Illinois courts have consistently refused to impose a general duty to preserve evidence. The Supreme Court has set forth a two-factor test for courts to apply in making the occasional exception to this rule: (1) “relationship” – an agreement, contract, statute, special circumstance or voluntary undertaking is such that a duty should be imposed; and (2) “foreseeability” – a reasonable person in defendant’s position would have foreseen that the particular evidence would be material to a potential lawsuit. This morning, the Illinois Supreme Court turned back an attempt to expand that two-factor test to so great a degree as to virtually impose a general duty to preserve evidence.
The case was Martin v. Keeley & Sons, Inc. Plaintiffs were working on the reconstruction of a bridge. Suddenly, the concrete I-beam supporting the plaintiffs collapsed, and the plaintiffs fell to the creek below and were injured. Immediately following the accident, the Illinois Department of Transportation and the Occupational Safety and Health Administration inspected the site. The day after the accident, the I-beam – still laying in the creek where it fell – was destroyed on the instructions of the plaintiffs’ employer, defendant Keeley.
In the weeks that followed, plaintiffs sued the manufacturer of the I-beam and the designer of the bearing assembly that supported the beam, alleging products liability claims. They also sued Keeley for negligent spoliation of evidence, and the other two defendants counter-claimed against Keeley on the same grounds. The Circuit Court dismissed all the claims against Keeley on summary judgment, but the Appellate Court reversed, finding that a reasonable person in Keeley’s position would have anticipated that the beam was material to a potential civil action.
By a 6-1 vote, the Supreme Court reversed the Appellate Court and affirmed the Circuit Court’s finding of no duty to preserve. According to the majority opinion by Justice Anne M. Burke, the defendant had not voluntarily undertaken to preserve the beam; the beam was not moved from the place where it fell before it was destroyed, and the defendant never attempted to make any tests on it.
Until today, Illinois courts have never specifically defined what sort of “special circumstances” might create a duty to preserve, so the majority considered the matter at some length. The Court rejected the view that mere possession or control of the evidence creates a duty, or that the defendant’s status as plaintiffs’ employer made a difference. Nor did the Court find any reason to impose a duty to preserve evidence simply on the grounds that the defendant was likely to wind up in litigation as a result of the accident.
Chief Justice Thomas L. Kilbride dissented, concluding that “special circumstances” had indeed been established. The Chief Justice found that given that the plaintiffs were hospitalized at the time the I-beam was destroyed, and the likelihood that litigation would follow, refusing to recognize a duty to preserve might give potential litigants the perverse incentive to destroy evidence before litigation in order to circumvent discovery or escape liability altogether.