, conversion, conspiracy, and res ipsa loquitur (18-count amended complaints). Underlying negligence claims sought personal-injury damages only.
- Lower court entered preservation orders early in the case, but defendants investigated and the house was ultimately demolished; plaintiffs filed spoliation claims in 2013 (more than two years after the 2010 fire).
- Defendants moved to dismiss: Rockford invoked the two-year personal-injury limitations period (735 ILCS 5/13-202) under section 2-619(a)(5); other defendants moved under section 2-615 for failure to state claims. Trial court dismissed spoliation and res ipsa counts with prejudice as time-barred and dismissed conversion and conspiracy counts under 2-615.
- Plaintiffs appealed. The appellate court (Jorgensen) affirmed: (1) spoliation claims are derivative of the underlying negligence claim and thus governed by the limitations period applicable to that underlying claim (two years for personal injury here); (2) alternatively, the spoliation counts failed to state a claim because plaintiffs did not adequately plead a duty to preserve evidence; and (3) the court lacked jurisdiction to review dismissal of the conversion and conspiracy counts because those dismissals were not included in the trial court’s Rule 304(a) certification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether negligent-spoliation claims are governed by a five-year property-damage statute or the two-year personal-injury statute | Spoliation seeks damages for destruction of property/evidence so §13-205 (five years) applies | Spoliation is derivative of the underlying negligence/personal-injury claim, so §13-202 (two years) applies | Held: Two-year personal-injury statute applies; spoliation claims time-barred |
| Whether plaintiffs sufficiently pleaded a duty to preserve evidence (special circumstances/voluntary undertaking) | Plaintiffs alleged preservation orders, defendants controlled scene, defendants investigated and segregated the property, and plaintiffs had complained about prior electrical problems | Defendants argued plaintiffs pleaded only passive control/inspection and failed to plead an agreement, request, segregation for plaintiff’s benefit, or affirmative conduct to preserve specific evidence | Held: Pleadings insufficient—no agreement/contract, no special circumstance (no specific request or segregation for plaintiffs’ benefit), no voluntary undertaking; dismissal alternative affirmed |
| Whether intentional-spoliation is a viable independent tort | Plaintiffs attempted to plead intentional spoliation as separate tort | Defendants argued Illinois has not recognized an independent intentional-spoliation tort; relief (if any) is via negligence or discovery sanctions | Held: Illinois has not adopted a separate intentional-spoliation tort; plaintiffs cannot pursue one here; sanctions available via procedural rules if appropriate |
| Whether appellate court could review dismissal of conversion and conspiracy counts | Plaintiffs sought review of all dismissals | Defendants argued Rule 304(a) certification covered only the spoliation dismissals; counts not so certified are not appealable final orders | Held: Court lacked jurisdiction to review dismissal of conversion and conspiracy counts because trial court’s Rule 304(a) finding did not include those counts |
Key Cases Cited
- Boyd v. Travelers Insurance Co., 166 Ill. 2d 188 (Ill. 1995) (spoliation is not an independent tort; duty to preserve arises only in limited circumstances)
- Dardeen v. Kuehling, 213 Ill. 2d 329 (Ill. 2004) (elements of negligent spoliation and limits on contract-based duties to nonparties)
- Babich v. River Oaks Toyota, 377 Ill. App. 3d 425 (Ill. App. Ct. 2007) (negligent-spoliation claim is derivative and may be barred when the underlying claim’s limitations period has run)
- Schusse v. Pace Suburban Bus Division of the Regional Transportation Authority, 334 Ill. App. 3d 960 (Ill. App. Ct. 2002) (limitation accrual and discussion of section 13-205 applicability to spoliation claims)
- Cammon v. West Suburban Hospital Medical Center, 301 Ill. App. 3d 939 (Ill. App. Ct. 1998) (spoliation damages arise from destruction of evidence; statute of limitations analysis)
- Brucker v. Mercola, 227 Ill. 2d 502 (Ill. 2007) (clarifies when patient-care statutes apply and distinguishes spoliation damages)
- Jones v. O'Brien Tire & Battery Service Center, 374 Ill. App. 3d 918 (Ill. App. Ct. 2007) (insurer’s affirmative instruction to preserve evidence can create a voluntary undertaking to preserve for others)