safety devices suggested by Allstate would not have prevented the catastrophic fire since they would not have interfered with the normal operation of the relief valve which is designed to vent in the event of overpressurization (as caused by the significant heating in this case).
Sunbeam has a major difficulty, however, in proving its theory: first, the second tank shown in the photographs, and clearly depicted on the video tape, cannot be found or examined. Second, the grill frame and wood accessories, which could have shown burn marks and patterns supporting Sunbeams theory, are also nowhere to be found. There is no secret, however, behind the absence of this evidence. Shortly after the fire, an Allstate investigator, in the performance of a fire investigation, preserved only the service tank that was connected to the grill, the connecting fittings, the remains of the regulator, and the remains of the burners (but not the separate third burner above the tank). He directed that everything else be thrown away, which included -- the third burner, the grill frame (the firebox had melted), any wood accessory remnants, and the second propane tank shown in the video tape and photographs. Sunbeam contends that the absence of this physical evidence cripples its defense. Since the evidence was discarded at Allstate's direction, Sunbeam asks the court to sanction Allstate by dismissing this suit.
Allstate responds that the lost evidence was not material because there was, in fact, no second tank near the grill. Allstate supports its denial of the existence of a second tank near the grill with eyewitness deposition testimony to the effect that only one tank was involved in the fire, and that the second tank on the premises was located a considerable distance away from the grill and was, in any event, empty. According to Allstate, in the confusion following the fire, somebody must have moved the second tank near the remains of the grill.
On the day of the hearing Allstate offered a motion in limine seeking to bar testimony concerning the possibility that a second tank caused the fire, contending that Illinois law prohibits the use of expert testimony to "reconstruct" an accident according to a hypothesis denied by all of the eyewitnesses. The motion was taken under advisement, and we will address it below.
III. TESTIMONY CONCERNING THE FIRE
With these theories in mind, we review the evidence. On the day of the fire, July 4, 1990, the Garcias' daughter and son-in-law, Lourdes and Bellarmino Sagols, were visiting them. Lourdes was sunbathing in a lounge chair in the backyard, while her son played in an above-ground swimming pool. The grill was located on a concrete patio and stood three or four feet from the back (east) wall of the house. To the north was a gangway between the Garcias' house and the neighboring house, and the back door of the house opened onto this walkway.
The grill had a large firebox and a hood that covered it. The gas burners in the firebox were covered by a layer of ceramic briquettes. There were control knobs in front of and underneath the firebox. On the left side of the grill was a propane cylinder mounted on a bracket and above it an additional gas burner similar to that on a kitchen range. The frame of the grill had an attached wooden front panel and was open on the other three sides. (See photograph of advertising material, Pl. Ex. B).
At approximately 11 a.m., Bellarmino Sagols lit the grill. After satisfying himself that the grill was lit and working properly, he left to go to the store. About ten minutes later, Lourdes happened to see flames coming from the grill, and went over to see what was wrong. Her deposition testimony is equivocal as to where the flames were coming from. This is partly because the deposition transcript indicates that she pointed to photographs, with no record of where she was pointing, but it also appears she was uncertain. At first, she indicated that the flames came from below the tank: "They were coming from underneath over here (indicating). From the back part underneath the tank." (Lourdes Dep. at 21). Later, after a question from the Garcias' counsel, she said they came from the top of the tank: