specially concurring:
I agree with the majority’s decision to reverse the judgment of the trial court and remand for further proceedings. I write separately, however, because I disagree with the majority’s reasoning, which I believe leads to impractical pleading requirements not dictated by our supreme court in Boyd v. Travelers Insurance Co., 166 Ill. 2d 188 (1995).
The majority correctly summarizes Boyd’s test to determine the existence of a duty to preserve evidence; however, I believe Galbreath’s third-party complaint against BFI satisfies Boyd’s requirements. According to the complaint, BFI secured and segregated the truck, hoist, and hose mechanism and invited a representative of Galbreath to view it. After Galbreath briefly visually inspected the evidence at BFI’s facility, Galbreath requested BFI to turn over the hose or, in the alternative, to preserve it. The complaint alleges that BFI invited the Waukegan police department to investigate the accident. OSHA also investigated it. Either BFI or its insurer retained Triodyne Engineering to review the matter. From these allegations, I think it is reasonable to infer that BFI was aware of the importance of this evidence and knew that litigation was in the offing. These allegations are sufficient to state a duty under Boyd. In securing and segregating the evidence, BFI voluntarily assumed a duty to preserve it at a time when BFI knew that the equipment was relevant to future litigation. Boyd does not require anything more. In Boyd, the defendant’s duty to preserve the heater was predicated upon its assuming a duty to preserve it where (1) it took physical possession of the heater when it (2) knew that the heater was evidence relevant to future litigation. Boyd, 166 Ill. 2d at 195.
The majority concludes that the act of informing Galbreath that the truck would be placed back in service negates the assumption of the duty to preserve it. In my view, its stated intention to place the truck back in service is irrelevant. BFI assumed a duty to preserve the evidence. BFI did not assume a duty to refrain from putting the equipment back in service. So long as the evidence is not altered in any material respect, a fact that is not borne out by this record, whether the truck was in service is not significant. What is significant is that by securing and segregating the evidence BFI assumed a duty to preserve it. That duty continues whether or not the truck is put back in service. The analysis here might change if BFI had informed Gal-breath that it was disposing of the truck on March 1, 2000, but such is not the case.
The majority is too strict and rigid in its interpretation and application of what it calls the relationship prong of Boyd’s test to establish a duty to preserve evidence. In my view, the majority’s approach goes beyond what was contemplated by our supreme court. This is made plain by our supreme court’s opinion in Shimanovsky v. General Motors Corp., 181 Ill. 2d 112 (1998). Shimanovsky held that 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. This duty, our supreme court said, “is based on the court’s concern that, were it 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. Thus, for purposes of enforcing its discovery rules, our supreme court has imposed a duty to preserve evidence even in the absence of any relationship or court order. The difference between the scope of the duty in Shimanovsky and Boyd is that Boyd employs traditional negligence principles, whereas the authority to sanction found in Shimanovsky is derived from the supreme court’s discovery rules. All Boyd does is erect a tort framework to allow a party who has been injured as a result of the destruction of evidence to recover damages. Where the wrongs addressed by the two cases are identical, and the injuries forseeable, Boyd cannot be interpreted to contemplate a strict and rigid relationship test as a threshold to alleging a duty and remain consistent with the duty imposed in Shimanovsky. The majority creates an untenable anomaly. Had it been Andersen, the first-party plaintiff, who got rid of the evidence, first-party defendant Galbreath could obtain sanctions in the form of barring any testimony concerning the equipment or even dismissal of Andersen’s complaint. See Ralston v. Casanova, 129 Ill. App. 3d 1050, 1056-57 (1984). But because BFI is not a party to the underlying suit, Galbreath is potentially left without a remedy unless it can sue BFI in tort for negligent spoliation of the same evidence.
The majority misconstrues the holding in Jackson v. Michael Reese Hospital & Medical Center, 294 Ill. App. 3d 1, 10 (1997). All Jackson required was that the plaintiff “sufficiently describe what affirmative conduct was voluntarily undertaken by the hospital.” Jackson, 294 Ill. App. 3d at 11. There, the record indicated that the hospital may have voluntarily assumed a duty to maintain the X rays where it had notice of the litigation and segregated the X rays into a separate litigation file. Jackson, 294 Ill. App. 3d at 11. The plaintiff in Jackson, however, failed to plead these facts in the complaint. Jackson, 294 Ill. App. 3d at 12. In our case, Galbreath has sufficiently pleaded a voluntary assumption of duty giving rise to a duty to preserve the evidence.
Likewise, Galbreath pleaded breach of duty. I believe all that is necessary to plead breach of duty is to plead the destruction of the evidence at a time when BFI knew or should have known that the evidence was relevant to future litigation. Galbreath’s complaint alleged that “[a]t all times since [djecedent’s death, BFI knew or should have known that the truck, hoist and hose involved in [djecedent’s death were material evidence in future or pending litigation arising from that death ***. BFI breached its duty to preserve evidence by, among other things, selling the truck, hoist and hose and relinquishing possession, custody and control of that evidence to a third party.” These allegations are sufficient to plead breach of duty.
The majority is mistaken when it concludes that “Galbreath has not pleaded any facts that would indicate that BFI should have known, prior to selling the equipment, that further inspection or testing of the equipment would provide additional information material to a potential civil action.” 341 Ill. App. 3d at 218. Galbreath pleaded that BFI called Waukegan police officers and other emergency personnel to the scene to conduct an investigation. Galbreath also pleaded that BFI, either directly or through its insurer, hired its own engineers to investigate the incident. Accepting all well-pleaded facts and inferences as true, the complaint shows that BFI was aware of the gravity of the situation and should have known that further testing of the equipment would provide additional material information. Surely, if BFI thought it was necessary to bring in experts bn this matter, it should have known that Galbreath should be given the opportunity to conduct an expert investigation of its own. Moreover, Galbreath alleged that after the brief visual examination BFI permitted, it requested that the hose be turned over or, at the very least, be preserved. Galbreath also pleaded that OSHA’s investigation of the accident included several senior BFI employees. OSHA’s report intimated that BFI altered the product. BFI should have known that expert testing by Galbreath would be necessary to explore this defense.
I further disagree with the majority’s conclusion that Galbreath’s complaint does not sufficiently allege an injury proximately caused by the alleged breach of duty. “The preservation of an allegedly defective product is of upmost importance in both proving and defending against a strict liability action.” Graves v. Daley, 172 Ill. App. 3d 35, 38 (1988). The second of the two paragraphs numbered 24 of plaintiffs complaint alleges: “If the truck, hoist and hoses had been preserved in their condition at the time of the incident and were available for inspection now and at the time of trial, that evidence would establish the lack of any defect attributable to Galbreath and/or the merit of one or more affirmative defenses based upon subsequent third-party modification or other intervening causes. With the benefit of the evidence that BFI has improperly failed to preserve, Galbreath would be able to establish these defenses in the [ujnderlying [ljitigation. Absent that evidence, Galbreath may not be able to prove these defenses, and its ability to defend itself in the [ujnderlying [ljitigation has been impaired.” I think this is sufficient. The test set forth by the majority requires Gal-breath to plead that it will lose the underlying case. This is an impossible burden. Short of clairvoyance, Galbreath cannot know it will lose. A judge or jury will have to decide whether Galbreath loses based upon a multitude of factors outside the issue of whether BFI improperly destroyed the equipment. Also, this test is too close to the one rejected by Boyd, that a plaintiff must plead that it would have prevailed in the underlying suit. Boyd, 166 Ill. 2d. at 196 n.2. Moreover, because Galbreath is a third-party plaintiff, BFI’s liability to it is necessarily contingent upon the outcome of the underlying suit.
I further disagree that Galbreath has not pleaded a nexus between the destruction of the evidence and its loss of a defense. Galbreath pleaded that an inspection of the lost evidence would establish that any defect was not attributable to Galbreath or was caused by third-party modification of the truck and hoist mechanism or other intervening causes. Without the evidence, Galbreath cannot plead more specifically what the lost evidence would show. Boyd recognized that the causation element is satisfied where, due to the destruction of the evidence, the plaintiff is deprived of the opportunity to present expert testimony that the product was defective or dangerously designed. Boyd, 166 Ill. 2d at 197. Again, in this context, the majority reads more into Jackson than is there. Jackson simply required the plaintiff to plead the significance of the lost X rays. Jackson, 294 Ill. App. 3d at 15. Here, Galbreath has pleaded that the significance of the lost hose and related equipment was that they would demonstrate that any alleged defect was not attributable to Galbreath or was the result of third-party modification or other intervening causes.
Boyd’s analysis was not at all convoluted. It was premised on the obvious: the allegedly defective product, maintained in the condition it was in at the time of the occurrence, aids in determining whether the product is defective and how the defect occurred, and is far more instructive to a fact finder than photographs or oral descriptions. See Kambylis v. Ford Motor Co., 338 Ill. App. 3d 788, 793, 788 N.E.2d 1, 5 (2002). It was found to be sufficient in Boyd to allege that, as a result of the loss of the heater, no expert could testify without doubt whether the heater was defective or dangerously designed. Boyd, 166 Ill. 2d at 197. Boyd did not require that the plaintiffs plead the significance of the heater to their cause of action.
The majority errs when, without citing authority, it posits that Galbreath must plead what evidence it could derive from the actual testing of the mechanism that it cannot obtain from the OSHA report. First of all, I see nothing in Boyd, Jackson, or Thornton v. Shah, 333 Ill. App. 3d 1011 (2002), that imposes such a pleading requirement. Moreover, and as a matter of fact, there is no indication the OSHA report was made by an engineer competent to render expert opinions concerning the alteration of the mechanism or the effect of other intervening causes. Also, Galbreath was entitled to have its own experts, rather than OSHA’s, render opinions, an opportunity that was forever foreclosed.
While Galbreath need not plead that it will lose the underlying case, its complaint needs to be more definite than it is. Galbreath’s complaint states, “Absent that evidence, Galbreath may not be able to prove these defenses, and its ability to defend itself in the [underlying [l]itigation has been impaired.” (Emphasis added.) Galbreath needs to plead more than that it “may” not be able to prove its defenses.
I would prefer the following test: a party in Galbreath’s position must be able to plead and prove that the destruction of evidence has significantly impaired its ability to advance a meritorious defense. This test, I believe, is in keeping with Boyd’s requirement that a plaintiff must demonstrate that, but for the loss or destruction of the evidence, the plaintiff had a reasonable probability of succeeding in the underlying suit. Boyd, 166 Ill. 2d. at 196, 197 n.2.
Thus, for the above reasons, I agree to reverse and remand to the trial court for further proceedings.