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Gerard v. Conagra Foods

April 28, 2010


The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer


Plaintiff Greg Gerard, a warehouse worker for Defendant ConAgra Foods, was injured in an on-the-job forklift accident. He brought suit in state court against Yale Materials Handling Corp., a business name used by Nacco Materials Handling Group, Inc., the company he believed had manufactured the forklift. Nacco removed the case to federal court and filed a Third-Party Complaint alleging that Defendant's negligence contributed to Plaintiff's injuries. The parties devoted extensive effort in discovery to identify the manufacturer of the forklift involved in the accident. Those efforts were unsuccessful, however, and after the court granted summary judgment in favor of Nacco, Plaintiff filed an amended complaint against Defendant, alleging a claim for spoliation of evidence. Defendant now seeks summary judgment in its favor on that claim and, for the reasons that follow, the motion is granted.


On April 5, 2005 Plaintiff was walking through a loading area at Defendant's St. Charles warehouse when he was hit by a lift truck*fn2 driven by one of his co-workers. (Def's 56.1(a)(3) ¶¶ 11- 12.) Plaintiff testified that the truck hit him in the back, knocked him to the ground, and then drove over his right leg, causing fractures to some of his right foot's metatarsal bones. (Gerard Dep., Def's Ex. E, at 89-91.) Following corporate policy, Defendant conducted an investigation into the accident, which including investigating the scene and interviewing witnesses. (Def's 56.1(a)(3) ¶¶ 49-56.) The investigation also included an inspection of the lift truck by an outside maintenance company; the inspection found no problems with the lift truck's operation. (Id. ¶ 61.) In a report, Defendant concluded that the lift truck had no defects and that congestion and tight traffic patterns contributed to the accident. (Def's Ex. O.) An addendum to the report included several recommendations for preventing future accidents, several of which were in fact implemented. (Def's Ex. P; Def's 56.1(a)(3) ¶¶ 62-63.) The initial report is dated April 5, 2005, the date of the accident, and the addendum is dated April 6, 2005. (Def's Ex. P, O.) Defendant reported the accident to the Occupational Safety and Health Administration ("OSHA"), which did not investigate. (Def's 56.1(a)(3) ¶ 64.) On May 16, 2005, Plaintiff filed a workers' compensation claim against Defendant, eventually recovering an award of $38,011.34. (Def's Ex. F.)

Some time after the accident, the lawyer representing Plaintiff in the worker's compensation case asked to inspect the lift truck involved in the accident. (Feb. 17, 2006 letter from John O'Connor, Ex. 1 to Pl.'s Memorandum in Opposition to Motion for Summary Judgment [83].) The record does not reveal when the request was made, but it must have been prior to February 17, 2006 (about ten months after the accident) because that is the date of the letter responding to the request. (Id.) In that letter, a lawyer for Defendant explained that four similar lift trucks where being used in the warehouse at the time of the accident. (Id.) Of those trucks-designated WH1, WH2, WH3, and WH4-Defendant had been able to rule out only WH3 from involvement in the accident. (Id.) Defendant offered Plaintiff's lawyer the chance to inspect WH1, a lift manufactured by Caterpillar, and WH2, manufactured by Yale, but explained that WH4, another Yale lift, had been returned to the lessor when that company went out of business. (Id.)

As reflected in other letters in the record, the lawyer representing Plaintiff in his products liability case did inspect the lift trucks on April 4, 2006. (May 15, 2006 letter from Richard Rosenblum; June 28, 2006 letter from G. Steven Murdock, Pl.'s Ex. 1.) Some weeks after that inspection, on May 15, 2006, Plaintiff's lawyers made a written request for identifying information about the lift truck designated WH4, the truck that was no longer in Defendant's possession. (Id.) In a letter dated June 28, 2006, Defendant's lawyer responded with information about lift truck WH4 furnished by Elizabeth Joy Klages, Defendant's Safety Intern, who acquired it from Defendant's maintenance department. (Id.; Def's 56.1(a)(3) ¶ 31.) Klages testified that she was not asked to identify the serial number for the lift truck involved in the accident until June 2006. (Def's 56.1(a)(3) ¶ 32.)

The May 15 letter from Plaintiff's lawyer also requested any documents completed by Rich Boulay, the lift truck driver involved in the accident. (Letters, Pl.'s Ex. 1.) Defendant's lawyer responded that Boulay should have completed a "Safety Sheet" on the day of the accident, but for some reason one could not be found. (Id.) In his deposition, Boulay recalled that he had filled out a pre-operation checklist the day of the accident and put it in the office of his supervisor, Jim Dinges. (Def's 56.1(a)(3) ¶¶ 14-15.) Dinges testified that this was standard procedure; after a lift operator gave him a checklist, he would review it and pass it on to the mechanical department. (Id. ¶¶ 16-18.) Dinges recalled seeing the checklist for the truck that Boulay drove on the day of the accident and he believed that a plant manager reviewed it after the accident before returning it to him. (Id. ¶¶ 21-23.) Klages testified that the checklist should have been retained because of the accident and the investigation. (Klages Dep., Def's Ex. I, at 64.) She also testified that an unsigned and undated checklist was in the investigation file, but she did not know how it got there. (Id. at 65.) That checklist is for lift truck WH4. (Def's Ex. K.) Plaintiff believes that the incomplete checklist in the file cannot be the checklist that Boulay filled out because Dinges testified that Boulay's checklist from the day of the accident was properly filled out. (Dinges Dep., Def's Ex. H, at 58.) The investigation report also states that Boulay filled out the checklist correctly at the start of his shift. (Def's Ex. O.)

Boulay testified that he did not know the serial number of the truck he drove on the day of the accident but he believed it was identified internally as WH4. (Def's 56.1(a)(3) ¶ 25.) Plaintiff himself recalled asking Boulay which truck he had been driving and testified that to the best of Plaintiff's recollection, Boulay told him he had been driving WH4. (Gerard Dep., Def's Ex. E, at 78.) Presumably based on that representation, Plaintiff filed a state lawsuit on August 30, 2006 against Yale Materials Handling Corp., the entity he believed had manufactured the lift truck designated WH4. The complaint sought recovery on products liability and negligence theories. Nacco, which uses Yale Materials Handling Corp. as a business name, removed the case to federal court*fn3 and filed a Third-Party Complaint against ConAgra on the theory that ConAgra's negligence contributed to the accident. (Def's 56.1(a)(3) ¶¶ 4-5.)

After extensive discovery, Plaintiff has conceded that he is unable to identify the make, model, or serial number of the lift truck involved in the accident. (Pl's Mot. for Leave to File Amended Complaint [55] ¶ 5.) The court granted Nacco's unopposed motion for summary judgment and also granted Plaintiff's request for leave to file an amended complaint against ConAgra, asserting a claim for spoliation of evidence. (Order of July 20, 2009 [61].) ConAgra now moves for summary judgment on the spoliation claim.


Summary judgment should be granted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). Once the moving party has set forth the basis for summary judgment, the burden shifts to the nonmoving party, who must go beyond mere allegations and "set out specific facts showing a genuine issue for trial." FED. R. CIV. P. 56(e)(2). "On a motion for summary judgment, the district court must construe all facts and draw all reasonable inferences in favor of the non-movant." Srail v. Village of Lisle, 588 F.3d 940, 948 (7th Cir. 2009).

Illinois law does not recognize a tort of intentional spoliation of evidence, and it treats negligent spoliation as a type of negligence rather than an independent tort. Borsellino v. Goldman Sachs Group, Inc., 477 F.3d 502, 509-10 (7th Cir. 2007); Boyd v. Travelers Insurance Co., 166 Ill.2d 188, 192-93, 652 N.E.2d 267, 269-70 (1995). To prevail in a negligence claim for spoliation, Plaintiff must establish a duty to preserve evidence, a breach of that duty, causation, and damages. Boyd, 166 Ill.2d at 194-95, 652 N.E.2d at 270-71. The Illinois Supreme Court has described the duty inquiry as governed by a two-prong test. The "relationship" prong of the test requires the court to "determine whether such a duty arises by agreement, contract, statute, special circumstance, or voluntary undertaking." Dardeen v. Kuehling, 213 Ill.2d 329, 336, 821 N.E.2d 227, 231 (2004). If so, the "foreseeability" prong, asks whether the duty extended to the evidence at issue, that is, "whether a reasonable person should have foreseen that the evidence was material to a potential civil action." Id.

Plaintiff argues that Defendant assumed a duty to preserve evidence by voluntarily segregating the lift truck and by carrying out its own policy requiring investigation of the accident. (Pl's Br., at 11-13.) A party's voluntary undertaking to preserve evidence for its own benefit does impose a "duty to continue to exercise due care to preserve the evidence for the benefit of any other potential litigants." Jones v. O'Brien Tire & Battery Service Center, Inc., 374 Ill. App. 3d 918, 927, 871 N.E.2d 98, 107-08 (5th Dist. 2007). In Jones, a duty arose when the defendant, for its own benefit, instructed its insured not to destroy evidence from an accident. Id.; see also Stoner v. Wal-Mart Stores, Inc., No. 06-4053, 2008 WL 3876077, at *4 (C.D. Ill. Aug. 18, 2008) (duty to preserve evidence where store employees knew of a video tape containing footage of plaintiff's trip-and-fall and employees took steps to preserve it). The rule of Jones is in accord with the Illinois Supreme Court's holding in Boyd that a duty to preserve evidence arose where employees of the defendant took a heater belonging to the plaintiff to investigate the plaintiff's workers' compensation claim, knowing that the evidence was relevant to future litigation. Boyd, 166 Ill.2d at 195, 652 N.E.2d at 271. Thus, by investigating the accident for its own benefit, Defendant assumed a duty to preserve evidence. Plaintiff has satisfied the relationship prong of the duty inquiry.

The foreseeability prong of the inquiry asks whether the materiality of the evidence to a potential civil action was foreseeable to a reasonable person. The evidence that Plaintiff argues should have been preserved is the lift truck itself and the pre-operation checklist.*fn4 (Pl's Br., at 11.) In light of the severity of his injury and the extensive investigation that Defendant undertook, Plaintiff urges, a reasonable person would have foreseen that the lift truck and the checklist were material to a potential civil action. (Id. at 12-13.) In arguing against foreseeability, Defendant notes the distinction between Plaintiff's workers' compensation claim and his civil suit. (Def's Br., at 8-9; Def's Reply Br., at 9-11.) Indeed, in a spoliation case growing out of an unsuccessful claim under the Workers' Compensation Act, the Illinois Appellate Court concluded that because the Act did not require the defendant employer to preserve the records in question, "a reasonable person in defendants' position would not have foreseen that the records would be material to a potential civil suit." Chidichimo v. University of Chicago Press, 289 Ill. App. 3d 6, 11, 681 N.E.2d 107, 128 (1st Dist. 1997). ...

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