Boyd v. Travelers Ins. Co., No. 75466

CourtSupreme Court of Illinois
Writing for the CourtBILANDIC
Citation166 Ill.2d 188,209 Ill. Dec. 727,652 N.E.2d 267
Parties, 209 Ill.Dec. 727, 63 USLW 2455 Tommie BOYD et al., Appellants, v. TRAVELERS INSURANCE COMPANY et al., Appellees.
Docket NumberNo. 75466
Decision Date19 January 1995

Page 267

652 N.E.2d 267
166 Ill.2d 188, 209 Ill.Dec. 727, 63
USLW 2455
Tommie BOYD et al., Appellants,
v.
TRAVELERS INSURANCE COMPANY et al., Appellees.
No. 75466.
Supreme Court of Illinois.
Jan. 19, 1995.

As Modified on Denial of Rehearing June 22, 1995.

Page 268

[166 Ill.2d 190] [209 Ill.Dec. 728] Steven B. Levy, Ltd., Naperville, and Mary Jo Kelly, Wheaton (David A. Novoselsky and Linda A. Bryceland, Chicago, of counsel), for appellants.

John H. Guill and Michelle J. Caley, Roddy, Power, Leahy, Guill, Zima & Gifford, Ltd., Chicago, for appellee Travelers Insurance Co.

Chief Justice BILANDIC delivered the opinion of the court:

The question presented in this appeal is whether the trial court properly dismissed two counts of plaintiffs' complaint for failure to state a cause of action. Plaintiffs, Tommie and Fannie Boyd, filed a five-count complaint in the circuit court of Cook County against defendants, Travelers Insurance Company (Travelers) and the Coleman Company, Inc. (Coleman). Counts I and II of the complaint allege negligent and willful and wanton spoliation of evidence against Travelers. Counts III and IV allege products liability and negligence claims against Coleman. Count V contains a loss of consortium claim. Travelers filed a motion to dismiss the negligent and willful and wanton spoliation counts, which the trial court granted pursuant to section

Page 269

[209 Ill.Dec. 729] 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615 (West 1992)). The court found that the actions were premature because actual injury could not be alleged until plaintiffs lost the underlying suit against Coleman.

Pursuant to Supreme Court Rule 308 (134 Ill.2d R. 308), the trial court certified the following question for interlocutory appeal:

"Whether a plaintiff in a spoliation of evidence case must plead and prove that he lost the underlying civil [166 Ill.2d 191] case, or whether it is sufficient that he plead a significant impairment of his ability to prove the underlying suit."

The appellate court denied an application for leave to appeal. We granted plaintiffs' petition for leave to appeal to this court. 145 Ill.2d R. 315.

FACTS

On February 4, 1990, Tommie Boyd (Boyd) was working inside a van belonging to his employer, Superior Foods. To keep the van warm, Boyd was using a propane catalytic heater, which had been designed, manufactured, and distributed by Coleman. An explosion occurred, allegedly caused by propane gas escaping from the heater. Boyd sustained serious personal injuries and other damages. The heater was Boyd's personal property.

Boyd filed a claim for workers' compensation benefits against his employer and Travelers, his employer's workers' compensation insurer. On February 6, 1990, a Travelers claim adjuster, Tu Chi (Chi), and another Travelers employee, John Engelke, visited the Boyd residence. They took possession of the Coleman heater, telling Boyd's wife, Fannie, that Travelers needed the heater in order to investigate her husband's workers' compensation claim. They also told Fannie that Travelers would inspect and test the heater to determine the cause of the explosion.

Chi transported the heater to a Travelers office and stored it in a closet. Subsequently, when Boyd asked that the heater be returned to him, Travelers was unable to locate it. On September 27, 1991, Boyd sought a court order compelling Travelers to return the heater. Travelers' response admitted that its employees took possession of the heater and placed it in a closet, from which it later disappeared. Travelers had never tested the heater.

In counts I and II of their complaint, plaintiffs [166 Ill.2d 192] charge that they have been injured by Travelers' loss of the heater because no expert could testify with certainty as to whether the heater was defective or dangerously designed. Therefore, they allege, Travelers' loss of the heater has irrevocably prejudiced and adversely affected their products liability action against Coleman.

Travelers' motion to dismiss counts I and II contended that negligent and intentional spoliation of evidence are not recognized torts under Illinois law. In the alternative, Travelers claimed that, even if Illinois was to recognize either cause of action, plaintiffs' claims were premature because the underlying products liability action against Coleman was still pending. Travelers argued that, until plaintiffs lose the underlying action, they have suffered no actual injury, which is a necessary element to any cause of action. Therefore, Travelers concluded, plaintiffs must first lose the underlying suit in which the missing evidence would have been used.

The trial court granted Travelers' motion and dismissed counts I and II without prejudice. The trial court stated that a spoliation of evidence claim would be recognized in Illinois given the right facts. However, it agreed with Travelers that plaintiffs' claims were premature unless and until they lost the underlying suit against Coleman, thereby sustaining an actual injury. Accordingly, the trial court gave plaintiffs leave to refile counts I and II following the resolution of their products liability action against Coleman.

ANALYSIS

The question as certified by the trial court assumes that Illinois courts recognize "spoliation of evidence" as an independent cause of action. On the contrary, this court, consistent with a majority of jurisdictions,

Page 270

[209 Ill.Dec. 730] has [166 Ill.2d 193] never done so. 1 For reasons that follow, we today hold that an action for negligent spoliation can be stated under existing negligence law.

When this court accepts an appeal involving a certified question, we may "enter any judgment and make any order that ought to have been given or made, and make any other and further orders and grant any relief * * * that the case may require." (134 Ill.2d R. 366(a)(5).) Counts I and II, which purport to state claims for [166 Ill.2d 194] negligent and willful and wanton spoliation of evidence, were dismissed under section 2--615 for failure to state a cause of action. The question presented by a section 2--615 motion to dismiss is whether the plaintiff has alleged sufficient facts in the complaint which, if proved, would entitle the plaintiff to relief. (Urbaitis v. Commonwealth Edison (1991), 143 Ill.2d 458, 475, 159 Ill.Dec. 50, 575 N.E.2d 548.) All well-pleaded facts in the complaint are taken as true. A motion to dismiss should be denied where a cause of action is stated, even if it is not the cause of action intended by the plaintiff. Doe v. Calumet City (1994), 161 Ill.2d 374, 388, 204 Ill.Dec. 274, 641 N.E.2d 498.

Here, count I of plaintiffs' complaint alleges that Boyd sustained serious personal injuries and other damages when the Coleman heater exploded. His wife, Fannie, relinquished the heater to two Travelers employees. The employees told her that they needed the heater to investigate Boyd's workers' compensation claim, and that they would inspect and test the heater to determine what caused the explosion. The heater, initially placed in a closet, later could not be found. Plaintiffs' complaint charges that Travelers' loss of the heater has impaired their ability to prove the products liability claim against Coleman. The legal effect of these factual allegations is to state a cause of action against Travelers for negligence.

Courts have long afforded redress for the destruction of evidence and, in our opinion, traditional remedies adequately address the problem presented in this case. An action for negligent spoliation can be stated under existing negligence law without creating a new tort. (See, e.g., Pirocchi v. Liberty Mutual Insurance Co. (E.D.Pa.1973), 365 F.Supp. 277, 281-82 (involving a factual scenario virtually identical to the facts of the present case).) To state a cause of action for negligence, a plaintiff must plead the existence of a duty owed by the [166 Ill.2d 195] defendant to the plaintiff, a breach of that duty, an injury proximately caused by the breach, and damages. Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill.2d 496, 503, 117 Ill.Dec. 47, 520 N.E.2d 37; Cunis v. Brennan (1974), 56 Ill.2d 372, 374, 308 N.E.2d 617.

The general rule is that there is no duty to preserve evidence; however, a duty to preserve evidence may arise through an agreement, a contract, a statute (see Rodgers v. St. Mary's Hospital (1992), 149 Ill.2d 302,

Page 271

[209 Ill.Dec. 731] 173 Ill.Dec. 642, 597 N.E.2d 616) or another special circumstance. Moreover, a defendant may voluntarily assume a duty by affirmative conduct. (See Nelson v. Union Wire Rope Corp. (1964), 31 Ill.2d 69, 74, 199 N.E.2d 769.) In any of the foregoing instances, 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.

In this case, count I of plaintiffs' complaint properly pleads a duty and a breach of that duty. It alleges that, two days after Boyd's injury, two Travelers employees visited the Boyd home, telling Fannie that they needed the heater to investigate Boyd's workers' compensation claim. The heater belonged to Boyd. The employees knew that the heater was evidence relevant to future litigation. Under these alleged circumstances, Travelers assumed a duty to preserve Boyd's property. Plaintiffs' complaint also charges that Travelers breached its assumed duty by losing the heater.

The third and fourth elements necessary to state a valid cause of action in negligence are causation and damages. According to Travelers, plaintiffs cannot properly allege these elements because they must first lose their underlying cause of action against Coleman in order to sustain an actual injury. See Federated Mutual Insurance Co. v. Litchfield Precision Components, Inc. (Minn.1990), 456 N.W.2d 434; Petrik v. Monarch Printing[166 Ill.2d 196] Corp. (1986), 150...

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263 practice notes
  • Moorer v. Valkner, 18 CV 3796
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • December 20, 2021
    ...not an independent tort. See Borsellino v. Goldman Sachs Group, Inc., 477 F.3d 502, 509-510 (7th Cir. 2007); Boyd v. Travelers Ins. Co., 166 Ill.2d 188, 192-193 (1995).[47] To show negligent spoliation, a plaintiff must prove that a defendant owed him a duty to preserve the evidence in ques......
  • Rizzuto v. Davidson Ladders, Inc., No. 17310.
    • United States
    • Supreme Court of Connecticut
    • October 3, 2006
    ...be brought until after the underlying claim which is dependent upon the missing evidence is lost"); but see Boyd v. Travelers Ins. Co., 166 Ill.2d 188, 198, 209 Ill.Dec. 727, 652 N.E.2d 267 (1995) (plaintiff need not lose underlying action to bring spoliation claim, instead, plaintiff may b......
  • Kolanovic v. Gida, No. CIV. 97-2397(JAG).
    • United States
    • U.S. District Court — District of New Jersey
    • December 29, 1999
    ...P.2d 456 (Alaska 1986) (stating Alaska recognizes intentional spoliation tort where defendant altered tapes); Boyd v. Travelers Ins. Co., 166 Ill.2d 188, 209 Ill.Dec. 727, 652 N.E.2d 267 (1995) (stating claim for negligent spoliation could be stated under existing Illinois Other Courts, how......
  • Cook v. AAA Life Ins. Co., No. 1–12–3700.
    • United States
    • United States Appellate Court of Illinois
    • June 9, 2014
    ...and whether there is in the case a significant question of law or fact that is common to the parties. Boyd v. Travelers Insurance Co., 166 Ill.2d 188, 199, 209 Ill.Dec. 727, 652 N.E.2d 267 (1995). “A reviewing court will not disturb a trial court's ruling on discovery matters unless there i......
  • Request a trial to view additional results
263 cases
  • Moorer v. Valkner, 18 CV 3796
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • December 20, 2021
    ...not an independent tort. See Borsellino v. Goldman Sachs Group, Inc., 477 F.3d 502, 509-510 (7th Cir. 2007); Boyd v. Travelers Ins. Co., 166 Ill.2d 188, 192-193 (1995).[47] To show negligent spoliation, a plaintiff must prove that a defendant owed him a duty to preserve the evidence in ques......
  • Rizzuto v. Davidson Ladders, Inc., No. 17310.
    • United States
    • Supreme Court of Connecticut
    • October 3, 2006
    ...be brought until after the underlying claim which is dependent upon the missing evidence is lost"); but see Boyd v. Travelers Ins. Co., 166 Ill.2d 188, 198, 209 Ill.Dec. 727, 652 N.E.2d 267 (1995) (plaintiff need not lose underlying action to bring spoliation claim, instead, plaintiff may b......
  • Kolanovic v. Gida, No. CIV. 97-2397(JAG).
    • United States
    • U.S. District Court — District of New Jersey
    • December 29, 1999
    ...P.2d 456 (Alaska 1986) (stating Alaska recognizes intentional spoliation tort where defendant altered tapes); Boyd v. Travelers Ins. Co., 166 Ill.2d 188, 209 Ill.Dec. 727, 652 N.E.2d 267 (1995) (stating claim for negligent spoliation could be stated under existing Illinois Other Courts, how......
  • Cook v. AAA Life Ins. Co., No. 1–12–3700.
    • United States
    • United States Appellate Court of Illinois
    • June 9, 2014
    ...and whether there is in the case a significant question of law or fact that is common to the parties. Boyd v. Travelers Insurance Co., 166 Ill.2d 188, 199, 209 Ill.Dec. 727, 652 N.E.2d 267 (1995). “A reviewing court will not disturb a trial court's ruling on discovery matters unless there i......
  • Request a trial to view additional results

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