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JOHNSON v. FORD MOTOR COMPANY INC.

January 29, 2004.

LANCELOT JOHNSON, ROBERT JOHNSON, and MARK WILLIAMS, Plaintiffs,
v.
FORD MOTOR COMPANY, INC. and HERTZ CORPORATION, INC., Defendants



The opinion of the court was delivered by: JOHN W. DARRAH, District Judge

MEMORANDUM OPINION AND ORDER

The Plaintiffs, passengers in an accident involving a Ford Excursion, sued Defendants, Ford Motor Company, Inc. ("Ford") and Hertz Corporation, Inc. ("Hertz"), for injuries resulting from the accident. Presently before the Court is Hertz's Motion to Dismiss Count IV of Plaintiffs' First Amended Complaint Pursuant to Rule 12(b)(6). For the foregoing reasons, that motion is denied.

LEGAL STANDARD

  In reviewing a motion to dismiss, the court reviews all facts alleged in the complaint and any reasonable inferences drawn therefrom in the light most favorable to the plaintiff. See Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000). A plaintiff is not required to plead the facts or elements of a claim, with the exceptions found in Federal Rules of Civil Procedure 9. See Swierkiewicz v. Sorema, 534 U.S. 506, 511 (2002); Walker v. Thompson, 288 F.3d 1005, 1007 (7th Cir. 2002). Dismissal is warranted only if "it appears Page 2 beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The "suit should not be dismissed if it is possible to hypothesize facts, consistent with the complaint, that would make out a claim." Graehling v. Village of Lombard, Ill., 58 F.3d 295, 297 (7th Cir. 1995).

  BACKGROUND

  The pertinent facts, for the purposes of this motion, are taken as true from Plaintiffs' Amended Complaint. Plaintiffs are all citizens of Illinois. Hertz is incorporated in Delaware and does business in Cook County, Illinois,

  On August 20, 2000, Plaintiffs were passengers in a Ford Excursion that allegedly rolled over because of a defective right-rear tire valve-stem. After the accident, Hertz had the vehicle towed to the Hertz storage facility in Kentucky for storage and safekeeping. The only persons with day-to-day access to the vehicle were Hertz employees, agents, and servants. Access to the vehicle by outsiders, including experts, was allowed only after authorization by Hertz.

  Shortly after Hertz took possession of the vehicle, Hertz employees were told that the vehicle was subject to an internal "legal hold" because of a pending legal action. Hertz was prohibited from altering, removing, or disposing of the vehicle, including the right-rear passenger-side tire, wheel, and valve-stem assembly.

  In the early part of 2003, Hertz allowed its mechanic to install a new valve-stem assembly in the right-rear passenger side of the vehicle. Hertz did not seek court approval to make such an alteration nor did Hertz inform Plaintiffs of the alteration. Because of the alteration of the vehicle, Plaintiffs' tire experts' testimony regarding the precise condition of the valve-stem and its involvement in the accident will be substantially limited. Page 3

  ANALYSIS

  Hertz asserts two bases for dismissing the negligent spoliation claim in its motion. First, Hertz contends that Kentucky law applies to the negligent spoilation claim and that Kentucky law does not recognize this tort. Secondly, Hertz argues that Plaintiffs knew about the negligent spoilation claim in April of 2003 and that Plaintiffs failed to amend their complaint in a timely manner.

  Choice of Law

  Kentucky law does not recognize a claim for negligent spoilation of evidence. Monsanto Co. v. Reed, 950 S.W.2d 811, 815 (Ky. 1997). Previously, it was determined by this Court that, except for one limited issue, Illinois law will apply to this matter. See Johnson v. Ford Motor Co., 2003 WL 22317425 (N.D. Ill. Oct. 9, 2003). However, as Plaintiffs concede, that ruling did not address Plaintiffs' later claim for negligent spoilation in the Amended Complaint.

  In a diversity action, a district court applies the choice-of-law principles of the state where it sits. Klaxon Co. v. Stentor Elec. Mfg, Co., 313 U.S. 487, 496 (1941); Ruiz v. Blentech Corp., 89 F.3d 320, 323 (7th Cir. 1996). Illinois is governed by the choice-of-law principles in the Restatement (Second) of Conflicts of Law ("Second Restatement"). Ingersoll v. Klein, 262 N.E, 2d 593, ...


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