Appeal from the Circuit Court of Cook County; the Hon. Thomas
J. O'Brien, Judge, presiding.
JUSTICE SCARIANO DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 8, 1987.
Plaintiff, Emil Petrik, appeals from a judgment on the pleadings rendered against him by the circuit court pursuant to section 2-615(e) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615(e)) on his tort claim for the intentional spoliation of evidence.
Plaintiff was discharged from his employment as vice-president-finance with defendant on April 6, 1979. He filed suit against defendant on April 3, 1981, alleging that he had been the victim of a retaliatory discharge and additionally requesting expenses and overtime pay accrued while he was an employee. In October 1981 the circuit court dismissed his complaint for failure to state a cause of action. This court reversed and remanded the dismissal order on December 21, 1982. (Petrik v. Monarch Printing Corp. (1982), 111 Ill. App.3d 502, 444 N.E.2d 588 (Petrik I).) The supreme court denied leave to appeal on April 23, 1983. 93 Ill.2d 548.
After remand from this court, defendant filed a motion for summary judgment supported by affidavits and documentary evidence. The circuit court held a hearing on defendant's motion on May 1, 1984, and granted summary judgment for defendant on all but the overtime claim. On July 11, 1984, plaintiff filed this action, which the judge consolidated with plaintiff's other suit.
In the instant complaint, plaintiff alleged that he discovered a $130,000 discrepancy between the accounts receivable ledger and the accounts receivable and immediately informed Herbert C. Hansen, defendant's president and chief operating officer. Hansen asked him to find the source of this discrepancy, and in so doing plaintiff reviewed defendant's accounting code book, cash book ledger and certain cancelled checks from its corporate bank account. Plaintiff alleged that he discovered by examination of these documents that some loan payments for Hansen's purchase of defendant company had been made out of defendant's corporate funds, in direct violation of the purchase agreement. Plaintiff alleged that "[t]he findings of plaintiff suggested embezzlement of corporate funds of defendant." Plaintiff notified Hansen that officers or employees of defendant might be violating the criminal laws. In November 1978 Hansen told him not to worry because the purchase agreement had been changed on the last day of negotiations, but Hansen refused to produce a copy of the revised contract. Plaintiff alleged that he was discharged and he filed suit and that after his suit was remanded from this court, he filed a written request upon defendant to produce defendant's cash book for the period July 1978 through March 1979 and the cost codes used during the same period. Plaintiff further alleged that defendant knew that the evidence was "critical, material and highly relevant" to his pending civil action. Plaintiff alleged:
"[D]efendant willfully, wrongfully and intentionally and with conscious disregard of the probable serious harm to plaintiff, and with malice and reckless indifference for the injurious consequences of its acts, concealed, lost, destroyed, or otherwise disposed of the physical evidence after this lawsuit was filed and after plaintiff's request for the physical evidence, the exact date being unknown to plaintiff but known to defendant.
* * * [D]efendant acted with conscious disregard and with reckless indifference of the probable injurious consequences of its acts by disregarding and ignoring information provided to it by plaintiff which caused defendant to know, or in the exercise of reasonable care should have caused them to know, that the physical evidence was critical, material, and highly relevant evidence in plaintiff's civil actions. Defendant's failure to heed this information (see Paragraphs 13-17 [which detail plaintiff's discovery of the alleged discrepancy]) proximately caused the destruction, concealment, loss or other disposition of the physical evidence.
30. By reason of the foregoing willful, wrongful, intentional, conscious and reckless acts of defendant, plaintiff has been injured in that plaintiff's opportunity to obtain compensation for alleged retaliatory discharge by establishing proof of embezzlement has been significantly prejudiced."
On August 27, 1984, defendant filed an answer to the present complaint. In its answer, defendant denied that there was any embezzlement or that defendant informed Hansen of any wrongdoing. In addition, defendant denied the allegations, quoted above, that it knew the physical evidence was critical but destroyed it in conscious disregard of or reckless indifference to the consequences of its action. Defendant further denied that plaintiff was injured in his opportunity to obtain compensation for the alleged retaliatory discharge by its prejudicing his ability to prove embezzlement. Defendant also denied plaintiff's allegations of damages.
On September 5, 1985, defendant moved for judgment on the pleadings under the Code of Civil Procedure, section 2-615(e) (Ill. Rev. Stat. 1985, ch. 110, par. 2-615(e)), asserting that the complaint was legally insufficient and failed to state a cause of action because no Illinois statute or judicial decision had recognized any cause of action for tortious interference with pending civil action by spoliation of evidence.
After hearing oral arguments on defendant's motion, the trial court ruled: "In the absence of the sanction remedy under 219-C and the holding in Ralston v. Casanova [(1984), 129 Ill. App.3d 1050, 473 N.E.2d 444], I would be highly inclined to recognize this cause of action. Litigants ought to be vigorously discouraged and punished for secreting evidence, but there simply is no reason here to recognize a separate cause of action." The judge's written order states that it is final and appealable, and a separate order was entered severing this case from plaintiff's other suit. Plaintiff filed a timely notice of appeal.
Before plaintiff filed the present suit for spoliation of evidence, the circuit court granted summary judgment against plaintiff on his retaliatory-discharge claim, which was on remand from this court. The court withheld decision on the overtime claim, however. On June 3, 1984, the circuit court denied plaintiff's motion to vacate summary judgment and certified its judgment on the retaliatory discharge for appeal. This court affirmed summary judgment for defendants on plaintiff's retaliatory-discharge claim by opinion issued April 22, 1986. Petrik v. Monarch Printing Corp. (1986), 143 Ill. App.3d 1, 493 N.E.2d 616 (Petrik II).
Courts in three States, including this court, have considered appeals based on claims for the spoliation of evidence. The leading case is Smith v. Superior Court (1984), 151 Cal.App.3d 491, 198 Cal.Rptr. 829, in which the plaintiff alleged that she was driving down the highway when the left rear wheel and tire flew off of the van in front of her and smashed her windshield, causing permanent blindness. She alleged that, after the accident, the dealer that had customized the van towed it to its garage for repairs. The dealer agreed with plaintiff's counsel to maintain certain auto parts pending further investigation. The complaint alleged that thereafter the dealer "lost, destroyed or otherwise disposed of the physical evidence which they had promised to maintain for Plaintiffs." (151 Cal.App.3d 491, 495, 198 Cal.Rptr. 829, 832.) The eighth count of the second amended complaint against the dealer contained a cause of action entitled "Tortious Interference with Prospective Civil Action by Spoliation of Evidence." The trial court sustained the dealer's demurrer to this count, ruling that such an intentional tort did not exist. The California Court of Appeals reversed.
The appeals court concluded that a recent California Supreme Court case, Williams v. State of California (1983), 34 Cal.3d 18, 664 P.2d 137, 192 Cal.Rptr. 233, indicated that such a cause of action could be stated in negligence, provided the defendant owed a duty. In Williams the plaintiff had been injured when a piece of brake drum from another truck flew into her windshield. The plaintiff filed suit against the State, alleging that the highway patrolmen who came to her aid negligently and carelessly investigated the accident and failed to pursue the offending truck, so as to "virtually destroy" plaintiff's opportunity to obtain compensation for her severe injuries. (34 Cal.3d 18, 21-22, 664 P.2d 137, 138, 192 Cal.Rptr. 233, 234.) The California high court ruled that the highway patrol had a right, but not a duty to investigate accidents and aid stranded motorists. The court stated, "There are no allegations that the officers assured her * * * that they would do any of the acts she faults them for not doing, * * * [or] that they conducted themselves in such a manner as to warrant reliance * * * nor, finally, is there any hint that they prevented plaintiff from conducting an investigation of her own." The court held that plaintiff had not stated a cause of action. Nonetheless, the court concluded that because the trial court had dismissed her claim on immunity grounds she should be given leave to amend her complaint in the trial court. The California appeals court in Smith noted that the supreme court "granted Williams leave to amend her complaint, implying that if she were able to allege a duty, she might be able to state a cause of action for failure to preserve evidence for civil litigation." Smith v. Superior Court (1984), 151 Cal.App.3d 491, 497, 198 Cal.Rptr. 829, 833.
An earlier California case had rejected claims of "evidence concealment" against a medical association because there must be an end to litigation and collateral attacks on judgments were impermissible. The Smith court stated: "However, [the] situation in the instant case is vastly different procedurally. The Smiths' case has not yet gone to trial, and therefore, no collateral ...