Dardeen v. Kuehling

• Decision Date: 02 December 2004
• Docket Number: No. 97900.,97900.
• Parties: James DARDEEN, Appellee, v. Alice KUEHLING et al. (State Farm Insurance Company, Appellant).
• Court: Illinois Supreme Court

821 N.E.2d 227

213 Ill.2d 329

290 Ill.Dec. 176

James DARDEEN, Appellee, v. Alice KUEHLING et al. (State Farm Insurance Company, Appellant).

No. 97900.

Supreme Court of Illinois.

December 2, 2004.

Russell K. Scott, Joseph B. McDonnell, David W. Ybarra, of Greensfelder, Hemker & Gale, Belleville, for appellant.

Kelly R. Phelps, of Lambert, Beggs & Phelps, Harrisburg, for appellee.

Michael Resis, Glen E. Amundsen, of O'Hagan, Smith & Amundsen, L.L.C., for amicus curiae Illinois Association of Defense Trial Counsel.

Barry G. Doyle, Chicago, for amicus curiae Illinois Trial Lawyers Association.

Justice FITZGERALD delivered the opinion of the court:

State Farm Insurance Company (State Farm) ¹ appeals the decision of the appellate court reversing the circuit court of Wabash County's order granting summary judgment against James Dardeen on his negligent spoliation of evidence claim. The central issue in this case is whether a homeowner's insurer has a duty to instruct the homeowner to preserve evidence which may be relevant to a potential personal injury claim by someone injured on the homeowner's property. We conclude that, on the facts in this case, the insurer has no such duty. We reverse the appellate court and affirm the trial court.

BACKGROUND

On the morning of September 1, 1999, while delivering newspapers with his daughter, James Dardeen fell in a hole on the brick sidewalk outside Alice Kuehling's house. Dardeen fractured his right elbow. Because it was not yet light, Dardeen bent down to get a closer look at the hole. Dardeen and his daughter subsequently described the hole as 12 inches wide and 4 to 6 inches deep, "the size of a dinner plate."

Dardeen's daughter telephoned Kuehling later that day to notify her of the accident and request the name of her insurer. Kuehling instructed Dardeen's daughter, "[S]end your father up to my house this evening and I'll talk to him." Kuehling then telephoned her State Farm agent, Ronald Couch. Kuehling told Couch that several bricks were "cocked up" where Dardeen fell, making the sidewalk uneven. She asked Couch, "Would it be all right if I removed those bricks before this happened again?" or "Could I remove those bricks before somebody else gets hurt on it [sic]?" Couch said yes. That evening, Dardeen returned to the site of Kuehling's house with his neighbor to see the hole and spoke to Kuehling, her daughter, and her son-in-law. Though Dardeen's wife photographed his elbow for litigation purposes, no one photographed the hole. A few days later, Kuehling removed between 25 and 50 bricks from the area.

Nearly a year later on August 1, 2000, Dardeen filed a premises liability complaint against Kuehling and the City of Mt. Carmel, alleging that their failure to repair the hole or warn others of its existence proximately caused his elbow injury. Dardeen voluntarily dismissed the claim against the city, but, on May 25, 2001, he filed an amended complaint, adding negligent spoliation of evidence claims against both Kuehling and State Farm. Regarding State Farm, Dardeen alleged that "the hole in the brick sidewalk" was material evidence to his premises liability claim and that State Farm had a duty to preserve that evidence once its agent Couch heard about the accident from Kuehling. Dardeen further alleged that State Farm breached this duty when it authorized Kuehling to remove the raised bricks before taking photographs of the area.

State Farm filed a motion for summary judgment on this count; the trial court granted that motion. Dardeen asked the trial court to add Supreme Court Rule 304(a) language to its order. See 155 Ill.2d R. 304(a). The trial court assented, and Dardeen appealed. His other claims against Kuehling remained pending.²

The appellate court reversed. 344 Ill.App.3d 832, 280 Ill.Dec. 15, 801 N.E.2d 960. Initially, the appellate court reviewed the leading spoliation case from this court, Boyd v. Travelers Insurance Co., 166 Ill.2d 188, 209 Ill.Dec. 727, 652 N.E.2d 267 (1995), and noted that there is no general duty to preserve evidence, though one may arise by agreement or other affirmative conduct. 344 Ill.App.3d at 835-36, 280 Ill.Dec. 15, 801 N.E.2d 960. The appellate court also discussed Shimanovsky v. General Motors Corp., 181 Ill.2d 112, 121, 229 Ill.Dec. 513, 692 N.E.2d 286 (1998), where we held that a potential litigant owes a duty to take reasonable measures to preserve relevant, material evidence. 344 Ill.App.3d at 836, 280 Ill.Dec. 15, 801 N.E.2d 960. The appellate court then concluded:

"In the instant case, circumstances exist sufficient to impose a duty on State Farm to preserve evidence. State Farm had a contractual relationship with its insured, Alice Kuehling. Kuehling called State Farm the same day the plaintiff fell on the sidewalk and asked whether or not she could remove some bricks so no one else would get hurt. Ronald Couch, a State Farm agent, replied that it would be okay for the plaintiff to remove the bricks. Couch did not recommend that Kuehling take pictures or videotape the sidewalk, nor did he offer to send an investigator to do so prior to the removal of the bricks.

Couch, as an agent for State Farm, was well aware that the sidewalk was material to any potential civil litigation resulting from the plaintiff's fall. Kuehling relied on her agent's advice before removing the bricks. Couch was not free to allow Kuehling to destroy the sidewalk. A crucial piece of evidence is now missing. As a result of State Farm's actions, neither its insured, Alice Kuehling, nor the plaintiff will be able to use this evidence in the ongoing litigation, and their positions have, thereby, been impaired." 344 Ill.App.3d at 837, 280 Ill.Dec. 15, 801 N.E.2d 960.

The appellate court rejected State Farm's argument that it owed no duty to preserve evidence it did not possess or control. 344 Ill.App.3d at 838, 280 Ill.Dec. 15, 801 N.E.2d 960. Noting that Jones v. O'Brien Tire & Battery Service Center, Inc., 322 Ill.App.3d 418, 256 Ill.Dec. 463, 752 N.E.2d 8 (2001), emphasized the defendant's possession of the disputed evidence in finding a duty to preserve, the appellate court stated that Jones"does not absolutely require" possession of the evidence before a court may impose a duty to preserve it. 344 Ill.App.3d at 838, 280 Ill.Dec. 15, 801 N.E.2d 960. "Here, State Farm did not have possession of the sidewalk but, instead, exercised control or had the opportunity to exercise control." 344 Ill.App.3d at 838, 280 Ill.Dec. 15, 801 N.E.2d 960. Consequently, it had a duty to preserve the sidewalk and its hole. 344 Ill.App.3d at 838, 280 Ill.Dec. 15, 801 N.E.2d 960.

The appellate court also concluded that a material issue of fact existed as to whether State Farm breached its duty: State Farm insisted that it did not authorize Kuehling to remove the bricks; Kuehling stated that Couch told her she could do so. 344 Ill.App.3d at 838-39, 280 Ill.Dec. 15, 801 N.E.2d 960. Regarding causation, the appellate court found another material issue of fact. 344 Ill.App.3d at 839, 280 Ill.Dec. 15, 801 N.E.2d 960. The appellate court turned to Dardeen's complaint, which alleged that the hole in the sidewalk was a key piece of evidence and that the failure to photograph or videotape the hole rendered him unable to prove his premises liability claim: "We find that the plaintiff's allegations are sufficient to support the theory that the destruction of the brick sidewalk caused the plaintiff to be unable to prove his lawsuit against Kuehling." 344 Ill.App.3d at 839, 280 Ill.Dec. 15, 801 N.E.2d 960. Though at least eight people viewed the hole in the sidewalk before Kuehling removed the bricks, their descriptions could differ; a photograph or videotape would have been conclusive. 344 Ill.App.3d at 840, 280 Ill.Dec. 15, 801 N.E.2d 960.

In dissent, Justice Kuehn focused on whether State Farm possessed the sidewalk:

"Much is made of the factual issue of whether State Farm advised Alice Kuehling that it was okay to dismantle the apparently dangerous sidewalk. In my opinion, that perceived issue is irrelevant. Even if we view the evidence in a light most favorable to * * * Dardeen and assume that State Farm did tell * * * Kuehling that there was no problem in dismantling the sidewalk, that would not change the issue of liability. The sidewalk at issue was owned by either Alice Kuehling or the City of Mt. Carmel. State Farm had no ownership interest in the sidewalk. State Farm had no possessory interest in the sidewalk. Contrary to the majority's opinion, I believe that the possession of the item allegedly spoliated is critical to a finding of negligence. At a minimum, if the alleged spoliator did not physically possess the item, then the spoliator must have had the ability to control the entity who did possess the item. At its essence, spoliation involves an ability to affect the outcome of the spoliated item's existence. Those types of situations simply did not exist in this case." 344 Ill.App.3d at 841, 280 Ill.Dec. 15, 801 N.E.2d 960 (Kuehn, J., dissenting).

We granted State Farm's petition for leave to appeal. 177 Ill.2d R. 315(a). We also granted the Illinois Association of Defense Trial Counsel leave to file a brief as amicus curiae in support of State Farm, and the Illinois Trial Lawyers Association (ITLA) leave to file a brief as amicus curiae in support of Dardeen. See 155 Ill.2d R. 345. In this appeal from the appellate court's reversal of the trial court's order granting summary judgment, our standard of review is de novo. See Roth v. Opiela, 211 Ill.2d 536, 542, 286 Ill.Dec. 57, 813 N.E.2d 114 (2004).

ANALYSIS

Summary judgment should be granted if "there is no genuine issue as to any material fact and * * * the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 1998); see Robidoux v. Oliphant, 201 Ill.2d 324, 335, 266 Ill.Dec. 915, 775 N.E.2d 987 (2002). Though summary judgment can aid in the expeditious...