Appeal from the Circuit Court of Lake County. No. 00--L--639 Honorable Henry C. Tonigan, III, Judge, Presiding.
The opinion of the court was delivered by: Justice Grometer
Plaintiff, James Andersen, filed a wrongful death, product liability, negligence, and survival action in connection with the death of his father, Daniel Andersen (Daniel), who was killed in a work-related accident. The complaint named Galbreath, Inc. (Galbreath), and Mack Trucks, Inc. (Mack), as defendants. This appeal arises from the dismissal, with prejudice, pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)), of Galbreath's second-amended third-party complaint for negligent spoliation of evidence against Daniel's employer, BFI Waste Systems of North America, Inc. (BFI). We affirm the portion of the order dismissing Galbreath's complaint. We reverse insofar as the dismissal is with prejudice and remand for further proceedings.
The original complaint alleged that Daniel was killed on February 14, 2000, when a hydraulic hose in the hoist mechanism of the truck he was operating for BFI ruptured, causing the mechanism to fail and the load to lower onto him. Mack manufactured the truck involved, and Galbreath manufactured the hoist mechanism. Galbreath filed a third-party complaint against BFI for contribution, on the basis that BFI had been negligent in its repair and maintenance of the equipment and in the training of its employees.
The court dismissed Galbreath's contribution complaint in accordance with the rule in Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155 (1991), when BFI agreed to release its workers' compensation lien. Galbreath then filed its first-amended complaint, which alleged that BFI's negligent loss of the truck and related equipment had impaired its ability to defend itself in the underlying suit. The court dismissed this complaint and Galbreath filed its second-amended complaint, which alleged essentially as follows.
The Waukegan police, the Occupational Safety and Health Administration (OSHA), and an engineering consulting firm, Triodyne Engineering, each investigated the accident that killed Daniel.
Three days after the accident, on February 17, 2000, BFI's Waukegan district manager wrote to Galbreath informing it of the fatality and requesting that a service representative inspect the equipment. The letter also informed Galbreath that BFI intended to place the equipment back in service on March 1, 2000.
On February 21, 2000, Galbreath's engineering manager made a "brief visual inspection" of the equipment at BFI's Waukegan facility. BFI had secured the truck and segregated it from other BFI trucks and equipment.
Some time "shortly after" the inspection, Galbreath sent the Waukegan district manager a letter requesting that he turn over evidence relating to Daniel's death, including the ruptured hose. Galbreath asked that the hose be preserved if it could not be turned over. We note that the letter is undated, and the date on which it was sent cannot be determined from the record.
On April 1, 2000, BFI sold the equipment to Onyx Waste Services, Inc. (Onyx). (Although it is not specifically alleged by Galbreath, we note that the record reflects that the equipment was sold as part of the sale of BFI's entire Waukegan operation to Onyx.)
BFI did not inform Galbreath of the sale of the equipment at the time the third-party complaint was filed and did not comply with discovery demands for the equipment. BFI first informed Galbreath of the sale of the equipment in a letter dated May 2, 2001.
Galbreath ultimately succeeded in locating the truck at the Onyx facilities, but the hoist and the hose were not recovered.
OSHA's report on the accident suggests that BFI had modified the truck, hoist, and hose.
Finally, Galbreath alleged that, had the equipment been preserved, it would have established the "lack of defect attributable to Galbreath and/or the merit of one or more affirmative defenses based upon third-party modification or other intervening causes. *** Absent that evidence, Galbreath may not be able to prove these defenses, and its ability to defend itself in the [u]nderlying [l]instigation has been impaired."
BFI moved to dismiss this complaint under section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615 (West 2000)). This motion was granted with prejudice. The order stated that the complaint had failed to allege a duty owed by BFI to Galbreath, the breach of such a duty, and the breach's proximate cause of damages to Galbreath. The trial ...