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Kilburg v. Mohiuddin

Court of Appeals of Illinois, First District, Fifth Division

May 3, 2013

JOYCE KILBURG, Plaintiff-Appellant,
v.
MUNAWAR MOHIUDDIN, ZANTE CAB COMPANY, INC., a Corporation, TAXI MEDALLION MANAGEMENT, INC., TAXI AFFILIATION SERVICES, LLC, and WOLLEY CAB ASSOCIATION, INC., d/b/a Checker Taxi Affiliation, Inc., Defendants-Appellees.

Held [*]

In an action for the injuries plaintiff suffered when the taxi in which she was riding left the road and struck a tree, the dismissal of plaintiff’s spoliation of evidence claims against the owner and driver of the cab was reversed, since the owner and driver were aware of plaintiff’s request for the preservation of the cab, including the event data recorder, and the complaint sufficiently alleged facts establishing a duty on the part of the owner and the driver to preserve the cab and its contents, but the spoliation claims were properly dismissed as to the defendant entities involved in licensing and operating the cab in the absence of a showing that those entities knew of plaintiff’s request to preserve the cab.

Appeal from the Circuit Court of Cook County, No. 09-L-12140; the Hon. Lynn M. Egan, Judge, presiding.

Corboy & Demetrio, P.C., of Chicago (Daniel M. Kotin and William T. Gibbs, of counsel), for appellant.

Allen L. Wiederer, of Chicago, for appellees Munawar Mohiuddin and Zante Cab Company, Inc.

Hinshaw & Culbertson LLP, of Chicago (Steven R. Bonanno, Kimberly A. Jansen, and Anne C. Couyoumjian, of counsel), for appellees Taxi Medallion Management, Inc., Taxi Affiliation Services, LLC, and Wolley Cab Association, Inc.

Presiding Justice McBride and Justice Taylor concurred in the judgment and opinion.

OPINION

PALMER JUSTICE

¶ 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.

¶ 2 Background

¶ 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)."[1] 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.[2] 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.[3] 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.[4] Plaintiff claimed that, as a result of Wolley's "destruction, ...


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