Appeal from Circuit Court of Cook County. The Honorable David G. Lichtenstein Judge Presiding.
The opinion of the court was delivered by: Justice Quinn
MODIFIED UPON REHEARING May 26, 2005
Plaintiff Steve Adams, both individually and as the special administrator for the estate of his wife, Dixie Adams, filed a three-count complaint against defendants Bath & Body Works, Inc. (BBW), Globaltech Industries, Inc. (Globaltech), and Sharon Kubasak (Kubasak), seeking damages from a fire that occurred in the house that he and his family had rented from Kubasak. Plaintiff alleged that a candle, manufactured by Globaltech and sold by BBW, was the cause of the fire. Asserted in his complaint were numerous claims for products liability, strict liability, and negligence against Globaltech and BBW. Plaintiff also asserted claims under Illinois' Smoke Detector Act (Smoke Detector Act) (425 ILCS 60/3 (West 1996)), against Kubasak based upon her failure to provide operating smoke detectors in the house. Each defendant filed cross-claims against each other seeking contribution, as well as counterclaims against plaintiff for negligently failing to preserve evidence. In addition, BBW filed a third-party complaint against Kubasak's insurer, State Farm Fire and Casualty Company (State Farm), for negligent spoliation of evidence.
The circuit court granted a motion filed by BBW and joined by Globaltech dismissing plaintiff's claims as a discovery sanction pursuant to Supreme Court Rule 219(c) (166 Ill. 2d R. 219(c)), for failing to preserve evidence. On appeal, plaintiff contends that the circuit court abused its discretion in dismissing his complaint as a discovery sanction. Plaintiff also argues that the circuit court erred in striking his experts' affidavits sua sponte due to a lack of foundation. For the following reasons, we reverse the judgment of the circuit court.
On June 17, 1997, a fire swept through the house that plaintiff and his family had rented from Kubasak in Oak Forest, Illinois. According to plaintiff's deposition, before going to bed on the night before the fire, he blew out several candles in the living room area of the house. One of those candles was a "Garden Lavender Botanical Candle," which was allegedly manufactured and designed by Globaltech and sold by BBW. Plaintiff suffered severe burns as a result of the fire; his wife, however, died from burns and smoke inhalation.
Six days after the fire, plaintiff retained counsel. Though both state and city fire inspectors were unable to pin down the cause of the fire, they were able to determine that the fire began near a couch located in the living room. Based upon comments he overheard from one of these inspectors, plaintiff's counsel removed two lamps that he believed were the potential impetus of the fire. After it was determined that these lamps were not the cause, plaintiff's focus shifted to a "Garden Lavender Botanical Candle" that he said was located on an end table near the couch in the living room.
At some point shortly after the fire, however, Kubasak hired Action Fire Restoration (Action Fire) to clean up the debris and repair the damage. State Farm paid Action Fire for its services. Unbeknownst to plaintiff, many of his belongings, including the end table and couch, plus the carpet that Kubasak owned, were removed and destroyed.
Also, shortly after the fire, State Farm retained Crawford & Company (Crawford) to examine the house and determine the extent of the damage. Crawford, in turn, hired Joe Mazzone to investigate the cause of the fire. In his deposition, Mazzone stated that, after ruling out the home's wiring, appliances, and fixtures, he believed one possible cause of the fire was a candle placed on the end table. Mazzone based this belief on the fact that the area in which these items were located contained the heaviest "char or burn marks," as well as plaintiff's statement to fire inspectors that he blew out a candle on the end table before going to bed on the night of the fire. Mazzone stated that both he and Donald Hitchcock, a fire investigator with the Illinois State Fire Marshall's office, "agreed that the place where the fire started was the table." Because the end table, couch, and carpet had been destroyed, however, there was no physical evidence that would either support or refute plaintiff's statement as to the candle's location. Plaintiff was not privy to Mazzone's report until December 1997, well after the end table, couch and carpet were destroyed.
On April 26, 1999, plaintiff filed suit. Though plaintiff initially named only BBW and Globaltech as defendants, he later filed a third-amended complaint on August 3, 2000, adding claims against Kubasak pursuant to the Smoke Detector Act. On February 20, 2002, BBW filed a motion to dismiss plaintiff's complaint or, alternatively, to bar plaintiff from introducing any evidence that a candle sold by BBW was involved in the fire as a sanction under Rule 219(c) for his failure to preserve either the end table, couch, or carpet. Globaltech joined BBW's motion for sanctions.
Both State Farm and Kubasak filed motions for summary judgment (735 ILCS 5/2-1005 (West 2000)) on the third-party complaint and counterclaims filed against them by BBW and Globaltech. On August 28, 2002, though the motions were fully briefed and argued before the circuit court, the court deferred ruling because discovery was still open. On October 9, 2002, after discovery had closed, the circuit court again heard arguments; two days later the court filed a written order dismissing plaintiff's complaint.
In its order, the court found "two separate grounds on which the within claims of plaintiff must be disposed:" (1) "plaintiff and his counsel had the opportunity and the responsibility to preserve relevant evidence and failed to do so and framed their theory of the case only after allowing relevant evidence over which they had control to be destroyed (Boyd v. Travelers Insurance Co., 166 Ill. 2d 188 (1995) and its progeny)" and (2) "plaintiff has offered no competent expert witness opinion testimony to present at trial with respect to cause and origin." The court found that the "[d]isposition of the claims of plaintiff has the practical effect of mooting out the other claims among and between the parties." The court also dismissed "[a]ny claims among and between those parties that are not technically moot" because "there remains nothing to try on any of the pending claims" after "the entry of an order barring the presentation of evidence that a defective garden lavender botanical candle manufactured by [Globaltech] and sold by [BBW]" was the cause.
Plaintiff filed a timely notice of appeal. In addition, BBW filed a cross-appeal, the resolution of which is "contingent upon this court's ruling on Plaintiff's appeal." Specifically, in its cross-appeal, BBW contends that, should this court reverse the circuit court's sanction of dismissal, it should reinstate BBW's counterclaims and third-party complaint. Moreover, BBW maintains that because Kubasak failed to file a similar cross-appeal, her counterclaims against BBW, Globaltech, and Adams are forfeited.