*1 (No. 75466. al.,
TOMMIE et BOYD v. Appellants, TRAVELERS al., INSURANCE COMPANY Appellees. et 19, Opinion January rehearing denial on filed 1995.—Modified June 1995. *2 HEIPLE, J., HARRISON, joined by J., dissenting. Ltd., Steven B. Levy, Naperville, of Jo Mary (David Kelly, of Novoselsky Wheaton A. and Linda A. Bryceland, Chicago, counsel), of of appellants. for
John H. Caley, Roddy, Guill and Michelle J. of Power, Guill, Gifford, Ltd., Zima Leahy, & Chicago, of appellee Travelers Insurance Co.
CHIEF JUSTICE BILANDIC delivered the opinion of court:
The question presented in appeal whether the trial court properly dismissed two counts of complaint Plaintiffs, for failure to state a cause action. Tommie Boyd, and Fannie filed five-count complaint against defendants, circuit court Cook County (Travelers) Insurance Company and the (Coleman). Coleman Company, Inc. Counts I and II complaint allege negligent willful and wanton *3 against spoliation of evidence Travelers. Counts III and allege products liability negligence IV and claims against Coleman. Count V a loss of contains consortium claim. negligent Travelers filed motion to dismiss the counts, and spoliation willful and wanton which the granted pursuant trial court to section 2—615 of the (735 (West 1992)). Code of Civil Procedure ILCS 5/2 —615 The court found were premature actions alleged because actual injury not be until the underlying lost suit Coleman. (134
Pursuant to Court Supreme Rule Ill. 2d R. 308), following the trial question court certified the for interlocutory appeal: spoliation
"Whether a in a of evidence case plead prove must and that he lost the civil significant plead he case, sufficient that whether it is underlying suit.” ability to impairment his leave application court denied appellate ap for leave to petition granted plaintiffs’ appeal. We R. court. 145 Ill. 2d 315. to this peal
FACTS 4,1990, Boyd (Boyd) was work- February Tommie On belonging employer, Superior ing a van his inside warm, Boyd using a propane was keep Foods. To van heater, designed, had manufac- catalytic which oc- tured, explosion Coleman. An and distributed gas escaping from curred, allegedly by propane injuries and Boyd personal the heater. sustained serious damages. Boyd’s personal prop- heater was other erty. compensation filed claim for workers’ benefits
Boyd Travelers, his employer’s his and employer 6, 1990, a February insurer. On compensation workers’ (Chi), and Tu Chi another adjuster, Travelers Engelke, Boyd visited the employee, Travelers John They of the Coleman possession residence. took Fannie, wife, that Travelers needed telling Boyd’s investigate in order to her husband’s workers’ heater compensation They also Fannie that Travel- claim. told inspect ers and test the heater to determine would explosion. cause of the transported
Chi the heater a Travelers office Boyd asked Subsequently, it in a closet. when stored him, Travelers was un- heater returned 1991, Boyd sought a September able it. On to locate the heater. compelling court Travelers to return order response employees its took Travelers’ admitted closet, placed it in a from possession of heater later had never tested disappeared. which it the heater. *4 complaint, plaintiffs I II of their
In counts and charge injured they by Travelers’ loss of expert testify the heater because no with certainty as to whether the heater or dangerously was defective Therefore, designed. allege, they loss Travelers’ of irrevocably heater has prejudiced adversely and affected against their products liability action Coleman. Travelers’ motion to I dismiss counts and II con- negligent spoliation tended and intentional evi- recognized are dence not under torts Illinois law. In the alternative, claimed that, if Travelers even Illinois was recognize action, either cause of plaintiffs’ claims were premature because the li- underlying products action ability pending. Coleman was still Travel- argued that, ers until plaintiffs underlying lose the ac- tion, they have suffered actual is a injury, no which necessary Therefore, element cause of action. concluded, must first lose the missing suit in which the evidence would have been used. granted
The trial court Travelers’ motion I dismissed and II trial counts without prejudice. spoliation court stated would be recognized given right However, in Illinois it facts. agreed with Travelers were claims premature they unless until lost the against Coleman, suit thereby sustaining an actual injury. Accordingly, gave plaintiffs the trial court leave following to refile I and II their counts the resolution of products liability Coleman.
ANALYSIS as question certified the trial court assumes recognize "spoliation that Illinois courts of evidence” as independent contrary, cause of action. On the court, majority consistent with a has jurisdictions,
193 follow, hold today we done For reasons never so.1 stated can be negligent spoliation an action for existing negligence law. under a certi involving accepts appeal When this court and make any judgment may we “enter question, fied made, and given or ought to any order that grant relief any and make and further orders other *** 366(a)(5).) (134 Ill. 2d require.” R. the case for II, to state claims purport I which Counts and recognized negligent and California have 1 Courtsin Florida independent tort. Insur spoliation of as an Continental (Fla. (stating 1990), 313, App. 2d 315 v. 576 So. ance Co. Herman (2) (1) action, potential a the elements as existence of civil legal duty preserve relevant to evidence which is contractual (4) (3) evidence, action, potential of that civil destruction (5) lawsuit, significant ability prove impairment relationship and the in causal between evidence destruction (6) lawsuit, ability damages); v. Allstate and Miller (Fla. 24; App. 1990), So. 2d Velasco v. Com Insurance Co. 573 (1985), 874, Building App. 169 3d mercial Maintenance Co. Cal. Rptr. 215 Cal. 504. Alaska, Ohio, recognized
Courts in
and California have
spoliation of
a new
v.
intentional
evidence as
tort. Hazen
(Alaska 1986),
456;
Municipality Anchorage
718 P.2d
Smith v.
of
(1993),
28,
1037;
67
3d
N.E.2d
Howard Johnson Co.
Ohio St.
615
491,
Superior
(1984),
App.
Cal.
v.
151 Cal.
198
Smith
Court
(1989).
829;
Annot.,
Rptr.
see
70
984
also
A.L.R.4th
jurisdictions
recog-
Courts in several other
have declined
usually
on
spoliation,
nize a
of
based
the facts of
new tort
(1986),
(See,
given
e.g.,
Superior
Raia
Court
150 Ariz.
case.
La
v.
(Ind.
1991),
118,
286;
App.
Murphy
Target
722
v.
Products
P.2d
(1987),
687;
Perforators,
241
Koplin
580 N.E.2d
v. Rosel Well
Inc.
206,
1177;
Corp.
Iron Wood Products
Kan.
734 P.2d
Panich v.
795;
(1989),
136,
App.
445
In-
179
N.W.2d
Federated Mutual
Mich.
(Minn. 1990),
Components,
surance Co. v.
Precision
Inc.
Litchfield
434.)
recognition
parties desiring
456 N.W.2d
Courts often direct
other,
ac-
spoliation
tort
traditional causes of
of new
towards
Co.,
See, e.g.,
456
tions and remedies.
Mutual Insurance
Federated
437-38; Raia,
121-23,
at 289-
at
La
negligent spoliation evidence, willful wanton were dismissed under section 2—615 failure to state question presented by a cause of action. The a section plaintiff 2—615 motion to is al dismiss whether the has leged complaint proved, which, sufficient facts in the if (Urbaitis would entitle to relief. v. Com 475.) (1991), 458, monwealth Edison Ill. 2d All well- pleaded complaint facts are taken as true. A mo tion to dismiss should denied where a cause of action stated, if even it is not the cause action intended plaintiff. (1994), City Doe v. Calumet 161 Ill. 2d 388. plaintiffs’ complaint alleges
Here, count I of *6 Boyd personal injuries sustained serious and other dam- ages exploded. wife, when the Coleman heater His Fan- relinquished employ- nie, heater the to two Travelers employees they ees. The told her that the needed heater investigate Boyd’s compensation claim, to workers’ and they inspect would the to test heater determine explosion. initially placed what caused The closet, ain later not be found. Plaintiffs’ com- plaint charges that Travelers’ loss of the heater has impaired ability products liability their to legal Coleman. The effect of these factual allegations to a state cause of action Travel- negligence. for ers long
Courts have afforded redress for the destruction opinion, and, of evidence adequately in our traditional remedies problem presented address the in this case. negligent spoliation An action for can be stated under existing negligence creating a law without new tort. (See, (E.D. e.g., Liberty Pirocchi v. Mutual Insurance Co. 1973), (involving Supp. 277, Pa. 365 F. a 281-82 factual virtually present scenario identical to the facts of case).) negligence, To state a cause of a plead duty by must the existence a owed
195 duty, plaintiff, an of that a breach to the defendant damages. injury proximately breach, (1988), Hospital Memorial v. Condell Estate Johnson (1974), Ill. 2d 503; 496, Cunis v. Brennan 119 Ill. 2d 372, 374. duty preserve general to is that is no
The rule there duty preserve however, evidence; a evidence (see agreement, through contract, a a statute arise 302) (1992), Mary’s Hospital Rodgers Ill. 2d v. St. special Moreover, a defendant circumstance. another duty by may voluntarily a conduct. assume affirmative (See (1964), Corp. Rope 31 Ill. 2d Nelson v. Union Wire 74.) foregoing instances, In a defendant duty preserve a reason care to evidence if owes of due position person should able defendant’s potential material to a foreseen that the evidence was civil action. complaint properly case,
In this count I of duty. alleges pleads duty that, It and breach of days employees Boyd’s injury, Travelers two after two Boyd telling they home, needed visited the Fannie investigate compensation Boyd’s heater workers’ belonged Boyd. employees claim. heater heater was relevant to future knew litigation. alleged circumstances, these
Under preserve Boyd’s property. duty Plaintiffs’ assumed complaint charges its as- also that Travelers breached *7 duty losing sumed heater. necessary a to state third and fourth elements negligence are action in causation
valid cause of damages. According Travelers, cannot they properly allege first these because must elements underlying in cause Coleman lose their of action injury. actual See Mutual order to sustain an Federated Components, Inc. Insurance Co. v. Precision Litchfield (Minn. 1990), 434; v. Monarch Print- 456 N.W.2d Petrik (1986), App. (1980), 248; 150 Ill. ing Corp. Cohen Fox v. App. 84 Ill. 3d 744.
Plaintiffs, hand, on the other maintain that count I complaint sufficiently alleges of their causation and damages. they they Moreover, insist that should not be required underlying pursuing to lose the lawsuit before argue They a cause of action single jury Travelers. that a try should be allowed both claims concur- rently, thereby saving judicial expense, time and avoiding piecemeal litigation. It be would unfair to subject pursuing them trials, burden two plaintiffs argue, especially where second trial would place years Lastly, they take several after the first. note jury hearing underlying that the claim would be in position missing the best to know whether the evidence actuality in affected the outcome of the case. Plaintiffs jury only speculate maintain that second as to they prevail litiga- the reason failed to in earlier tion. disagreement
Initially, we note our with Travelers’ allege injury assertion that for actual from they pursue the loss of the must first and lose underlying plead plaintiff causation, claim. To allege injury proximately must that an from a resulted duty. breach of a York, (Moudy Chicago, v. New & St. 453-54.) (1944), Therefore, 385 Ill. Louis R.R. Co. negligence involving the loss or destruction of allege plaintiff sup evidence, a must facts to sufficient port a claim that the loss or destruction of the caused the prove to be unable to plaintiff lawsuit.2 plaintiffs’ complaint alleges
Here, that Travelers not that, plaintiff 2 A need not show but for the loss destruc evidence, tion of prevailed would burden, action. This is too as it difficult impossible missing to know what the evidence would have shown.
197 it test to determine but failed to lost the only thereby Plaintiffs were explosion. cause the the of products their key piece of the of deprived itself. product against Coleman —the liability lawsuit testify that, result, expert no as They claim or was the heater defective doubt whether without to allegations are sufficient dangerously designed. These heater loss the theory that Travelers’ of support their suit prove to be unable to Coleman. (See alleged Jeffrey must as well. damages
Actual (1962), 37 Ill. Chicago Authority App. v. Transit 374.) Cunis, of 335; see Ill. 2d at A threat generally harm, realized, yet not is not actionable. future Conse wrongful upon person. conduct must impinge required allege that a defen quently, plaintiff loss caused the dant’s or destruction of the evidence valid, prove to be unable otherwise plaintiff underlying of plaintiff prove cause action. A must the harm has been before realized. subjudice, plaintiffs allege
In the facts case sufficient an in- supporting theory they have suffered in their li- ability products succeed otherwise valid ability plead action Coleman. Plaintiffs injuries Boyd personal sustained serious when Through this exploded. Coleman heater statement III forth the complaint, count of their which sets action, allege giving facts products liability however, demonstrate, plaintiff for the A must that but evidence, plaintiff had a or destruction defendant’s loss probability succeeding underlying in the suit. In reasonable words, underlying plaintiff prevail other if the could not evidence, destroyed action even the lost then with lawsuit. defendant’s conduct is not the cause of loss of the requirement prevents recovering it This from where underlying shown was can be that the meritless. above, rise to the suit. As discussed pleadings allege also a nexus between Travelers’ loss of inability the heater and their Accordingly, action. plaint sufficiently we find I that count com
alleges damages. however, actual We, express opinion appropriate no on of measure dam ages. damages The amount of be should determined the trial court and the trier of after a trial fact full on App. Petrik, the merits. See 150 Ill. 3d at 260-64. foregoing, Based on the I count of com- alleges plaint facts sufficient to state cause of action in negligence. agree plaintiffs single We also with that a may trier of fact be allowed hear an action for negligent spoliation concurrently underlying with the (Miller suit on it which is based. v. Allstate Insurance (Fla. 1990), App. (specifically 24, Co. 573 So. 28 2d n.7 finding trying jury single that a the two claims in a proceeding position inis the best to determine the is- Howard, sues); (1993), see also Smith v. Johnson Co. Superior 28, 1038; Ohio 1037, St. 3d 615 N.E.2d Smith v. (1984), App. Rptr. 491, 498, Court 829, 151 Cal. 3d 198 Cal. 833-34.) single A trier of fact would be in the best position fairly consistently. to resolve all the claims plaintiff only suit, If a loses the trier of fact who heard the case would know the real reason why. important spoliator may This factor is because a negligence only be in held liable if its loss or de- of struction the evidence to be unable prove suit.3 encourage plaintiffs We therefore and the trial court argued incorrectly single 3 Plaintiffs in trial court jury permitted apportion liability be should Coleman between apply Travelers. Contribution does not this case. Coleman’s potential and Travelers’ liabilities arise from different two (See (West 1992).) injuries. 740 ILCS Coleman is liable if 100/2 dangerous unreasonably can its heater was negligently only manufactured. Travelers is liable if Illinois, "plaintiffs In in this case. employ joinder *** action, against defen causes of may join any 1992).) (West (735 614(a) joinder The dants.” ILCS 5/2 — 2—405 of the Code governed by section of defendants (West 1992)). (735 Procedure ILCS of Civil 5/2 —405 either liability whom a is asserted "against Defendants arising of the severally or in alternative out jointly, or series of transactions” same transaction (735 (West 405(a) 1992); see also 735 ILCS joined. 5/2 — 405(c) (West 1992).) objective joinder ILCS of 5/2 — actions and trial convenience. economy is the are the claims arise out determining factors closely related "transactions” and that there is fact significant question case a of law or that is common parties. City (1958), to the v. Sullivan 14 Ill. Nokomis 420. These been met here. The claims requirements have closely Coleman and Travelers arise out of two *10 heater, the of the explosion related transactions: Indeed, subsequent loss of the heater. as- Travelers possession sumed of the for the purpose heater sole determining explosion. the cause of the There is also significant question of law fact that is common to the or fact, parties. question The dominant is one of whether the loss of the heater unable to plaintiffs Coleman, against their claim prove products liability and it is to all record parties. common From the beyond before us it appears all issues that common action, question readily single could be handled in a prejudice parties. without or to the inconvenience sum, In joinder and trials promote concurrent would can demonstrate that its loss of the heater caused them to be un- Therefore, prove against able to their lawsuit Coleman. as practical matter, in a trial fact would concurrent trier of liability products against its resolve action Coleman before negligence against consideration of action Travelers. and consistency, conserving fairness while valuable judicial On upon proper request resources. remand and by plaintiffs, the trial fully court should consider joinder whether appropriate concurrent trials are The parties argu- here. should be to present allowed ments and evidence that is this subject. relevant
We further address the dissent’s contention that we evidentiary against should create presumption According dissent, Travelers. to the we presume should "that heater was defective” and that "loss Travelers’ deprived plaintiffs the heater their lawsuit” (166 203.) against Coleman. 2d at Ill. dissent then "only concludes that the issue which needs to be tried is (166 204.) damages.” the issue of disagree Ill. 2d at We with the evidentiary dissent’s view. An presumption is improper First, here for two reasons. if plaintiffs can prove their against lawsuit Coleman without heater, missing they then been injured by not it. entirely Travelers’ loss of This is possible pres ent case because may be able to their products liability through Coleman (See circumstantial evidence. Ralston v. Casanova (1984), 1057-60.) App. Ill. can Similarly, we envision several factual situations where a has party negligently destroyed evidence, lost or but that evidence critical even underly not material to a plaintiff’s ing suit. A this circumstance should not be through operation allowed recover of an eviden tiary presumption. Second, if can prove would have lost their missing Coleman even with the then Travelers has not caused A plaintiffs’ injury. plaintiff should not *11 be an evidentiary allowed to recover with presumption it where can mer proven underlying that suit is See itless. 166 111. at 196-97. concluding,
Before address we regarding II as "willful II. Plaintiffs label count count tort is wanton,” in their brief this and but state spoliation of evidence. to of intentional akin the tort recognize spolia- They this to intentional then ask court as a tort. if we were inclined tion of new Even plaintiffs’ complaint so, fails for factual do count II alleges complaint only insufficiency. Plaintiffs’ agent placed closet, the heater in a and that Travelers’ be inferred from it later not be found. It not intentionally destroyed allegations these misplaced Therefore, II to state the heater. count fails spoliation for a cause of action intentional evidence. stated, For reasons we affirm the trial court’s spoliation of count II willful wanton dismissal of for and evidence, count I it reverse the dismissal of because negligence, and this states cause of action in remand proceedings cause to the trial court for further consis- opinion. tent with this part
Affirmed part; reversed in cause remanded. dissenting: HEIPLE, JUSTICE interlocutory appeal from This case is before us on answering single purpose trial court the sole question, namely: certified spoliation in a of evidencecase "Whether plead he civil
must case, impairment Answering lost the significant plead it that he or whether is sufficient ability prove ofhis suit?” question that certified was all that we nothing Nothing ap- more, do. were asked to less. interlocutory wisely accept pellate this court declined appeal. me, court For reasons unclear to decided take case. should have declined. We question all,
If, however, at were to be answered having question, abstract, asked in the should *12 respect, in have been answered the In abstract. depends.” two word answer would have sufficed: "It heavily majority Instead, the delves into the facts and pleadings, spoli- the on a takes off discussion of whether passes tort, ation of evidence is a the trial on court’s rul- ings pleadings, suggests joinder on the and concur- respect plaintiffs’ separate rent trials with to the claims against Company the Coleman and the Travelers Insur- Company. ance These are answers which there are questions. no opinion majority
If, does, the as we are to delve into pleadings case, in this we must take the facts of the complaint as true. What those facts make is clear missing space heater is not mere It is evidence. only plaintiffs against evidence that the would had have Company. the Coleman plaintiffs injured space were when a heater blew
up. missing. examining That evidence is now Without testing space possibility there is no plaintiffs whatever that against could sustain an action alleged its manufacturer of an because defect. perfect every way. may The heater It- waiting happen. have been accident No one will gone. plaintiffs’ ever know. It is against Gone is with it case Company. manufacturer, its the Coleman point majority’s require- Thus, there is no in the plaintiffs go through against ment that the a trial Company, Coleman the result of which would be foreor- all, dained. To the extent there is claim here at it party is who borrowed the heater from the plaintiffs. Company. That is the Travelers Insurance testing. Travelers borrowed it for it Travelers knew had up. injured by blown Travelers knew the were that, it. it Travelers knew or should have known if were plaintiffs’ only piece defective, it be the would Company. causative evidence the Coleman A became the bailee Travelers was created. bailment ordinary bailment. it was not an heater. But it with charged into entered company insurance bailee item. of the the bailed appreciation significance a full item not re- if were knew that the bailed Travelers’ turned, case would be lost. buying than thus, significantly more exposure, heater. space new point majority’s require- is no Similarly, there *13 Travelers, against in ment that their action plaintiffs, they had a reasonable probability demonstrate that against Coleman. succeeding in their nor returned the the bailee neither tested Since in heater defective we will never know whether the was fact. the that the heater
Had able plaintiffs defective, against the they would have recovered was forthcoming, the proof manufacturer. Had that not been Under circum- manufacturer would have the prevailed. stances, the only just presume result is to assign and to of its loss heater was defective burden assigned party. to the most The loss cannot be culpable has been Company deprived to the Coleman since it opportunity the heater was not establish assigned cannot plaintiffs defective. The loss deprived op- since the have been of the portunity to establish a defect heater loss, justice, in must be injuries. their fairness assigned to the bailee entered into the bailment who knowledge with full of the of the evidence importance then, was and who without justification, taken failed return it.
Thus, in this is a trial only necessary trial case bailee, Insurance on Company, defective and that presumption that heater was lawsuit deprived loss of the heater their only the Coleman which Company. issue to be is the of damages. needs tried issue I Accordingly, respectfully dissent. joins
JUSTICE HARRISON dissent. (No. 77300. al. BRIGHT,
JOAN et Appellee, v. FAITH DICKE (Faith Dicke, Appellant).
Opinion March 1995. filed