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Patricia Combs, As Personal v. Gary Schmidt

September 12, 2012


Appeal from the Circuit Court of Winnebago County. No. 01-L-479 Honorable Eugene G. Doherty, Judge, Presiding.

The opinion of the court was delivered by: Justice Hudson

JUSTICE HUDSON delivered the judgment of the court, with opinion. Justice Zenoff concurred in the judgment and opinion.

Justice Burke specially concurred, with opinion.



¶ 2 Plaintiff, Patricia Combs, in her capacity as the personal representative of the estates of Harvey Combs, Trenell Combs, and Niesha Combs (who are deceased), appeals an order of the circuit court of Winnebago County granting summary judgment in favor of defendants, Gary Schmidt, Cynthia Schmidt, and Pekin Insurance Company, regarding three counts of a complaint filed by Patricia. These counts allege spoliation of evidence. For the reasons that follow, we reverse and remand.


¶ 4 Patricia lived in a house located at 3614 West State Street in Rockford with her husband, Harvey, and her children, Trenell and Niesha. The family rented the house from Gary and Cynthia Schmidt. The house was insured by a policy issued by Pekin. On December 20, 1999, the house caught fire. Harvey, Trenell, and Niesha died in the blaze.

¶ 5 The Schmidts had owned the house since 1994. The electrical system had been installed in the 1940s or 1950s. It consisted, in part, of an older type of Romex-style wiring and an older electrical panel that used screw-in fuses rather than circuit breakers. The Schmidts' first tenant, Lisa Lewis, reported an electrical problem in the basement. Their second tenants, Carolyn and Edward Anderson, testified that the lights would flicker and fuses would blow. They informed the Schmidts of these problems. The Combses were the next tenants. Patricia testified that her family experienced problems with the electrical system similar to those experienced by the Andersons. Cynthia Schmidt told Patricia that she would send an electrician to repair the system, but she never sent one.

¶ 6 Thomas Hinton, a retired life insurance agent who knew the Combs family, reported that he visited the Combses' house at 5:15 p.m. on the day of the fire. He observed the lights flickering. Patricia was not home at the time. Hinton returned about 20 minutes later, and he noted that the lights were still flickering. The fire occurred at about 9 p.m. while Patricia was at work.

¶ 7 The Rockford fire department investigated the fire. Patricia informed the department of the electrical problems with the house. Patrick Keehnen, an investigator from the department, explained that the department's investigation of a fire is limited to determining whether the cause of the fire was intentional, accidental, an act of God, or undetermined. The department generally leaves further investigation to interested parties. Keehnen believed that the "fire scene suggest[ed] a possible electrical cause, but due to the extensive damage, the specific cause was not identified." Keehnen also reported that the house's wiring was a "potential" cause of the fire. Pekin conducted an investigation as well. The Schmidts executed a document allowing Pekin to enter the property, conduct an investigation, and remove evidence (hereinafter, the consent agreement). In the course of these two investigations, a section of wiring from the living room and some smoke alarms were preserved. Robert Avery, a supervisor from Pekin, testified that, based on Pekin's investigation, he believed that an electrical problem was the "most probable" cause of the fire. He also concluded that there did not appear to be any liability on the part of the Schmidts.

¶ 8 On January 11, 2000, the City of Rockford building department issued a demolition order to the Schmidts, stating that the building was an unsafe structure. The Schmidts informed Pekin of the order. Gary Schmidt testified that, as the City of Rockford had told him that the house had to be demolished, he contacted a contractor and authorized the demolition. Pekin paid for the demolition. The house was demolished on February 16, 2000. There is ample evidence in the record to conclude that, had anyone sought an extension of time to allow all parties to inspect the house, the request would have been granted. Kim Mniszewski, a professional fire investigator, testified that, because of the lack of evidence, he could not formulate an opinion regarding the cause of the fire.

¶ 9 Patricia set forth significant evidence regarding defendants' control over the fire scene: Pekin's internal policies regarding how to proceed following a fire, which include giving notice to interested parties, conducting an investigation, and handling evidence, and industry standards concerning such issues. We will not set forth this evidence here; rather, we will discuss it as it pertains to the issues raised by the parties. The trial court granted summary judgment in favor of defendants, holding that they owed no duty to Patricia to preserve the fire scene or notify her of its impending destruction. Patricia now appeals.


¶ 11 The principal issue raised in this appeal-upon which the trial court granted summary judgment-is whether under existing law defendants had a duty to preserve the fire scene for Patricia's benefit. Alternatively, she asks that, as a matter of public policy, we impose such a duty. Patricia also contends that the trial court's conclusion that no such duty existed violates the law-ofthe-case doctrine. Finally, she asserts that she should have been granted leave to amend her complaint a sixth time.

¶ 12 The first three issues are subject to de novo review. Empress Casino Joliet Corp. v. Giannoulias, 231 Ill. 2d 62, 69 (2008) (summary judgment); Vancura v. Katris, 238 Ill. 2d 352, 373-74 (2010) (existence of a duty); In re Christopher K., 217 Ill. 2d 348, 363-64 (2005) (law-of-the-case doctrine). Therefore, we owe no deference to the trial court on these issues (Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 595 (2011)), and we may freely disregard its judgment and substitute our own (People v. Davis, 403 Ill. App. 3d 461, 464 (2010)). However, to the extent that the existence of a duty depends on issues of disputed fact, such decisions should be committed to the trier of fact. Martin v. Keeley & Sons, Inc., 2011 IL App (5th) 100117, ¶ 25. The final issue is reviewed for an abuse of discretion (I.C.S. Illinois, Inc. v. Waste Management of Illinois, Inc., 403 Ill. App. 3d 211, 218 (2010)), which means that we will disturb the trial court's decision to deny leave to amend the complaint only if no reasonable person would agree with the decision (1515 North Wells, L.P. v. 1513 North Wells, L.L.C., 392 Ill. App. 3d 863, 870 (2009)). With these standards in mind, we now turn to Patricia's arguments.

¶ 13 A. Duty

¶ 14 Patricia first argues that the trial court erred in holding that defendants did not owe her a duty to preserve the fire scene or notify her of its impending destruction so that she could conduct an investigation of it. The trial court granted summary judgment, finding that no such duty existed. Summary judgment is proper where there are no disputed issues of material fact and the movant is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2010). It is a drastic remedy that should be granted only when the movant's right to prevail is clear and free from doubt. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004). The record, and all reasonable inferences that can be drawn therefrom, must be construed strictly against the movant and liberally in favor of the opponent of the motion. Id. Nevertheless, summary judgment can also provide an expeditious process to dispose of a lawsuit, and, to that end, it is to be encouraged. Id. As noted above, our review is de novo. Id.

ΒΆ 15 We will begin by setting forth the law as it pertains to a party's potential duty to preserve evidence. Spoliation of evidence is not an independent tort; rather, it is a subspecies of negligence. Burlington Northern & Santa Fe Ry. Co. v. ABC-NACO, 389 Ill. App. 3d 691, 711 (2009). Thus, a plaintiff must plead and prove the traditional elements of a negligence action-duty, breach, causation, and damages. Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 194-95 (1995). At issue in this case is duty. Generally, no duty exists to preserve evidence. Thornton v. Shah, 333 Ill. App. 3d 1011, 1020 (2002). However, a duty can arise by virtue of a contract, an agreement, a statute, or some other special circumstance. Boyd, 166 Ill. 2d at 195. Additionally, through affirmative conduct, a party may voluntarily assume a duty to preserve evidence. Id. Any of these considerations can establish the requisite relationship between the parties to impose a duty, and they have come to be known as the relationship prong of the inquiry. Dardeen v. Kuehling, 213 Ill. 2d 329, 336 (2004). A plaintiff ...

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