Andersen v. Mack Trucks, Inc.

• Decision Date: 15 July 2003
• Docket Number: No. 2-02-0201.,2-02-0201.
• Citation: 276 Ill.Dec. 203,341 Ill. App.3d 212,793 N.E.2d 962
• Parties: James ANDERSEN, as Independent Adm'r of the Estate of Daniel Andersen, Deceased, Plaintiff, v. MACK TRUCKS, INC., Defendant (Galbreath, Inc., Defendant and Third-Party Plaintiff-Appellant; BFI Waste Systems of North America, Inc., Third-Party Defendant-Appellee; Dana Corporation, Third-Party Defendant).
• Court: United States Appellate Court of Illinois

793 N.E.2d 962

341 Ill. App.3d 212

276 Ill.Dec. 203

James ANDERSEN, as IndependentAdm'r of the Estate of Daniel Andersen, Deceased, Plaintiff, v.MACK TRUCKS, INC., Defendant (Galbreath, Inc., Defendant and Third-Party Plaintiff-Appellant; BFI Waste Systems of North America, Inc., Third-Party Defendant-Appellee; Dana Corporation, Third-Party Defendant).

No. 2-02-0201.

Appellate Court of Illinois, Second District.

July 15, 2003.

Terry D. Weissman, Brad Twedt, Catherine E. Steigmann, Neal, Gerber & Eisenberg, Chicago, for Galbreath, Inc.

James T. Ferrini, Paula M. Carstensen, Steven N. Novosad, Ann C. Chalstrom, Clausen Miller P.C., Chicago, for BFI Waste Systems of North America, Inc.

Justice GROMETERdelivered the opinion of the court:

Plaintiff, James Andersen, filed a wrongful death, product liability, negligence, and survival action in connection with the death of his father, Daniel Andersen(Daniel), who was killed in a work-related accident.The complaint named Galbreath, Inc.(Galbreath), and Mack Trucks, Inc.(Mack), as defendants.This appeal arises from the dismissal, with prejudice, pursuant to Supreme Court Rule 304(a)(155 Ill.2d R. 304(a)), of Galbreath's second-amended third-party complaint for negligent spoliation of evidence against Daniel's employer, BFI Waste Systems of North America, Inc.(BFI).We affirm the portion of the order dismissing Galbreath's complaint.We reverse insofar as the dismissal is with prejudice and remand for further proceedings.

The original complaint alleged that Daniel was killed on February 14, 2000, when a hydraulic hose in the hoist mechanism of the truck he was operating for BFI ruptured, causing the mechanism to fail and the load to lower onto him.Mack manufactured the truck involved, and Galbreath manufactured the hoist mechanism.Galbreath filed a third-party complaint against BFI for contribution, on the basis that BFI had been negligent in its repair and maintenance of the equipment and in the training of its employees.

The court dismissed Galbreath's contribution complaint in accordance with the rule in Kotecki v. Cyclops Welding Corp.,146 Ill.2d 155, 166 Ill.Dec. 1, 585 N.E.2d 1023(1991), when BFI agreed to release its workers' compensation lien.Galbreath then filed its first-amended complaint, which alleged that BFI's negligent loss of the truck and related equipment had impaired its ability to defend itself in the underlying suit.The court dismissed this complaint and Galbreath filed its second-amended complaint, which alleged essentially as follows.

The Waukegan police, the Occupational Safety and Health Administration (OSHA), and an engineering consulting firm, Triodyne Engineering, each investigated the accident that killed Daniel.

Three days after the accident, on February 17, 2000, BFI's Waukegan district manager wrote to Galbreath informing it of the fatality and requesting that a service representative inspect the equipment.The letter also informed Galbreath that BFI intended to place the equipment back in service on March 1, 2000.

On February 21, 2000, Galbreath's engineering manager made a "brief visual inspection" of the equipment at BFI's Waukegan facility.BFI had secured the truck and segregated it from other BFI trucks and equipment.

Some time "shortly after" the inspection, Galbreath sent the Waukegan district manager a letter requesting that he turn over evidence relating to Daniel's death, including the ruptured hose.Galbreath asked that the hose be preserved if it could not be turned over.We note that the letter is undated, and the date on which it was sent cannot be determined from the record.

On April 1, 2000, BFI sold the equipment to Onyx Waste Services, Inc.(Onyx).(Although it is not specifically alleged by Galbreath, we note that the record reflects that the equipment was sold as part of the sale of BFI's entire Waukegan operation to Onyx.)

BFI did not inform Galbreath of the sale of the equipment at the time the third-party complaint was filed and did not comply with discovery demands for the equipment.BFI first informed Galbreath of the sale of the equipment in a letter dated May 2, 2001.

Galbreath ultimately succeeded in locating the truck at the Onyx facilities, but the hoist and the hose were not recovered.

OSHA's report on the accident suggests that BFI had modified the truck, hoist, and hose.

Finally, Galbreath alleged that, had the equipment been preserved, it would have established the "lack of defect attributable to Galbreath and/or the merit of one or more affirmative defenses based upon third-party modification or other intervening causes.* * * Absent that evidence, Galbreath may not be able to prove these defenses, and its ability to defend itself in the [u]nderlying [l]itigation has been impaired."

BFI moved to dismiss this complaint under section 2-615 of the Code of Civil Procedure(735 ILCS 5/2-615(West 2000)).This motion was granted with prejudice.The order stated that the complaint had failed to allege a duty owed by BFI to Galbreath, the breach of such a duty, and the breach's proximate cause of damages to Galbreath.The trial court found no just reason to delay appeal of the dismissal order, and this appeal followed.

A motion to dismiss a complaint under section 2-615 should be granted only when the allegations in the complaint, construed in the light most favorable to the plaintiff, fail to state a cause of action upon which relief can be granted.Oliveira v. Amoco Oil Co.,201 Ill.2d 134, 147, 267 Ill.Dec. 14, 776 N.E.2d 151(2002).All well-pleaded facts and inferences drawn from those facts are accepted as true.Oliveira,201 Ill.2d at 147, 267 Ill.Dec. 14, 776 N.E.2d 151.We review a dismissal under section 2-615de novo.Oliveira,201 Ill.2d at 147-48, 267 Ill.Dec. 14, 776 N.E.2d 151.

The Illinois Supreme Court set forth the elements needed for a spoliation of evidence claim in Boyd v. Travelers Insurance Co.,166 Ill.2d 188, 209 Ill.Dec. 727, 652 N.E.2d 267(1995).Spoliation of evidence is not an independent basis for a tort claim, but relief is available if a claim can be stated under ordinary negligence law.Boyd,166 Ill.2d at 193, 209 Ill.Dec. 727, 652 N.E.2d 267.Thus, the plaintiff in a spoliation of evidence case must plead the existence of a duty, a breach of the duty, an injury proximately caused by the breach, and damages.Boyd,166 Ill.2d at 194-95, 209 Ill.Dec. 727, 652 N.E.2d 267.

No general duty to preserve evidence exists, but a duty can arise out of an agreement or contract, a statutory requirement, or another special circumstance, such as the assumption of the duty by affirmative conduct.If one of these pertains, then a defendant"owes a duty of due care to preserve evidence if a reasonable person in the defendant's position should have foreseen that the evidence was material to a potential civil action."Boyd,166 Ill.2d at 195, 209 Ill.Dec. 727,652 N.E.2d 267.

In Boyd,the plaintiff alleged that he was at work in his employer's van when a propane heater exploded, seriously injuring him.The heater was the plaintiff's personal property.The defendant, the plaintiff's employer's insurer, took possession of the heater, saying that it was needed to investigate the plaintiff's workers' compensation claim.However, the heater was lost before any testing was completed.The defendant's employees were aware of the relevance of the heater to future litigation.By taking control of the heater under the circumstances described, the defendant assumed a duty to preserve it.Boyd,166 Ill.2d at 195, 209 Ill.Dec. 727, 652 N.E.2d 267.

Boyd articulates a two-prong test for the existence of a duty to preserve evidence: (1) an agreement, contract, statutory requirement, or other special circumstance such as the assumption of the duty by affirmative conduct (the relationship prong), and (2) that a reasonable person in the defendant's position should have foreseen that the evidence was material to a potential civil action (the foreseeability prong).Boyd,166 Ill.2d at 195, 209 Ill. Dec. 727, 652 N.E.2d 267.Unless both prongs are satisfied, there is no duty to preserve evidence.Boyd,166 Ill.2d at 195, 209 Ill.Dec. 727, 652 N.E.2d 267.

The Illinois Supreme Court offered some insight into the circumstances that give rise to a duty to preserve evidence in Miller v. Gupta,174 Ill.2d 120, 220 Ill.Dec. 217, 672 N.E.2d 1229(1996).In Miller,the court allowed the plaintiff to amend the spoliation count of her complaint where the record suggested that the evidence sought had been destroyed after the plaintiff's attorney had requested it from the defendant and while it was segregated, as a result of the request, from other similar material.Miller,174 Ill.2d at 123-24, 220 Ill.Dec. 217, 672 N.E.2d 1229.Miller did not hold that these facts, if properly pleaded, would give rise to a duty to preserve the evidence; it did consider these facts significant in its decision to remand and allow the plaintiff to replead her spoliation complaint.Thus, Miller gives an additional indication of the sort of special circumstances that give rise to a duty to preserve evidence.

Two Fifth Districtcases, cited by Galbreath in support of its complaint, seem to eliminate the relationship prong from Boyd.In Jones v. O'Brien Tire & Battery Service Center, Inc.,322 Ill.App.3d 418, 256 Ill.Dec. 463, 752 N.E.2d 8(2001), the court stated that a "plaintiff in a negligence case based upon spoliation of evidence need only allege that a reasonable person in the defendant's position should have foreseen that the evidence in question was material to a potential civil action.There is no requirement that the plaintiff allege the existence of any `special relationship' which would give rise to that knowledge.* * * [T]he existence of a `special relationship' * * * would help to establish * * * foreseeability * * *."Jones,322 Ill.App.3d at 422-23, 256 Ill. Dec. 463, 752 N.E.2d 8.

In Jones,...