Appeal from the Circuit Court of Cook County No. 09 L 12140 Honorable Lynn M. Egan, Judge Presiding.
The opinion of the court was delivered by: Justice Palmer
JUSTICE PALMER delivered the judgment of the court, with opinion. Presiding Justice McBride and Justice Taylor concurred in the judgment and opinion.
¶ 1 Plaintiff Joyce Kilburg was injured while a passenger in a taxi. She filed a negligence and spoliation of evidence action against defendants Munawar Mohiuddin, Zante Cab Co., Inc. (Zante), Taxi Medallion Management, Inc. (Taxi Medallion), Taxi Affiliation Services, LLC (Taxi Affiliation), and Wolley Cab Association, Inc. (Wolley), doing business as Checker Taxi Affiliation, Inc. The trial court dismissed the spoliation claims against defendants pursuant to section 2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)). Plaintiff appeals, arguing the court erred in dismissing her spoliation claims because her complaint set forth sufficient facts to show that defendants had a duty to preserve the evidence. We affirm in part and reverse in part.
¶ 3 On October 6, 2009, at 10:30 p.m., plaintiff was injured when the taxi in which she was a passenger left the roadway and crashed into a tree. Mohiuddin was the driver of the taxi. Zante owned the taxi. After the accident, the Chicago police department towed the taxi to a Chicago auto pound. On October 8, 2009, Zante had the taxi towed to a lot at 949 Elston Avenue in Chicago. Taxi Medallion leased the lot from the lot's owner and stored taxis there. Taxi Affiliation paid the rent on the lot.
¶ 4 The taxi bore the insignia of Checker Taxi. Wolley, a taxi association, operated the Checker taxis in the City of Chicago. Zante had a written "Association Agreement" with Wolley "d/b/a Checker Taxi Affiliation, Inc." Under the agreement, Zante, identified as an independent contractor, paid Wolley a weekly "association fee" in exchange for a license to operate the taxi as a Checker taxi, radio dispatch services, insurance coverage for the taxi and assorted other services. The agreement provided that Wolley could terminate the agreement if Zante or its driver failed to notify Wolley "of any accident involving [Zante] and one of its taxicabs within one (1) hour following the occurrence of such accident."
¶ 5 On October 13, 2009, plaintiff filed a complaint against Mohiuddin, Zante and Checker Taxi Company, Inc., asserting that their negligence caused her injuries. Checker Taxi Company, Inc., ceased to exist in 1988. On October 15, 2009, the court granted plaintiff's emergency motion for an order of protection and production, ordering that Mohiuddin, Zante and Checker Taxi Company, Inc., "shall preserve and protect the [taxi] in its current condition and shall make it available to Plaintiff and her representatives ***. The vehicle shall not be driven, repaired, modified or moved without agreement of the plaintiff or prior order of Court."
¶ 6 Plaintiff amended her complaint numerous times, adding and dismissing parties and claims. On July 12, 2011, she filed the five-count, sixth amended complaint at issue here. Count I asserted a negligence claim against Mohiuddin and Zante. Counts II through V asserted claims for spoliation of evidence against Mohiuddin and Zante, Wolley, Taxi Medallion, and Taxi Affiliation. Only the four spoliation claims are at issue here.
¶ 7 In plaintiff's spoliation claim against Mohiuddin and Zante (count II), she asserted that Zante knew or should have known that Mohiuddin, Zante's agent and/or employee, had suggested that the cause of the crash was "sudden acceleration (i.e., the taxicab suddenly, unexpectedly and unintentionally accelerated)."*fn1 She asserted that, on October 6, 2009, the day of the crash, the taxi was equipped with an event data recorder with two component parts and that, "through October 8, 2009, both component parts of the Event Data Recorder were present." Plaintiff asserted that, on October 8, 2009, Zante and Mohiuddin possessed, controlled and had access to the taxi.
¶ 8 Plaintiff asserted that on October 9, 2009, her counsel had sent correspondence to Mohiuddin and Zante demanding that the taxi be preserved and protected.*fn2 She asserted that, on November 9, 2009, her counsel and consultants inspected the taxi in order to verify the claim of sudden acceleration by downloading the event data recorder information but they found the recorder missing. Plaintiff claimed that, if her counsel and consultants had been able to download the data and verify that the taxi experienced sudden acceleration, she "would have commenced with a product liability lawsuit."
¶ 9 Plaintiff asserted that Mohiuddin and Zante knew or should have known that the recorder was material evidence in the litigation regarding the taxi crash on the basis of (1) the October 9, 2009, correspondence from her counsel, (2) her October 13, 2009, complaint and (3) the court's October 15, 2009, order requiring preservation of the taxi. She asserted that Zante and Mohiuddin removed or allowed removal of the recorder between October 6, 2009, and November 9, 2009.*fn3 She claimed that, "[a]s a proximate result of [their] destruction, misplacement and/or loss of critical evidence, [she could not] succeed in proving a product liability lawsuit regarding sudden acceleration." Plaintiff asserted that, "[h]ad it not been for the destruction, misplacement and/or loss of the critical component of the Event Data Recorder, Plaintiff would have had a reasonable probability of succeeding in proving a product liability claim as Plaintiff's counsel's consultants could have verified that the taxicab experienced 'sudden acceleration' as a result of the defect."
¶ 10 In plaintiff's spoliation claim against Wolley (count III), she asserted that Zante operated the taxi as part of a "Wolley/Checker fleet of taxicabs," Mohiuddin was an agent and/or employee of Wolley/Checker and Wolley controlled the taxi. She asserted that, pursuant to Zante's agreement with Wolley, Zante notified Wolley of the accident and plaintiff's injuries on October 6, 2009, within an hour of the crash. Plaintiff alleged that Wolley knew of Mohiuddin's sudden acceleration assertion on or after October 6, 2009. She claimed that, on October 6, 2009, the taxi was equipped with an event data recorder with two component parts and "through October 8, 2009, both component parts of the Event Data Recorder were present."
¶ 11 Plaintiff asserted the taxi was relocated to the Elston lot on October 8, 2009, and that Wolley possessed, controlled and had access to the taxi on that date. Plaintiff alleged that Wolley knew or should have known that the event data recorder was material evidence in litigation regarding the crash through her counsel's correspondence, her initial complaint and the court's order of protection. She alleged that, between October 6, 2009, and November 9, 2009, Wolley removed or allowed the removal of the recorder.*fn4 Plaintiff claimed that, as result of Wolley's "destruction, misplacement and/or loss of the critical component" of the recorder, her reasonable probability of succeeding in proving a product liability claim was foreclosed.
¶ 12 In plaintiff's spoliation claims against Taxi Medallion in count IV and Taxi Association in count V, she asserted that Taxi Medallion leased the Elston lot on which the taxi was stored. She claimed that, pursuant to Taxi Medallion's lease agreement with the lot's owner, it was permitted to park vehicles in the lot and "was obligated to prevent 'anything to be done upon the property which in any way shall violate any federal, state or municipal law, ordinance or regulation.' " Plaintiff claimed that Taxi Affiliation, "an affiliated corporation of [Zante, Wolley and Taxi Medallion,] paid the rental fee to allow Taxi Medallion to use the lot.
¶ 13 The majority of plaintiff's assertions regarding Taxi Medallion and Taxi Affiliation were identical. In count IV, she asserted that Taxi Medallion "managed" the "Wolley/Checker fleet of taxicabs" and Zante notified Taxi Medallion and Wolley/Checker of the crash and injuries within the hour. In count V, she made the same assertions against Taxi Affiliation. In count IV, plaintiff asserted that Taxi Medallion controlled the lot, determined which vehicles in its fleet would be stored there and was obligated to ensure that the stored vehicles were safe from theft, tampering and destruction. She claimed that the taxi had both components of the event data recorder on October 6, 2009, and "at the time [it] was moved" to the Elston lot. She claimed that, "on October 8, 2009, and thereafter," the taxi was stored on the Elston lot and in the exclusive possession and control of Taxi Medallion. In count V, she made the same assertions regarding Taxi Affiliation.
¶ 14 In count IV, plaintiff asserted that Taxi Medallion knew of the sudden acceleration claim and that the data recorder was critical evidence. She asserted that, due to its corporate relationship with Zante and Wolley and its agreement to store the taxi, Taxi Medallion knew of the October 9 letter, October 13 complaint and October 15 court order "as it had voluntarily undertaken possession, control and responsibility for the subject taxicab and component parts, including the [data recorder] and its component parts." She asserted, "[a]lternatively, [Taxi Medallion] failed to enact a policy or procedure for identifying which vehicles at its storage lot were subject to Protective Orders and/or requests for preservation of evidence." She alleged that, between October 8, 2009, and November 9, 2009, Taxi Medallion removed or allowed the removal of a critical component of the data recorder and, as a proximate result, she could not succeed in her product liability lawsuit based on the taxi's "sudden acceleration." In count V, plaintiff made the same allegations regarding Taxi Affiliation.
¶ 15 Plaintiff attached to her complaint a copy of the association agreement between Zante and Wolley, a copy of the "early entry license agreement" between Taxi Medallion and the owner of the Elston lot allowing Taxi Medallion to occupy the lot and a copy of two checks from Taxi ...