Appeal from the Circuit Court of Madison County. No. 96-L-560. Honorable Randall A. Bono, Judge, presiding.
The opinion of the court was delivered by: Justice Rarick.
Rule 23 Order filed April 27, 2001; Motion to publish granted June 7, 2001.
The third-party plaintiff, O'Brien Tire and Battery Service Center, Inc. (O'Brien), filed an action in the circuit court of Madison County against the third-party defendants, Dave Macios, doing business as Sugarloaf Landscape Nursery, and Country Mutual Insurance Company (Country Mutual), seeking damages for negligent spoliation of evidence. The trial court granted Macios' motion to dismiss and granted Country Mutual's motion for judgment on the pleadings. We reverse and remand the cause for further proceedings.
According to O'Brien's complaint, on September 27, 1994, Thomas Jones was killed when the left outer rear wheel of a truck owned by Macios separated from the vehicle and struck Jones's car. That same day, Tim Finley, a forensic engineer retained by Country Mutual, inspected the Macios vehicle and issued a report noting that the tire had been previously replaced by O'Brien. The report concluded that the left rear wheels were loose because the installer failed to properly tighten the lug nuts. In a letter dated October 12, 1994, Country Mutual advised Macios to preserve the wheel assembly for evidentiary purposes.
On February 28, 1995, Deborah Jones filed suit against Macios and Country Mutual. The case was settled on October 27, 1995. On August 30, 1996, Jones filed a complaint against O'Brien. During discovery, it was revealed that the wheel assembly had been taken to Patterson Tire Service by Macios and subsequently discarded. In its answer to the Jones complaint, O'Brien advanced as an affirmative defense the argument that Macios had discarded the wheel assembly before it could be examined by O'Brien and that Macios should have reasonably foreseen that the wheel assembly was material to a potential civil action arising from the incident.
O'Brien subsequently filed a two-count third-party complaint against Macios and Country Mutual, alleging negligent spoliation of evidence. Count I was directed at Macios, and count II was directed at Country Mutual. Count I of the complaint alleged that the wheel assembly was discarded or disposed of by Macios before it was examined by or on behalf of O'Brien, that Macios knew or should have known that the wheel assembly was material to a potential civil action arising from the accident, that Macios had a duty to retain this evidence, and that because of Macios' action, O'Brien was prejudiced in its efforts to defend itself because such evidence was unavailable for forensic analysis. On September 10, 1998, the trial court granted Jones's motion to sever the third-party complaint. On October 29, 1998, the trial court dismissed Jones's action against O'Brien pursuant to the settlement and stipulation of the parties.
On December 23, 1998, Macios filed a two-count motion to dismiss O'Brien's third-party complaint. Count I was brought pursuant to sections 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 1996)) and argued that O'Brien failed to allege a duty on the part of Macios to preserve the wheel assembly. Count II was brought pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 1996)) and argued that O'Brien's claim for spoliation of evidence was waived by virtue of the settlement of the Jones action. On April 29, 1998, the trial court granted the motion and dismissed O'Brien's action, finding that there was no duty owed by Macios to preserve the wheel assembly and that O'Brien had not sufficiently alleged the existence of any duty. The trial court did not address Macios' waiver argument. Country Mutual subsequently filed a motion pursuant to section 2-615 of the Code, seeking judgment on the pleadings. Country Mutual argued that the allegations contained in count II of O'Brien's complaint were substantially the same as those directed against Macios and that the trial court's ruling on Macios' motion to dismiss should be given the same force and effect as to Country Mutual. The trial court agreed and granted the motion.
On appeal, O'Brien argues that the trial court erred in ruling that Macios and Country Mutual had no duty to preserve the wheel assembly, because our supreme court held in Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 652 N.E.2d 267 (1995), that a claim for spoliation of evidence could be stated under existing negligence law.
When ruling on a motion to dismiss pursuant to section 2-615, the trial court must accept all well-pleaded facts as true and interpret all pleadings and supporting documents in a light most favorable to the nonmoving party. Jackson v. Michael Reese Hospital & Medical Center, 294 Ill. App. 3d 1, 689 N.E.2d 205 (1997). The motion should be granted only if the plaintiff can prove no set of facts that would support a cause of action on appeal. Beck v. Budget Rent-A-Car, 283 Ill. App. 3d 541, 669 N.E.2d 1335 (1996). The trial court's ruling is subject to de novo review. Joseph v. Chicago Transit Authority, 306 Ill. App. 3d 927, 715 N.E.2d 733 (1999). With these standards in mind, we turn to the merits of O'Brien's arguments.
In Boyd, Tommie Boyd was injured when a propane heater he was using during the course of his employment exploded. Boyd filed a workers' compensation claim against his employer, Superior Foods, and Travelers Insurance Company (Travelers), Superior Foods' workers' compensation insurance carrier. Travelers took possession of the heater in order to investigate Boyd's workers' compensation claim. When Boyd subsequently requested that the heater be returned to him, Travelers was unable to locate it. Boyd and his wife brought suit against Travelers and alleged negligent and intentional spoliation of evidence. Specifically, the Boyds alleged that Travelers' loss of the heater irrevocably prejudiced and adversely affected their product liability action against the heater's manufacturer. The trial court granted Travelers' motion to dismiss, finding that until the Boyds lost their products liability action against the manufacturer, they could not allege any actual injury and thus they could not state a cause of action. Boyd, 166 Ill. 2d at 192, 652 N.E.2d at 269.
On appeal, our supreme court held that while spoliation of evidence was not recognized as an independent tort, an action for negligence based upon spoliation of evidence could be stated under existing negligence law. After noting that there is no general duty to preserve evidence, our supreme court stated that such a duty could arise through an agreement, a contract, a statute, or another special circumstance. Moreover, the court noted, a defendant may voluntarily assume a duty by affirmative conduct. The court held that in any of these 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. Our supreme court held that taking possession of the heater while knowing that it was evidence relevant to future litigation was sufficient to create a duty on the part of Travelers to preserve the heater. Boyd, 166 Ill. 2d at 195, 652 N.E.2d at 271.
With respect to the elements of causation and damages, our supreme court rejected Travelers' position that the Boyds first had to lose their suit against the heater's manufacturer before they could properly allege these elements. The court held that all that was required was that the plaintiffs allege sufficient facts to support a claim that the loss or destruction of evidence caused the plaintiffs to be unable to prove an underlying lawsuit. Our supreme court concluded that the Boyds' complaint was sufficient to state a cause of action for negligence based upon spoliation of evidence, and it remanded the cause for a trial. Boyd, 166 Ill. 2d at 198, 652 N.E.2d at 272.
In the present case, O'Brien maintains that a special circumstance exists sufficient to impose upon both Macios and Country Mutual a duty to preserve the wheel assembly. With respect to Macios, O'Brien contends that he owned the truck and was in possession of the wheel assembly after the accident. O'Brien argues that a reasonable person in Macios' position would have recognized that the wheel assembly was material to a potential civil action arising from the incident. We agree.
In its third-party complaint, O'Brien alleged that Macios was in possession of the wheel assembly and that he knew or should have known that the wheel assembly was material to a potential civil action arising from the incident. Under Boyd, this ...