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Dardeen v. Kuehling

November 21, 2003

JAMES E. DARDEEN, PLAINTIFF-APPELLANT,
v.
ALICE KUEHLING AND THE CITY OF MT. CARMEL, DEFENDANTS, AND STATE FARM INSURANCE COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Wabash County. No. 00-L-8 Honorable Robert M. Keenan, Jr., Judge, presiding.

The opinion of the court was delivered by: Justice Goldenhersh

UNPUBLISHED

The plaintiff, James E. Dardeen, appeals from an order of the circuit court of Wabash County entering a summary judgment in favor of the defendant, State Farm Insurance Company (State Farm), on the plaintiff's claim for negligent spoliation of evidence. We reverse and remand for further proceedings.

FACTS

According to the plaintiff's complaint, on September 1, 1999, he sustained personal injuries while delivering newspapers with his daughter when he fell in a hole on a brick sidewalk. The sidewalk was located in Mt. Carmel on the property of Alice Kuehling. The plaintiff landed on his right elbow. The plaintiff and his daughter described the hole in which he fell as approximately 12 inches wide and 4 to 6 inches deep, "the size of a dinner plate." Because it was not yet light at the time the plaintiff fell, the plaintiff bent down close to the hole to get a better look. The plaintiff also returned to the accident site that evening with his neighbor, Harry. The plaintiff said the brick sidewalk looked the same as it did earlier in the day when he fell.

The plaintiff's daughter called Alice Kuehling the day of the accident, notified her of the accident, and requested the name of her insurance company. Kuehling's property was insured by State Farm. The plaintiff also told Kuehling about his fall when he returned later in the evening with his neighbor. Kuehling's daughter and son-in-law were present at the evening meeting and saw the condition of the area in which the plaintiff fell.

On the day of the accident, Kuehling reported the plaintiff's fall to her State Farm insurance agent, Ronald Couch. Kuehling told Couch that the bricks were "cocked up" in the area where the plaintiff had fallen and she asked Couch if she could remove those bricks so that no one else would get hurt. Kuehling said some of the bricks were raised more than others, causing the sidewalk to be uneven. According to Kuehling, Couch told her she could remove the bricks. Kuehling does not remember exactly when she began removing the bricks, but she said it was less than a week after the plaintiff fell. Kuehling removed somewhere between 25 and 50 bricks. Prior to removing the bricks, Kuehling did not photograph or videotape the area of the brick sidewalk where the fall occurred. Likewise, the plaintiff did not photograph the accident site, although the plaintiff's wife did photograph his injuries in contemplation of litigation.

The plaintiff returned to Kuehling's property about a month after he fell. He was accompanied by David Satz, Kuehling's neighbor. The plaintiff noticed that bricks had been moved from the area in which he fell. Four photographs of the area in question were taken by an unknown photographer on September 7, 1999. These photographs are in the record. The photographs show that the bricks had already been removed six days after the plaintiff fell. These photographs have a number written across them that appears to be an insurance claim number.

On August 1, 2000, the plaintiff filed a complaint against Kuehling and the City of Mt. Carmel for personal injuries he received as a result of the fall. The count against Mt. Carmel was later voluntarily dismissed by the plaintiff. The plaintiff alleged that his injury was caused by Kuehling's failure to repair the hole in the brick sidewalk and/or failure to warn others that the hole existed. Kuehling has defended the lawsuit by denying that a hole existed.

On May 25, 2001, the plaintiff filed a motion for leave to file a second amended complaint, which was granted by the court, to add counts against both Kuehling and State Farm for negligent spoliation of evidence. The plaintiff alleged that Kuehling's brick sidewalk was material evidence in the personal injury suit and that State Farm had a duty to preserve the sidewalk when it became aware of the plaintiff's claim via its agent, Ronald Couch. The plaintiff further alleged that State Farm breached its duty when Couch, "acting within the course and scope of the agency," authorized Kuehling to remove the bricks without first taking pictures or videotaping the area where he fell. He alleged that the removal of the bricks changed the appearance of the accident site and destroyed material evidence in his personal injury case against Kuehling.

On January 24, 2002, State Farm filed a motion for a summary judgment on count IV of the plaintiff's second amended complaint. Count IV alleged negligent spoliation of evidence by State Farm. On April 30, 2002, the trial court granted State Farm's motion for a summary judgment. The plaintiff now appeals. Kuehling takes no part in this appeal, and therefore, the counts against Kuehling remain.

ANALYSIS

The standard of review on a trial court's granting of a summary judgment is de novo. Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 390, 620 N.E.2d 1073, 1077 (1993). Although the use of a summary judgment aids the expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation. Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871 (1986). Therefore, the reviewing court must examine the affidavits, pleadings, admissions, and depositions on file and construe the evidence strictly against the moving party. In re Estate of Hoover, 155 Ill. 2d 402, 410-11, 615 N.E.2d 736, 739-40 (1993). A summary judgment is only appropriate if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Crum & Forster Managers Corp., 156 Ill. 2d at 390-91, 620 N.E.2d at 1077. With this in mind, we examine the parties' arguments on appeal.

The plaintiff argues there is evidence that State Farm should have foreseen that Kuehling's brick sidewalk was material to a potential civil action and that the destruction of the sidewalk could mean that the plaintiff would be unable to prove his personal injury lawsuit. The plaintiff insists that the summary judgment should be reversed and the cause remanded for a jury trial on all the issues. State Farm replies that it did not owe a duty to the plaintiff to preserve the evidence and that even ...


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