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January 19, 1995


Chief Justice Bilandic delivered the opinion of the court: Justice Heiple, dissenting: Justice Harrison joins in this dissent.

The opinion of the court was delivered by: Bilandic

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 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 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.


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 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 ...

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