{ "id": 126356, "name": "DEBORAH L. JONES, Indiv. and as Special Adm'r of the Estate of Thomas R. Jones, Deceased, Plaintiff, v. O'BRIEN TIRE AND BATTERY SERVICE CENTER, INC., Defendant and Third-Party Plaintiff-Appellant (Dave Macios, d/b/a Sugarloaf Landscape Nursery, et al., Third-Party Defendants-Appellees)", "name_abbreviation": "Jones v. O'Brien Tire & Battery Service Center, Inc.", "decision_date": "2001-06-07", "docket_number": "No. 5 \u2014 99\u20140494", "first_page": "418", "last_page": "425", "citations": [ { "type": "official", "cite": "322 Ill. App. 3d 418" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "722 N.E.2d. 1167", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "309 Ill. App. 3d 707", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 349546 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/ill-app-3d/309/0707-01" ] }, { "cite": "715 N.E.2d 733", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "306 Ill. App. 3d 927", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1336127 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/ill-app-3d/306/0927-01" ] }, { "cite": "669 N.E.2d 1335", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "283 Ill. App. 3d 541", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 182760 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ill-app-3d/283/0541-01" ] }, { "cite": "689 N.E.2d 205", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "294 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 35349 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/ill-app-3d/294/0001-01" ] }, { "cite": "652 N.E.2d 267", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "year": 1995, "pin_cites": [ { "page": "269" }, { "page": "271" }, { "page": "272" }, { "page": "271" }, { "page": "272" } ], "opinion_index": 0 }, { "cite": "166 Ill. 2d 188", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198888 ], "weight": 6, "year": 1995, "pin_cites": [ { "page": "192" }, { "page": "195" }, { "page": "198" }, { "page": "197" }, { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0188-01" ] } ], "analysis": { "cardinality": 659, "char_count": 18936, "ocr_confidence": 0.761, "pagerank": { "raw": 1.2262379557921857e-07, "percentile": 0.6046308105221578 }, "sha256": "7aac03c0853d791cbadd414f3d4f2123c1208cdd915ccc667cb15a1fc3237846", "simhash": "1:fbe09d60795e5ef2", "word_count": 3052 }, "last_updated": "2023-07-14T19:05:07.459628+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DEBORAH L. JONES, Indiv. and as Special Adm\u2019r of the Estate of Thomas R. Jones, Deceased, Plaintiff, v. O\u2019BRIEN TIRE AND BATTERY SERVICE CENTER, INC., Defendant and Third-Party Plaintiff-Appellant (Dave Macios, d/b/a Sugarloaf Landscape Nursery, et al., Third-Party Defendants-Appellees)." ], "opinions": [ { "text": "JUSTICE RARICK\ndelivered the opinion of the court:\nThe third-party plaintiff, O\u2019Brien Tire and Battery Service Center, Inc. (O\u2019Brien), filed an action in the circuit court of Madison County against the third-party defendants, Dave Macios, doing business as Sugar loaf Landscape Nursery, and Country Mutual Insurance Company (Country Mutual), seeking damages for negligent spoliation of evidence. The trial court granted Macios\u2019 motion to dismiss and granted Country Mutual\u2019s motion for judgment on the pleadings. We reverse and remand the cause for further proceedings.\nAccording to O\u2019Brien\u2019s complaint, on September 27, 1994, Thomas Jones was killed when the left outer rear wheel of a truck owned by Macios separated from the vehicle and struck Jones\u2019s car. That same day, Tim Finley, a forensic engineer retained by Country Mutual, inspected the Macios vehicle and issued a report noting that the tire had been previously replaced by O\u2019Brien. The report concluded that the left rear wheels were loose because the installer failed to properly tighten the lug nuts. In a letter dated October 12, 1994, Country Mutual advised Macios to preserve the wheel assembly for evidentiary purposes.\nOn February 28, 1995, Deborah Jones filed suit against Macios and Country Mutual. The case was settled on October 27, 1995. On August 30, 1996, Jones filed a complaint against O\u2019Brien. During discovery, it was revealed that the wheel assembly had been taken to Patterson Tire Service by Macios and subsequently discarded. In its answer to the Jones complaint, O\u2019Brien advanced as an affirmative defense the argument that Macios had discarded the wheel assembly before it could be examined by O\u2019Brien and that Macios should have reasonably foreseen that the wheel assembly was material to a potential civil action arising from the incident.\nO\u2019Brien subsequently filed a two-count third-party complaint against Macios and Country Mutual, alleging negligent spoliation of evidence. Count I was directed at Macios, and count II was directed at Country Mutual. Count I of the complaint alleged that the wheel assembly was discarded or disposed of by Macios before it was examined by or on behalf of O\u2019Brien, that Macios knew or should have known that the wheel assembly was material to a potential civil action arising from the accident, that Macios had a duty to retain this evidence, and that because of Macios\u2019 action, O\u2019Brien was prejudiced in its efforts to defend itself because such evidence was unavailable for forensic analysis. On September 10, 1998, the trial court granted Jones\u2019s motion to sever the third-party complaint. On October 29, 1998, the trial court dismissed Jones\u2019s action against O\u2019Brien pursuant to the settlement and stipulation of the parties.\nOn December 23, 1998, Macios filed a two-count motion to dismiss O\u2019Brien\u2019s third-party complaint. Count I was brought pursuant to section 2 \u2014 615 of the Code of 'Civil Procedure (Code) (735 ILCS 5/2 \u2014 615 (West 1996)) and argued that O\u2019Brien failed to allege a duty on the part of Macios to preserve the wheel assembly. Count II was brought pursuant to section 2 \u2014 619 of the Code (735 ILCS 5/2 \u2014 619 (West 1996)) and argued that O\u2019Brien\u2019s claim for spoliation of evidence was waived by virtue of the settlement of the Jones action. On April 29, 1998, the trial court granted the motion and dismissed O\u2019Brien\u2019s action, finding that there was no duty owed by Macios to preserve the wheel assembly and that O\u2019Brien had not sufficiently alleged the existence of any duty. The trial court did not address Macios\u2019 waiver argument. Country Mutual subsequently filed a motion pursuant to section 2 \u2014 615 of the Code, seeking judgment on the pleadings. Country Mutual argued that the allegations contained in count II of O\u2019Brien\u2019s complaint were substantially the same as those directed against Macios and that the trial court\u2019s ruling on Macios\u2019 motion to dismiss should be given the same force and effect as to Country Mutual. The trial court agreed and granted the motion.\nOn appeal, O\u2019Brien argues that the trial court erred in ruling that Macios and Country Mutual had no duty to preserve the wheel assembly, because our supreme court held in Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 652 N.E.2d 267 (1995), that a claim for spoliation of evidence could be stated under existing negligence law.\nWhen ruling on a motion to dismiss pursuant to section 2 \u2014 615, the trial court must accept all well-pleaded facts as true and interpret all pleadings and supporting documents in a light most favorable to the nonmoving party. Jackson v. Michael Reese Hospital & Medical Center, 294 Ill. App. 3d 1, 689 N.E.2d 205 (1997). The motion should be granted only if the plaintiff can prove no set of facts that would support a cause of action on appeal. Beck v. Budget Rent-A-Car, 283 Ill. App. 3d 541, 669 N.E.2d 1335 (1996). The trial court\u2019s ruling is subject to de nova review. Joseph v. Chicago Transit Authority, 306 Ill. App. 3d 927, 715 N.E.2d 733 (1999). With these standards in mind, we turn to the merits of O\u2019Brien\u2019s arguments.\nIn Boyd, Tommie Boyd was injured when a propane heater he was using during the course of his employment exploded. Boyd filed a workers\u2019 compensation claim against his employer, Superior Foods, and Travelers Insurance Company (Travelers), Superior Foods\u2019 workers\u2019 compensation insurance carrier. Travelers took possession of the heater in order to investigate Boyd\u2019s workers\u2019 compensation claim. When Boyd subsequently requested that the heater be returned to him, Travelers was unable to locate it. Boyd and his wife brought suit against Travelers and alleged negligent and intentional spoliation of evidence. Specifically, the Boyds alleged that Travelers\u2019 loss of the heater irrevocably prejudiced and adversely affected their product liability action against the heater\u2019s manufacturer. The trial court granted Travelers\u2019 motion to dismiss, finding that until the Boyds lost their products liability action against the manufacturer, they could not allege any actual injury and thus they could not state a cause of action. Boyd, 166 Ill. 2d at 192, 652 N.E.2d at 269.\nOn appeal, our supreme court held that while spoliation of evidence was not recognized as an independent tort, an action for negligence based upon spoliation of evidence could be stated under existing negligence law. After noting that there is no general duty to preserve evidence, our supreme court stated that such a duty could arise through an agreement, a contract, a statute, or another special circumstance. Moreover, the court noted, a defendant may voluntarily assume a duty by affirmative conduct. The court held that in any of these instances, a defendant owes a duty of due care to preserve evidence if a reasonable person in the defendant\u2019s position should have foreseen that the evidence was material to a potential civil action. Our supreme court held that taking possession of the heater while knowing that it was evidence relevant to future litigation was sufficient to create a duty on the part of Travelers to preserve the heater. Boyd, 166 Ill. 2d at 195, 652 N.E.2d at 271.\nWith respect to the elements of causation and damages, our supreme court rejected Travelers\u2019 position that the Boyds first had to lose their suit against the heater\u2019s manufacturer before they could properly allege these elements. The court held that all that was required was that the plaintiffs allege sufficient facts to support a claim that the loss or destruction of evidence caused the plaintiffs to be unable to prove an underlying lawsuit. Our supreme court concluded that the Boyds\u2019 complaint was sufficient to state a cause of action for negligence based upon spoliation of evidence, and it remanded the cause for a trial. Boyd, 166 Ill. 2d at 198, 652 N.E.2d at 272.\nIn the present case, O\u2019Brien maintains that a special circumstance exists sufficient to impose upon both Macios and Country Mutual a duty to preserve the wheel assembly. With respect to Macios, O\u2019Brien contends that he owned the truck and was in possession of the wheel assembly after the accident. O\u2019Brien argues that a reasonable person in Macios\u2019 position would have recognized that the wheel assembly was material to a potential civil action arising from the incident. We agree.\nIn its third-party complaint, O\u2019Brien alleged that Macios was in possession of the wheel assembly and that he knew or should have known that the wheel assembly was material to a potential civil action arising from the incident. Under Boyd, this is sufficient to allege a duty to preserve the wheel assembly.\nMacios argues that there is no duty to preserve evidence where there is no \u201cspecial relationship\u201d between the plaintiff and defendant, created by contract, statute, or other circumstance. Macios contends that in Boyd, any third-party litigation against the manufacturer of the heater would have given rise to a hen in favor of Travelers on the proceeds of such third-party case. Thus, Travelers should have been aware of the possibility of third-party litigation, and such awareness supported the existence of special circumstances giving rise to a duty to preserve evidence.\nMacios\u2019 argument that Travelers\u2019 statutory right to a lien would have made it aware of the possibility of third-party litigation is correct, but not relevant. In its analysis, our supreme court did not discuss the basis for Travelers\u2019 knowledge that the heater would be material to any potential civil litigation, nor did it base its holding thereon. More importantly, the Boyds\u2019 complaint did not allege that Travelers\u2019 right to a lien gave rise to its knowledge that the heater would be material to any potential civil litigation. A plaintiff in a negligence case based upon spoliation of evidence need only allege that a reasonable person in the defendant\u2019s position should have foreseen that the evidence in question was material to a potential civil action. There is no requirement that the plaintiff allege the existence of any \u201cspecial relationship\u201d which would give rise to that knowledge. Ultimately, the plaintiff must prove that the defendant should have foreseen that the evidence in question was material to a potential civil action and that the existence of a \u201cspecial relationship\u201d between the plaintiff and the defendant would help establish that foreseeability, but the existence of a \u201cspecial relationship\u201d is not necessary to give rise to a duty to preserve evidence. Macios is attempting to read into Boyd a requirement that is not there.\nMacios also argues that there is no duty to preserve evidence where there is no pending litigation between the parties or any order of protection in place with respect to the evidence at issue. Macios contends that Jones\u2019s suit against O\u2019Brien was brought nearly 10 months after her case against Macios was settled. He maintains that there was no requirement in the settlement agreement that the wheel assembly be turned over to Jones or otherwise be preserved so that Jones could use it in a suit against O\u2019Brien.\nAgain, Macios is attempting to read into Boyd a requirement that is not there. Although there was a pending product liability action in Boyd, the existence of such pending litigation was not a factor in the court\u2019s determination that the Boyds had sufficiently alleged the existence of a duty to preserve evidence. In fact, the product liability claim against the manufacturer was filed in the same complaint as the negligent-spoliation-of-evidence counts. Thus, there was no pending litigation at the time the heater was destroyed or lost. All that was required in Boyd to give rise to a duty to preserve evidence was that Travelers had possession of the heater and that it knew or should have known that the heater was evidence relevant to future litigation. As with a \u201cspecial relationship,\u201d the existence of pending litigation would certainly help prove that a defendant should have foreseen that the evidence in question was material, but again, it is not required to establish the existence of the duty to preserve evidence. Moreover, to hold that a duty to preserve evidence does not arise until an action was filed would encourage the destruction of evidence. We find that the allegations contained in count I of O\u2019Brien\u2019s third-party complaint were sufficient to allege a duty on the part of Macios to preserve the wheel assembly.\nThe other elements of a negligence action are breach of duty, causation, and damages. In its third-party complaint, O\u2019Brien specifically alleges that by discarding the wheel assembly, Macios breached his duty to preserve evidence.\nWith respect to causation, our supreme court held in Boyd that to plead causation, a plaintiff in a negligence action based upon spoliation of evidence must allege sufficient facts to support a claim that the loss or destruction of the evidence in question caused the plaintiff to be unable to prove an underlying lawsuit. The Boyds\u2019 complaint alleged that Travelers lost the heater and failed to test it to determine the cause of the explosion, thereby depriving them of a key piece of evidence against the manufacturer. The Boyds further alleged that as a result, no expert could testify without doubt whether the heater was defective or dangerously designed. Our supreme court held that these allegations were sufficient to support the theory that Travelers\u2019 loss of the heater caused the plaintiffs to be unable to prove their suit against the manufacturer. Boyd, 166 Ill. 2d at 197, 652 N.E.2d at 271.\nIn the present case, O\u2019Brien alleges that because of Macios\u2019 breach of his duty to preserve the wheel assembly, O\u2019Brien has been prejudiced in its efforts to defend itself in the Jones action because the wheel assembly is unavailable for forensic analysis in an attempt to assess the physical evidence against the allegations of the complaint. O\u2019Brien further alleges that because of the loss or destruction of the wheel assembly, it is precluded from developing any forensic testimony based upon an inspection of the wheel assembly to successfully defend itself from Jones\u2019s charges and it is unable to establish whether other defenses to Jones\u2019s action exist. We find these allegations sufficient to allege the element of causation.\nThe final element of a negligence action is actual damages. In Boyd, our supreme court held that a plaintiff is required to allege that the defendant\u2019s loss or destruction of evidence caused the plaintiff to be unable to prove an otherwise valid, underlying cause of action. In Boyd, the plaintiffs\u2019 complaint alleged that Boyd sustained serious personal injuries when the heater exploded, and it also alleged the other elements of a product liability action and a nexus between Travelers\u2019 loss of the heater and the plaintiffs\u2019 inability to prove the underlying action. Our supreme court found this sufficient to allege actual damages. Boyd, 166 Ill. 2d at 198, 652 N.E.2d at 272.\nIn the present case, O\u2019Brien alleges that it is the defendant in a wrongful death suit wherein the death is attributed to O\u2019Brien\u2019s negligence in mounting a wheel to Macios\u2019 truck, that Macios discarded or destroyed the wheel assembly, and that as a result, O\u2019Brien\u2019s ability to defend itself has been impaired. Following Boyd, we find that O\u2019Brien has sufficiently alleged actual damages resulting from Macios\u2019 breach of his duty to preserve evidence.\nMacios also argues that O\u2019Brien waived its spoliation-of-evidence claim by virtue of its settlement with Jones. Although the trial court did not rule on this aspect of his motion to dismiss, Macios contends that this court may nevertheless affirm on this basis.\nWe previously addressed this issue in Stinnes Corp. v. Kerr-McGee Coal Corp., 309 Ill. App. 3d 707, 722 N.E.2d. 1167 (1999), a case essentially identical to the one at bar. In that case a third-party complaint was filed by Stinnes Corporation (Stinnes) against Kerr-McGee Coal Corporation (Kerr-McGee) alleging negligent spoliation of evidence. An underlying products liability action was brought by Robert Wilkas and James Benge against Stinnes\u2019s subsidiary, SRE Carlsbad, Inc., for personal injuries arising out of a coal mining vehicle accident that occurred in a coal mine owned by Wilkas and Benge\u2019s employer, Kerr-McGee. Stinnes reached a settlement with Wilkas and Benge, and the suit was dismissed. Kerr-McGee filed a motion to dismiss, arguing that it did not owe a duty to Stinnes to preserve evidence. The trial court granted the motion to dismiss and we reversed. Relying on Boyd, this court held that the allegations of Stinnes\u2019s complaint sufficiently stated a cause of action for negligence based upon spoliation of evidence. As in the present case, Kerr-McGee argued that Stinnes\u2019s settlement with Wilkas and Benge resulted in a waiver of its spoliation-of-evidence claim. We rejected this argument, finding that Stinnes\u2019s liability to Wilkas and Benge and Kerr-McGee\u2019s potential liability for negligent spoliation of evidence arose from two different injuries. We likewise reject Macios\u2019 similar argument in the present case.\nCount II of O\u2019Brien\u2019s third-party complaint was directed against Country Mutual and also alleged negligence based upon spoliation of evidence. The allegations with respect to the existence of a duty to \u25a0 preserve evidence are essentially the same as those directed at Macios: that Country Mutual discarded the wheel assembly, that Country Mutual should have known that the wheel assembly w\u00e1s material to a potential civil action arising from the incident, and that Country Mutual had a duty to either retain the evidence or instruct its insured, Macios, to do so. The allegations with respect to breach, causation, and damages are identical to those contained in count I: that as a result of the loss of the wheel assembly, O\u2019Brien\u2019s ability to defend itself against the Jones suit has been impaired. Following the same reasoning above, we conclude that the trial court erred in entering judgment on the pleadings in favor of Country Mutual.\nFor the foregoing reasons, the judgment of the circuit court of Madison County is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.\nReversed; cause remanded.\nCHAPMAN, PJ., and MAAG, J., concur.", "type": "majority", "author": "JUSTICE RARICK" } ], "attorneys": [ "Robert Marc Chemers, of Pretzel & Stouffer, Chtrd., of Chicago, for appellant.", "Mary E. Massa, of Becker & Associates, of Granite City, for appellee Dave Macios.", "Kevin D. Gunn, of Sonnenschein, Nath & Rosenthal, of St. Louis, Missouri, for appellee Country Mutual Insurance Company." ], "corrections": "", "head_matter": "DEBORAH L. JONES, Indiv. and as Special Adm\u2019r of the Estate of Thomas R. Jones, Deceased, Plaintiff, v. O\u2019BRIEN TIRE AND BATTERY SERVICE CENTER, INC., Defendant and Third-Party Plaintiff-Appellant (Dave Macios, d/b/a Sugarloaf Landscape Nursery, et al., Third-Party Defendants-Appellees).\nFifth District\nNo. 5 \u2014 99\u20140494\nOpinion filed June 7, 2001.\nRobert Marc Chemers, of Pretzel & Stouffer, Chtrd., of Chicago, for appellant.\nMary E. Massa, of Becker & Associates, of Granite City, for appellee Dave Macios.\nKevin D. Gunn, of Sonnenschein, Nath & Rosenthal, of St. Louis, Missouri, for appellee Country Mutual Insurance Company." }, "file_name": "0418-01", "first_page_order": 436, "last_page_order": 443 }