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Terry Martin et al v. Keeley & Sons

October 18, 2012


The opinion of the court was delivered by: Justice Burke

JUSTICE BURKE delivered the judgment of the court, with opinion.

Justices Freeman, Thomas, Garman, Karmeier, and Theis concurred in the judgment and opinion.

Chief Justice Kilbride dissented, with opinion.


¶ 1 This appeal involves the duty owed by a defendant in a claim for negligent spoliation of evidence. At issue is whether defendant, Keeley & Sons, Inc. (Keeley), a general contractor, had a duty to preserve a concrete I-beam which was involved in an accident resulting in injuries to several employees. The circuit court of St. Clair County entered an order granting summary judgment for Keeley, finding that Keeley had no duty to preserve the I-beam. The appellate court reversed. 2011 IL App (5th) 100117. We now reverse the appellate court and affirm the circuit court.


¶ 3 On May 29, 2001, plaintiffs, Terry Martin, Ardith Wynn, and Rickey Vanover, were working on the reconstruction of a bridge over Maxwell Creek on Illinois Highway 154 near Sparta, Illinois.

Plaintiffs were employed by Keeley, the general contractor for the bridge reconstruction project. While plaintiffs were installing a handrail on the bridge, a concrete I-beam used to support the bridge deck upon which plaintiffs were standing collapsed, causing plaintiffs to fall into the creek where they were injured. Following the incident, the Illinois Department of Transportation (IDOT) and the Occupational Safety and Health Administration (OSHA) inspected the accident site. On May 30, the day after the accident, Keeley destroyed the I-beam by breaking up the concrete portion of the beam with a hydraulic hammer.

¶ 4 Plaintiffs filed suit against Keeley, the manufacturer of the I-beam, Egyptian Concrete Company (Egyptian), and the designer of the bearing assembly that supported the I-beam, Allen Henderson & Associates, Inc. (Henderson). Plaintiffs' claims against Keeley were based on negligent spoliation of evidence. In their third amended complaint, plaintiffs alleged that Keeley owed a duty to retain the beam as evidence in potential litigation, that it breached its duty by destroying the beam, and that, as a direct and proximate result of the breach, plaintiffs were unable to prove their underlying claims against Egyptian and Henderson. Those underlying claims alleged negligent design and manufacture of the I-beam, negligent design of the bearing assembly, and failure to warn of the defects.

¶ 5 Egyptian and Henderson subsequently filed counterclaims against Keeley, which also included claims for negligent spoliation of evidence. They alleged that Keeley's failure to preserve the I-beam prejudiced them in their defense of plaintiffs' claims against them. All of the parties filed motions and cross-motions for summary judgment on the negligent spoliation of evidence claims. The parties submitted the following evidence through discovery depositions and other documents.

¶ 6 Martin, Wynn, and Vanover testified that they and two other employees were installing a handrail on the Maxwell Creek bridge. The five employees were standing on plywood decking that rested on three prestressed concrete I-beams. The beams were laid horizontally and were sitting on heavy rubber pads on top of concrete bases on either side of the bridge. The beams were not tied or connected to each other, nor were they tied to solid portions of the incomplete bridge structure. The workers installing the handrail were standing on or near the outer I-beam on the north side of the bridge.

¶ 7 Vanover testified that, at around 3:30 p.m., he "heard something pop." He then fell into the creek. Martin testified that, "there was a loud pop and the bridge just collapsed." Similarly, Wynn testified that he "heard a crack or a pop sound" before falling onto rocks in the creek. Wynn stated that, after he fell, he could see that the I-beam had broken in the center and was lying "like it [had] flipped over." He testified that he did not know whether the beam rolled and then broke, or broke and then rolled. Wynn testified that, prior to the accident, he noticed that the beam had "moved a little bit" when another worker walked on it. He also noticed that the rubber pad under one end of the beam did not appear to be large enough to support the beam.

¶ 8 Plaintiffs were transported to the hospital following the accident and were not aware of the I-beam's destruction until well after the beam had been destroyed.

¶ 9 Eugene Keeley, Keeley's president, testified that he learned of the accident at about 4:30 p.m. on May 29. He traveled to the accident site and proceeded to observe the site and take pictures of the site for about one and a half to two hours. Two other Keeley employees, construction superintendent Shawn Neuf, and engineer Richard Lehmann, also visually inspected the site. Keeley testified that he did not see any defects in the beam. He concluded that the beam had rolled over onto its side before it broke, based on the beam's position and the fact that it "failed right in the middle." Neuf testified that it was obvious from looking at the beam that the beam had rolled over onto its side before it broke.

¶ 10 Lehmann testified that he noticed nothing unusual about the beam itself based on his visual inspection of the I-beam. Lehmann stated that he performed some calculations in order to determine whether the approximate weight load of the employees on the bridge was great enough to cause the beam to roll over. Based on his calculations, Lehmann concluded that the employees' weight could have caused the beam to roll.

¶ 11 Keeley testified that Ron Lindenberg, the resident engineer for IDOT, also inspected the site on May 29. In a written diary entry for that date, Lindenberg wrote:

"An accident occurred at approximately 3:45 p.m. The exterior beam of stage 1 (Maxwell Creek) rolled over and threw 5 workers onto the riprap and into the creek. The I-beam was extensively damaged and will need replacing. Four workers treated and released from Sparta Hospital. Fifth worker kept overnight. Officer Donald McKinney of Illinois State Police on jobsite to investigate and file report."

¶ 12 Keeley testified that on May 30, the day after the accident, an OSHA representative inspected the site. The OSHA representative concluded that the beam had rolled, as evinced by statements made in an OSHA report, dated May 31, 2001:

"The Carp. foreman stated that he had not received any instruction regarding the installation of the scaffold and just presumed to install the scaffold as he had done previously on steel beams as the support structure. The scaffold collapsed when the concrete beam became overloaded due to the weight of the employees and scaffold platform, and the beam rolled over into the creek, platform and employees as well."

¶ 13 In October 2001, OSHA issued several citations and notifications of penalties to Keeley, noting in part that "[e]ach scaffold and scaffold component was not capable of supporting, without failure, its own weight and at least 4 times the maximum intended load applied or transmitted to it," and "the entire scaffold became overloaded and rolled into the creek below."

¶ 14 Following the OSHA inspection on May 30, Keeley told workers to break up the beam.*fn1 The beam was not moved from where it had fallen. Keeley employees broke up the concrete portion of the beam with a hydraulic hammer and left the concrete as "riprap," or large rocks, in the creek. The rebar was hauled to an auto shredder. The embeds-embedded steel plates on the ends of the beam-were saved and sent to Egyptian to be used in the manufacture of a replacement beam. Egyptian subsequently manufactured the replacement beam using the original embeds, based on the original shop drawings.

¶ 15 In his testimony, Keeley acknowledged that the beam could have been preserved by bringing in equipment to lift the beam and remove it from the site, or by using concrete saws to cut off the ends of the beam. Nevertheless, Keeley testified, he had several reasons for his decision to destroy the beam. First, he was informed by Egyptian that the replacement beam could be manufactured more quickly if they retrieved and sent the embeds to Egyptian as soon as possible.

Secondly, Keeley testified that Jerry Wibbenmeyer, the construction engineer from IDOT, advised that the beam needed to be removed from the creek to prevent a condition known as "scouring"-erosion caused by water washing up around the abutment. Finally, Keeley stated that he felt that the company had satisfied all of its obligations to IDOT and OSHA, that they had identified the cause of the accident, and that "it was just kind of a move-on-from-there situation."

ΒΆ 16 Keeley testified that he knew workers had been sent to the hospital and assumed there would be workers' compensation claims, but that a lawsuit "really didn't enter my mind at the time." Keeley stated he did not receive any requests ...

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