{ "id": 5730717, "name": "STEVE ADAMS, as Special Adm'r of the Estate of Dixie Adams, Deceased, and Indiv., Plaintiff-Appellant, v. BATH AND BODY WORKS, INC., et al., Defendants-Appellees (Bath and Body Works, Inc., Counterplaintiff and Cross-Appellant; Sharon Kubasak et al., Counterdefendants and Cross-Appellees; Globaltech Industries, Inc., Counterplaintiff; Bath and Body Works, Inc., et al., Counterdefendants)", "name_abbreviation": "Adams v. Bath & Body Works, Inc.", "decision_date": "2005-05-26", "docket_number": "No. 1-02-3530", "first_page": "387", "last_page": "400", "citations": [ { "type": "official", "cite": "358 Ill. App. 3d 387" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "351 Ill. App. 3d 1135", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1083849 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "1138" }, { "page": "1139" }, { "page": "1139-40", "parenthetical": "stating that \"Rule 219(c" }, { "page": "1139-40", "parenthetical": "finding that because no discovery violation occurred where the injurious object was destroyed without the plaintiffs knowledge, the circuit court's refusal to impose sanctions was not an abuse of discretion" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/351/1135-01" ] }, { "cite": "671 N.E.2d 692", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "173 Ill. 2d 398", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 147650 ], "year": 1996, "pin_cites": [ { "page": "414" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/173/0398-01" ] }, { "cite": "739 N.E.2d 1049", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "317 Ill. App. 3d 737", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1025968 ], "year": 2000, "pin_cites": [ { "page": "743" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/317/0737-01" ] }, { "cite": "759 N.E.2d 509", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "197 Ill. 2d 514", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 259086 ], "year": 2001, "pin_cites": [ { "page": "523" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/197/0514-01" ] }, { "cite": "752 N.E.2d 1219", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "323 Ill. App. 3d 628", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 171741 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "633" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/323/0628-01" ] }, { "cite": "752 N.E.2d 605", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "323 Ill. App. 3d 532", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 171649 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "534", "parenthetical": "finding one of the defendant's bases for summary judgment was waived based upon the rule that \"[a]n alleged error is not preserved for review if the trial court fails to rule upon it\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/323/0532-01" ] }, { "cite": "809 N.E.2d 197", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "parenthetical": "finding that it was not \"good practice\" for the trial court to sua sponte strike affidavits filed in support of a motion to change venue based upon forum non conveniens on the basis that those affidavits contained hearsay" } ], "opinion_index": 0 }, { "cite": "348 Ill. App. 3d 445", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4021876 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "454", "parenthetical": "finding that it was not \"good practice\" for the trial court to sua sponte strike affidavits filed in support of a motion to change venue based upon forum non conveniens on the basis that those affidavits contained hearsay" }, { "page": "454" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/348/0445-01" ] }, { "cite": "642 N.E.2d 878", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "267 Ill. App. 3d 699", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 333150 ], "year": 1994, "pin_cites": [ { "page": "701" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/267/0699-01" ] }, { "cite": "612 N.E.2d 99", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "243 Ill. App. 3d 49", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 5384510 ], "year": 1993, "pin_cites": [ { "page": "433" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/245/0413-01" ] }, { "cite": "614 N.E.2d 1194", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "155 Ill. 2d 305", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4810354 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "314" }, { "page": "314" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/155/0305-01" ] }, { "cite": "815 N.E.2d 476", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "481 N.E.2d 1200", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "135 Ill. App. 3d 700", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3217522 ], "year": 2004, "pin_cites": [ { "page": "7-8" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/354/0001-01" ] }, { "cite": "137 F.R.D. 657", "category": "reporters:specialty", "reporter": "F.R.D.", "case_ids": [ 7850642 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/frd/137/0657-01" ] }, { "cite": "146 F.R.D. 160", "category": "reporters:specialty", "reporter": "F.R.D.", "case_ids": [ 7850652 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/frd/146/0160-01" ] }, { "cite": "634 N.E.2d 1319", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "262 Ill. App. 3d 636", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3230365 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/81/1144-01" ] }, { "cite": "526 N.E.2d 679", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "172 Ill. App. 3d 35", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5080408 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/172/0035-01" ] }, { "cite": "645 N.E.2d 964", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "269 Ill. App. 3d 104", "category": "reporters:state", "reporter": "Ill. 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BATH AND BODY WORKS, INC., et al., Defendants-Appellees (Bath and Body Works, Inc., Counterplaintiff and Cross-Appellant; Sharon Kubasak et al., Counterdefendants and Cross-Appellees; Globaltech Industries, Inc., Counterplaintiff; Bath and Body Works, Inc., et al., Counterdefendants)." ], "opinions": [ { "text": "JUSTICE QUINN\ndelivered the opinion of the court:\nPlaintiff Steve Adams, both individually and as the special administrator for the estate of his wife, Dixie Adams, filed a three-count complaint against defendants Bath & Body Works, Inc. (BBW), Globaltech Industries, Inc. (Globaltech), and Sharon Kubasak (Kubasak), seeking damages from a fire that occurred in the house that he and his family had rented from Kubasak. Plaintiff alleged that a candle, manufactured by Globaltech and sold by BBW was the cause of the fire. Asserted in his complaint were numerous claims for products liability, strict liability, and negligence against Globaltech and BBW Plaintiff also asserted claims under Illinois\u2019 Smoke Detector Act (Smoke Detector Act) (425 ILCS 60/3 (West 1996)) against Kubasak based upon her failure to provide operating smoke detectors in the house. Each defendant filed cross-claims against each other seeking contribution, as well as counterclaims against plaintiff for negligently failing to preserve evidence. In addition, BBW filed a third-party complaint against Kubasak\u2019s insurer, State Farm Fire and Casualty Company (State Farm), for negligent spoliation of evidence.\nThe circuit court granted a motion filed by BBW and joined by Globaltech dismissing plaintiffs claims as a discovery sanction pursuant to Supreme Court Rule 219(c) (166 Ill. 2d R. 219(c)) for failing to preserve evidence. On appeal, plaintiff contends that the circuit court abused its discretion in dismissing his complaint as a discovery sanction. Plaintiff also argues that the circuit court erred in striking his experts\u2019 affidavits sua sponte due to a lack of foundation. For the following reasons, we reverse the judgment of the circuit court.\nBACKGROUND\nOn June 17, 1997, a fire swept through the house that plaintiff and his family had rented from Kubasak in Oak Forest, Illinois. According to plaintiff\u2019s deposition, before going to bed on the night before the fire, he blew out several candles in the living room area of the house. One of those candles was a \u201cGarden Lavender Botanical Candle,\u201d which was allegedly manufactured and designed by Global-tech and sold by BBW Plaintiff suffered severe burns as a result of the fire; his wife, however, died from burns and smoke inhalation.\nSix days after the fire, plaintiff retained counsel. Though both state and city fire inspectors were unable to pin down the cause of the fire, they were able to determine that the fire began near a couch located in the living room. Based upon comments he overheard from one of these inspectors, plaintiffs counsel removed two lamps that he believed were the potential impetus of the fire. After it was determined that these lamps were not the cause, plaintiff\u2019s focus shifted to a \u201cGarden Lavender Botanical Candle\u201d that he said was located on an end table near the couch in the living room.\nAt some point shortly after the fire, however, Kubasak hired Action Fire Restoration (Action Fire) to clean up the debris and repair the damage. State Farm paid Action Fire for its services. Unbeknownst to plaintiff, many of his belongings, including the end table and couch, plus the carpet that Kubasak owned, were removed and destroyed.\nAlso, shortly after the fire, State Farm retained Crawford & Company (Crawford) to examine the house and determine the extent of the damage. Crawford, in turn, hired Joe Mazzone to investigate the cause of the fire. In his deposition, Mazzone stated that, after ruling out the home\u2019s wiring, appliances, and fixtures, he believed one possible cause of the fire was a candle placed on the end table. Mazzone based this belief on the fact that the area in which these items were located contained the heaviest \u201cchar or burn marks,\u201d as well as plaintiffs statement to fire inspectors that he blew out a candle on the end table before going to bed on the night of the fire. Mazzone stated that both he and Donald Hitchcock, a fire investigator with the Illinois State Fire Marshall\u2019s office, \u201cagreed that the place where the fire started was the table.\u201d Because the end table, couch, and carpet had been destroyed, however, there was no physical evidence that would either support or refute plaintiffs statement as to the candle\u2019s location. Plaintiff was not privy to Mazzone\u2019s report until December 1997, well after the end table, couch and carpet were destroyed.\nOn April 26, 1999, plaintiff filed suit. Though plaintiff initially named only BBW and Globaltech as defendants, he later filed a third-amended complaint on August 3, 2000, adding claims against Kubasak pursuant to the Smoke Detector Act. On February 20, 2002, BBW filed a motion to dismiss plaintiff\u2019s complaint or, alternatively, to bar plaintiff from introducing any evidence that a candle sold by BBW was involved in the fire as a sanction under Rule 219(c) for his failure to preserve either the end table, couch, or carpet. Globaltech joined BBW\u2019s motion for sanctions.\nBoth State Farm and Kubasak filed motions for summary judgment (735 ILCS 5/2 \u2014 1005 (West 2000)) on the third-party complaint and counterclaims filed against them by BBW and Globaltech. On August 28, 2002, though the motions were fully briefed and- argued before the circuit court, the court deferred ruling because discovery was still open. On October 9, 2002, after discovery had closed, the circuit court again heard arguments; two days later the court filed a written order dismissing plaintiffs complaint.\nIn its order, the court found \u201ctwo separate grounds on which the within claims of plaintiff must be disposed:\u201d (1) \u201cplaintiff and his counsel had the opportunity and the responsibility to preserve relevant evidence and failed to do so and framed their theory of the case only after allowing relevant evidence over which they had control to be destroyed (Boyd v. Travelers Insurance Co., 166 Ill. 2d 188 (1995) and its progeny)\u201d and (2) \u201cplaintiff has offered no competent expert witness opinion testimony to present at trial with respect to cause and origin.\u201d The court found that the \u201c[disposition of the claims of plaintiff has the practical effect of mooting out the other claims among and between the parties.\u201d The court also dismissed \u201c[a]ny claims among and between those parties that are not technically moot\u201d because \u201cthere remains nothing to try on any of the pending claims\u201d after \u201cthe entry of an order barring the presentation of evidence that a defective garden lavender botanical candle manufactured by [Global-tech] and sold by [BBW]\u201d was the cause.\nPlaintiff filed a timely notice of appeal. In addition, BBW filed a cross-appeal, the resolution of which is \u201ccontingent upon this court\u2019s ruling on Plaintiffs appeal.\u201d Specifically, in its cross-appeal, BBW contends that, should this court reverse the circuit court\u2019s sanction of dismissal, it should reinstate BBW\u2019s counterclaims and third-party complaint. Moreover, BBW maintains that because Kubasak failed to file a similar cross-appeal, her counterclaims against BBW, Globaltech, and Adams are forfeited.\nANALYSIS\nI. RULE 219(c) SANCTIONS\nPlaintiff contends that the circuit court erred in dismissing his claims as a sanction under Rule 219(c) due to his failure to preserve the end table, couch and carpet. Specifically, he argues that neither he nor his attorney knew that such evidence might be relevant (having pinned their hopes on the two lamps that plaintiffs attorney removed shortly after the fire) or was responsible for the destruction of that evidence. He also argues that the circuit court mistakenly dismissed his claims against Kubasak because her liability under the Smoke Detector Act was not dependent upon the cause of the fire. He contends that Kubasak could not have been prejudiced by his alleged failure to preserve evidence.\nBBW, Globaltech, and Kubasak all argue that because plaintiff should have known that the end table, couch, and carpet might be relevant to determining the cause of, and, therefore, liability for, the fire, he breached his duty under Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 652 N.E.2d 267 (1995), and Shimanovsky v. General Motors Corp., 181 Ill. 2d 112, 692 N.E.2d 286 (1998), to preserve that evidence. Though they do not contend that plaintiff or his counsel played any affirmative role in the destruction of that evidence, they assert that the circuit court\u2019s dismissal of plaintiff\u2019s complaint as a discovery sanction under Rule 219(c) was appropriate because even the negligent or inadvertent destruction of key evidence would justify such a sanction.\nRecently, our supreme court discussed Boyd, Shimanovsky, and the topic of presuit destruction of evidence. See generally Dardeen v. Kuehling, 213 Ill. 2d 329 (2004). In Dardeen, while delivering newspapers, the plaintiff was injured when he stepped into a hole in the defendant\u2019s sidewalk. Dardeen, 213 Ill. 2d at 332. After the defendant received the go-ahead from her insurer to fix the hole, the plaintiff sued the insurer for negligent spoliation of evidence. Dardeen, 213 Ill. 2d at 331. The supreme court, relying upon its decision in Boyd, a decision which it termed its \u201cwatershed pronouncement on spoliation of evidence,\u201d found that the insurer could not he held liable for negligent spoliation. Dardeen, 213 Ill. 2d at 335. Reciting the duty element for a spoliation claim it had outlined in Boyd, the court stated:\n\u201c \u2018The general rule is that there is no duty to preserve evidence; however, a duty to preserve evidence may arise through an agreement, a contract, a statute, [citation] or other special circumstance. Moreover, a defendant may voluntarily assume a duty by affirmative conduct. [Citation.] In any of the foregoing 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.\u2019 \u201d (Emphasis omitted.) Dardeen, 213 Ill. 2d at 336, quoting Boyd, 166 Ill. 2d at 195.\nIn an amicus brief, the Illinois Trial Lawyers Association asked the court to \u201charmonize Boyd, where [it] held that, generally, there is no duty to preserve evidence,\u201d with its holding in Shimanovsky \u201cthat a potential litigant owes a duty to potential adversaries to take reasonable measures to preserve the integrity of relevant, material evidence.\u201d Dardeen, 213 Ill. 2d at 337. Instead of harmonizing the two, the court simply found Shimanovsky \u201cinapposite.\u201d See Dardeen, 213 Ill. 2d at 339. The court noted that in Shimanovsky, it had \u201cnever mentioned Boyd, or spoliation,\u201d because \u201cthe central issue in Shimanovsky was whether the trial court could dismiss the plaintiffs complaint as a discovery sanction for the plaintiffs presuit destruction of evidence.\u201d Dardeen, 213 Ill. 2d at 340.\nThe lesson to be taken from this, we believe, is that the two remedies discussed in those cases, i.e., a claim for negligent spoliation of evidence in Boyd and dismissal as a sanction under Rule 219(c) in Shimanovsky, are separate and distinct. See Dardeen, 213 Ill. 2d at 339-40. In other words, Shimanovsky and Boyd present a party confronted with the loss or destruction of relevant, material evidence at the hands of an opponent with \u201ctwo roads diverged in a wood.\u201d He may either (1) seek dismissal of his opponent\u2019s complaint under Rule 219(c) or (2) bring a claim for negligent spoliation of evidence. The mode of relief most appropriate will depend upon the opponent\u2019s culpability in the destruction of the evidence. The former requires conduct that is \u201cdeliberate [or] contumacious or [evidences an] unwarranted disregard of the court\u2019s authority\u201d and should be employed only \u201cas a last resort and after all the court\u2019s other enforcement powers have failed to advance the litigation.\u201d Shimanovsky, 181 Ill. 2d at 123. The latter requires mere negligence, the failure to foresee \u201c \u2018that the [destroyed] evidence was material to a potential civil action.\u2019 \u201d Dardeen, 213 Ill. 2d at 336, quoting Boyd, 166 Ill. 2d at 195. Because BBW and Globaltech chose to take the Rule 219(c) road, any reliance upon Boyd or its progeny to support the circuit court\u2019s sanction is inappropriate.\nMoreover, we reject defendants\u2019 reliance upon those cases which have found \u201cthat negligent or inadvertent destruction or alteration of evidence may result in a harsh sanction, including dismissal, when a party is disadvantaged by the loss.\u201d Farley Metals, Inc. v. Barber Colman Co., 269 Ill. App. 3d 104, 110, 645 N.E.2d 964 (1994), citing Graves v. Daley, 172 Ill. App. 3d 35, 526 N.E.2d 679 (1988); Stegmiller v. H.P.E., Inc., 81 Ill. App. 3d 1144, 401 N.E.2d 1156 (1980); Marrocco v. General Motors Corp., 966 F.2d 220 (7th Cir. 1992); see also Kambylis v. Ford Motor Co., 338 Ill. App. 3d 788, 794, 788 N.E.2d 1 (2003); Shelbyville Mutual Insurance Co. v. Sunbeam Leisure Products Co., 262 Ill. App. 3d 636, 641, 634 N.E.2d 1319 (1994), citing State Farm Fire & Casualty Co. v. Frigidaire, Division of General Motors Corp., 146 F.R.D. 160 (N.D. Ill. 1992); Jones v. Goodyear Tire & Rubber Co., 137 F.R.D. 657 (C.D. Ill. 1991). It is only where a party\u2019s conduct can be characterized as \u201cdeliberate, contumacious or [an] unwarranted disregard of the court\u2019s authority\u201d that the drastic sanction of dismissal is justified, and, even then, only \u201cas a last resort and after all the court\u2019s other enforcement powers have failed to advance the litigation.\u201d Shimanovsky, 181 Ill. 2d at 123; see also Nationwide Mutual Insurance Co. v. Kogut, 354 Ill. App. 3d 1, 7-8 (2004); Vortanz v. Elmhurst Memorial Hospital, 179 Ill. App. 3d 584, 590, 534 N.E.2d 625 (1989); Kubian v. Labinsky, 178 Ill. App. 3d 191, 196, 533 N.E.2d 22 (1988); Barnes v. Black & Decker Manufacturing Co., 135 Ill. App. 3d 700, 708, 481 N.E.2d 1200 (1984).\nIn those instances where evidence is destroyed due to mere negligence, a prejudiced litigant can seek redress by bringing a claim for negligent spoliation of evidence against the responsible party. The question here is whether plaintiffs conduct leading to the destruction of the end table, couch, and carpet was sanctionable and, if so, whether the circuit court\u2019s sanction of dismissal was appropriate.\nIn a strict-products-liability case, the preservation of the allegedly defective product is important both to the proof of and defense to liability. Stringer v. Packaging Corp. of America, 351 Ill. App. 3d 1135, 1138, 815 N.E.2d 476 (2004). Even prior to the filing of such a lawsuit, a potential litigant owes a duty to take reasonable measures to preserve the integrity of relevant and material evidence. Shimanovsky, 181 Ill. 2d at 121. Underlying this duty is the fear that if a court were unable to sanction a party for the presuit destruction of evidence, a potential litigant could circumvent discovery rules or escape liability simply by destroying the proof prior to the filing of a complaint. Shimanovsky, 181 Ill. 2d at 121.\nHowever, even where evidence is destroyed, altered, or lost, a defendant is not automatically entitled to a specific sanction. Stringer, 351 Ill. App. 3d at 1139. Rather, Illinois Supreme Court Rule 219(c) grants the circuit court the discretion to impose a sanction, including dismissal of the cause of action, upon any party who unreasonably refuses to comply with any discovery rule or any order entered pursuant to such rule. Shimanovsky, 181 Ill. 2d at 120, citing 166 Ill. 2d R. 219(c).\nIn fashioning an appropriate sanction, a trial court must consider the following: (1) the surprise to the adverse party; (2) the prejudicial effect of the proffered testimony or evidence; (3) the nature of the testimony or evidence; (4) the diligence of the adverse party in seeking discovery; (5) the timeliness of the adverse party\u2019s objection to the testimony or evidence; and (6) the good faith of the party offering the testimony or evidence. Boatmen\u2019s National Bank of Belleville v. Martin, 155 Ill. 2d 305, 314, 614 N.E.2d 1194 (1993). Of these factors, none is determinative. In re Estate of Kline, 245 Ill. App. 3d 413, 433 (1993).\nMoreover, in crafting a just order, the circuit court must remember that the purpose of a sanction is not merely to punish the dilatory party, but to effectuate the goals of discovery. See Buffington v. Yungen, 322 Ill. App. 3d 152, 154, 748 N.E.2d 844 (2001). A just order is one that is \u201ccommensurate with the seriousness of the violation\u201d (Hanley v. City of Chicago, 343 Ill. App. 3d 49, 55, 795 N.E.2d 808 (2003)) and \u201censures both the accomplishment of discovery and a trial on the merits\u201d (Buffington, 322 Ill. App. 3d at 154).\nThat being said, because an order to dismiss with prejudice is a drastic sanction (as its nickname, the \u201cdeath penalty\u201d of sanctions, suggests), it should be invoked \u201conly in those cases where the party\u2019s actions show a deliberate, contumacious, or unwarranted disregard of the court\u2019s authority\u201d; employed only \u201cas a last resort and after all the court\u2019s other enforcement powers have failed to advance the litigation.\u201d Shimanovsky, 181 Ill. 2d at 123.\nThe reversal of a trial court\u2019s imposition of a particular sanction is only justified when the record establishes a clear abuse of discretion. Boatmen\u2019s National Bank, 155 Ill. 2d at 314. To.determine if the trial court abused its discretion, a reviewing court must look to the criteria upon which the trial court relied in making its determination. Shimanovsky, 181 Ill. 2d at 123. Plaintiffs conduct here, though potentially negligent, could hardly be characterized as \u201cdeliberate, contumacious, or [an] unwarranted disregard of the court\u2019s authority.\u201d\nFirst, plaintiff did not engage in any \u201cknowing and willful defiance of the discovery rules or the trial court\u2019s authority.\u201d Shimanovsky, 181 Ill. 2d at 129. The destruction of the end table, couch and carpet occurred long before plaintiff filed his lawsuit. Second, the carpet belonged to Kubasak, and it is questionable whether he could have compelled her to preserve it. Third, even if he could have preserved this evidence, plaintiff had no knowledge that it might have been relevant and material; his initial theory was that two lamps, recovered by his attorney shortly after the fire, had been the cause. Finally, and perhaps most importantly, plaintiff played no role in, nor had any notice of, the destruction of the evidence which defendants claim was essential to their defense. Stringer, 351 Ill. App. 3d at 1139-40 (stating that \u201cRule 219(c) permits sanctions only where a party unreasonably fails to comply with a discovery order\u201d and that a \u201cparty who had nothing to do with the destruction of evidence cannot be said to have unreasonably failed to comply with a discovery order\u201d because \u201c[b]efore noncompliance can be unreasonable, a party must have been in a position to comply\u201d).\nThough a potential litigant owes a duty to take reasonable measures to preserve the integrity of relevant and material evidence (Shimanovsky, 181 Ill. 2d at 121), defendants have offered no \u201creasonable measures\u201d that plaintiff could have undertaken, but failed to undertake, to protect this evidence, short of treating the second floor of the house owned by Kubasak like a crime scene. We could not find, nor have the parties cited, any case, either in Illinois or elsewhere, that has required such action.\nPlaintiff may have been both foolhardy to pin his hopes on the lamps as being the cause of the fire and negligent in failing to preserve the end table, couch and carpet. Such conduct, however, is not enough to support dismissal of his complaint as a discovery sanction under Rule 219(c). Shimanovsky, 181 Ill. 2d at 123. Therefore, we find that the circuit court abused its discretion in imposing it and reverse the dismissal of plaintiffs complaint. Stringer, 351 Ill. App. 3d at 1139-40 (finding that because no discovery violation occurred where the injurious object was destroyed without the plaintiffs knowledge, the circuit court\u2019s refusal to impose sanctions was not an abuse of discretion).\nMoreover, independent of our finding that the circuit court abused its discretion in dismissing plaintiffs complaint as a Rule 219(c) sanction, we reverse the court\u2019s dismissal of plaintiffs claims against Kubasak premised upon her failure to install and maintain working smoke detectors in violation of the Smoke Detector Act.\nThough the common law did not impose a civil duty upon landlords to install smoke detectors in property leased to a tenant, section 3 of the Smoke Detector Act provides an exception and creates an implied private right of action. Bybee v. O\u2019Hagen, 243 Ill. App. 3d 49, 52-53, 612 N.E.2d 99 (1993); Todd v. Smith, 267 Ill. App. 3d 699, 701, 642 N.E.2d 878 (1994). Under sections 3(a) and (d), an \u201cowner of a structure\u201d is required to place a working smoke detector within 15 feet of \u201cevery room used for sleeping purposes\u201d and make \u201creasonable efforts to test and maintain detectors in common stairwells and hallways.\u201d 425 ILCS 60/3(a), (d) (West 1996).\nA landlord\u2019s liability under this statute does not hinge upon the occurrence of a fire, much less cause of that fire; only the failure to provide, test, and maintain working smoke detectors. 425 ILCS 60/ 3(a), (d) (West 1996). The absence of the end table, couch and carpet is completely irrelevant to the issue of Kubasak\u2019s liability to plaintiff under the Smoke Detector Act. Thus, the circuit court had no basis to dismiss plaintiffs claims against Kubasak as a sanction for failing to preserve evidence.\nBBW, Globaltech, and Kubasak\u2019s argument as to why plaintiffs claims against Kubasak were properly dismissed is of the \u201ccart before the horse\u201d variety. They contend that plaintiffs failure to preserve the evidence impaired Kubasak\u2019s ability to \u201cprosecute her counterclaims against\u201d BBW and Globaltech. While that might be so, it is not a sufficient basis for dismissing plaintiffs claims against Kubasak premised upon the Smoke Detector Act; claims which do not depend in the least on the presence or absence of any of the evidence that was destroyed.\nII. EXPERT AFFIDAVITS\nPlaintiff next contends that the circuit court erred when it struck his expert witnesses\u2019 affidavits sua sponte. He argues that he had no notice from the court that such an action was imminent and that the affidavits were properly based upon sufficient factual data.\nDefendants contend that despite the fact that no motion to strike the affidavits was pending, plaintiff had sufficient notice based upon comments made by the circuit court during oral argument on BBW\u2019s motion for sanctions. Defendants further argue that the circuit court properly struck the experts\u2019 affidavits because they lacked an adequate foundation.\nIt is poor practice for a circuit court to simply strike affidavits, sua sponte, without some sort of motion pending, be it oral or written. Botello v. Illinois Central R.R. Co., 348 Ill. App. 3d 445, 454, 809 N.E.2d 197 (2004) (finding that it was not \u201cgood practice\u201d for the trial court to sua sponte strike affidavits filed in support of a motion to change venue based upon forum non conveniens on the basis that those affidavits contained hearsay). In this case, no defendant had filed a motion for summary judgment against plaintiff, much less a motion to strike his experts\u2019 affidavits. Though the circuit court may have intimated an uncomfortableness with the sufficiency of plaintiffs experts\u2019 affidavits, \u201cthe trial court, as a matter of good practice, should not have intervened before [defendants] first moved to strike the affidavit.\u201d Botello, 348 Ill. App. 3d at 454. Thus, in the absence of a motion to strike or a motion for summary judgment, the circuit court erred in sua sponte striking plaintiffs experts\u2019 affidavits. On remand, the parties are free to file the proper motions if they so desire.\nIII. STATE FARM\u2019S LIABILITY\nState Farm contends that, as Kubasak\u2019s insurer, it owed no duty to preserve evidence and, thus, it could not be held liable for negligent spoliation of evidence. State Farm requests that this court affirm the circuit court\u2019s dismissal order in its entirety because doing so would also eliminate the third-party claim for negligent spoliation of evidence asserted against it by BBW and the counterclaim under that same theory asserted by Globaltech.\nIn its brief, however, State Farm urges upon us the same arguments contained in its motion for summary judgment that was pending before the circuit court prior to the court\u2019s dismissal of plaintiffs complaint as a Rule 219(c) discovery sanction. The circuit court did not rule upon State Farm\u2019s motion. Instead, in dismissing plaintiffs claims, the court found that all of the other claims \u201camong and between the parties\u201d were moot. And rightfully so, because once plaintiffs claims against BBW and Globaltech were dismissed, both the need and the standing for them to assert either a third-party claim or counterclaim against State Farm for negligent spoliation of evidence was eviscerated. However, because we are reinstating plaintiffs claims, those claims \u201camong and between the parties\u201d are no longer moot. In addition, any motions, including State Farm\u2019s motion for summary judgment, that were pending prior to the circuit court\u2019s order dismissing plaintiffs complaint as a Rule 219(c) discovery sanction are also reinstated.\nBBW contends that State Farm has waived its motion for summary judgment and any argument presented therein because it failed to \u201cobtain a ruling\u201d from the circuit court on its motion. The cases BBW relies upon, King v. Paul J. Krez Co., 323 Ill. App. 3d 532, 752 N.E.2d 605 (2001), and Woolums v. Huss, 323 Ill. App. 3d 628, 752 N.E.2d 1219 (2001), do not support its argument. See King, 323 Ill. App. 3d at 534 (finding one of the defendant\u2019s bases for summary judgment was waived based upon the rule that \u201c[a]n alleged error is not preserved for review if the trial court fails to rule upon it\u201d); Woolums, 323 Ill. App. 3d at 633 (stating that when \u201ca party moves to strike an affidavit filed in summary judgment proceedings, it is that party\u2019s duty to bring his motion to the attention of the trial court and to get a ruling on the motion. Failure to obtain such a ruling will operate as a waiver of the objections to the affidavit\u201d). Here, once the circuit court found that the claims asserted against State Farm were moot, it could not rule on the substantive merits of State Farm\u2019s motion for summary judgment on those claims. Because the circuit court did not rule upon the substantive merits of State Farm\u2019s motion, we decline to do so here.\nIV BBW\u2019S CROSS-APPEAL\nBBW filed a cross-appeal \u201crelative to the dismissal of its counterclaim against\u201d Kubasak, plaintiff, and Globaltech, as well as its third-party complaint against State Farm. BBW argues that \u201c[sjhould this Honorable Court reverse the Trial Court\u2019s order dismissing plaintiffs causes of action, BBW\u2019s counterclaims and third-party claims should be reinstated, since it filed the necessary cross-appeal to vest the court with jurisdiction to rule on the dismissal of its counterclaims and third-party claim.\u201d BBW also argues that because neither Kubasak, State Farm, nor Globaltech filed cross-appeals, they have waived any right to have their counterclaims reinstated.\nInitially, this court has no jurisdiction over BBW\u2019s cross-appeal because it poses a hypothetical question: If this court should reverse the circuit court\u2019s order dismissing plaintiffs causes of action, whether BBW\u2019s counterclaims and third-party claims should he reinstated. It is axiomatic that the existence of an actual controversy is an essential prerequisite to appellate jurisdiction, and courts of review will generally not decide abstract, hypothetical, or moot questions. Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 523, 759 N.E.2d 509 (2001). Because the resolution of BBW\u2019s argument depends upon the resolution of plaintiffs appeal, this court has no power to consider it.\nMoreover, even if this court has jurisdiction, BBW\u2019s filing of a cross-appeal from the judgment of the circuit court was improper. In general, a party cannot complain of error that does not prejudicially affect it, and one who has obtained by judgment all that has been asked for in the trial court cannot appeal from that judgment. Illinois Central R.R. Co. v. Accident & Casualty Co. of Winterthur, 317 Ill. App. 3d 737, 743, 739 N.E.2d 1049 (2000). Even though a successful party may not agree with the reasons, conclusions or findings of the lower court, it is improper to provide that successful party with a forum in a reviewing court. Geer v. Kadera, 173 Ill. 2d 398, 414, 671 N.E.2d 692 (1996). Here, there was no part of the circuit court\u2019s ruling that was adverse to BBW. The court did not rule on the substance of any motion or claim against BBW; it merely ruled that once plaintiffs claims were dismissed, the rest was moot. Thus, we dismiss BBW\u2019s cross-appeal as improper. We reverse the decision of the circuit court and reinstate all claims that the court either dismissed or found were moot due to that dismissal and all motions for summary judgment that were pending before the circuit court. On remand, the circuit court may, within its discretion, allow the parties the opportunity to refile their motions for summary judgment in light of this ruling, file additional memoranda in support and in opposition to those motions, grant additional time extensions, and/or permit any other docketing requests it sees fit.\nReversed and remanded with instructions.\nREID, EJ., and GREIMAN, J., concur.\nThis language taken from Robert Frost\u2019s poem \u201cThe Road Not Taken\u201d (1915).", "type": "majority", "author": "JUSTICE QUINN" } ], "attorneys": [ "Robert N. Wadington & Associates, of Chicago (Robert N. Wadington and Jeffrey C. Hasten, of counsel), for appellant.", "Johnson & Bell, of Chicago (Robert M. Burke and Jon E. Szostak, of counsel), for appellee Bath and Body Works, Inc.", "Rooks Pitts, of Chicago (Michael C. Borders, James W. McConkey, and Rosa M. Tumialan, of counsel), for appellee Sharon Kubasak.", "Williams, Montgomery & John, Ltd., of Chicago (Christina D. Ketcham, Alyssa M. Campbell, Brian J. Hunt, and Lloyd E. Williams, of counsel), for appellee Globaltech Industries, Inc.", "O\u2019Hagan, Smith & Amundsen, L.L.C., of Chicago (James W Fessler and Michael Resis, of counsel), for appellee State Farm Fire and Casualty Company." ], "corrections": "", "head_matter": "STEVE ADAMS, as Special Adm\u2019r of the Estate of Dixie Adams, Deceased, and Indiv., Plaintiff-Appellant, v. BATH AND BODY WORKS, INC., et al., Defendants-Appellees (Bath and Body Works, Inc., Counterplaintiff and Cross-Appellant; Sharon Kubasak et al., Counterdefendants and Cross-Appellees; Globaltech Industries, Inc., Counterplaintiff; Bath and Body Works, Inc., et al., Counterdefendants).\nFirst District (4th Division)\nNo. 1\u201402\u20143530\nOpinion filed May 26, 2005.\nRobert N. Wadington & Associates, of Chicago (Robert N. Wadington and Jeffrey C. Hasten, of counsel), for appellant.\nJohnson & Bell, of Chicago (Robert M. Burke and Jon E. Szostak, of counsel), for appellee Bath and Body Works, Inc.\nRooks Pitts, of Chicago (Michael C. Borders, James W. McConkey, and Rosa M. Tumialan, of counsel), for appellee Sharon Kubasak.\nWilliams, Montgomery & John, Ltd., of Chicago (Christina D. Ketcham, Alyssa M. Campbell, Brian J. Hunt, and Lloyd E. Williams, of counsel), for appellee Globaltech Industries, Inc.\nO\u2019Hagan, Smith & Amundsen, L.L.C., of Chicago (James W Fessler and Michael Resis, of counsel), for appellee State Farm Fire and Casualty Company." }, "file_name": "0387-01", "first_page_order": 405, "last_page_order": 418 }