dissenting:
Future applications of the rule stated in the majority opinion will result in much additional litigation, confusion, and problematic application.
Initially, I disagree with the majority opinion on the matter of State Farm Fire and Casualty Company’s legal duty relative to the preservation of a sidewalk over which it had no ability to exercise possession. Ordinary tort principles apply, and thus, in order to hold State Farm Fire and Casualty Company (State Farm) responsible for the preservation of its insured’s sidewalk at this procedural state, there must be some issue of material fact relative to the duty State Farm allegedly owes the injured claimant. While the preservation of evidence likely to be utilized in a later litigious situation can be required in order to avoid liability for spoliation of evidence, the legal precedent on this issue is very different from the case at bar. The cases cited in the majority opinion, and others, require the preservation of an item of evidence when the purported spoliator defendant maintained possession of the item. See, e.g., Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 652 N.E.2d 267 (1995) (involving the destruction/loss of a water heater required for testing, which was therefore critical to the proof of liability in a products liability case); Jones v. O’Brien Tire & Battery Service Center, Inc., 322 Ill. App. 3d 418, 752 N.E.2d 8 (2001) (involving a wheel assembly required for forensic testing/testimony in this wrongful-death case). The rationale behind this theory, although perhaps not stated in the legal opinions, is that the item itself is critical to the proof of the case. Photographic, other demonstrative, or testimonial evidence about the lost item in question simply would not suffice. These types of items are critical to the proof of a case because they are needed for testing to actually prove up a defect or other pieces of the liability puzzle. A sidewalk— hole intact — is not such an item of evidence. There are many other ways to establish liability in this case.
Much is made of the factual issue of whether State Farm advised Alice Kuehling that it was okay to dismantle the apparently dangerous sidewalk. In my opinion, that perceived issue is irrelevant. Even if we view the evidence in a light most favorable to James E. Dardeen and assume that State Farm did tell Alice Kuehling that there was no problem in dismantling the sidewalk, that would not change the issue of liability. The sidewalk at issue was owned by either Alice Kuehling or the City of Mt. Carmel. State Farm had no ownership interest in the sidewalk. State Farm had no possessory interest in the sidewalk. Contrary to the majority’s opinion, I believe that the possession of the item allegedly spoliated is critical to a finding of negligence. At a minimum, if the alleged spoliator did not physically possess the item, then the spoliator must have had the ability to control the entity who did possess the item. At its essence, spoliation involves an ability to affect the outcome of the spoliated item’s existence. Those types of situations simply did not exist in this case.
Generally speaking, there is no duty to preserve evidence. Boyd, 166 Ill. 2d at 195, 652 N.E.2d at 270. Exceptions to the rule arise through agreement, contract, statute, voluntary affirmative conduct, or other special circumstances. Boyd, 166 Ill. 2d at 195, 652 N.E.2d at 270-71. In this case, there is no statute requiring State Farm to preserve a sidewalk it apparently insures. There is no agreement or contract with James E. Dardeen to preserve the sidewalk in its decrepit state. State Farm did not volunteer to preserve the sidewalk. Furthermore, no special circumstance was alleged to require State Farm’s preservation of the sidewalk. I do not find that a factual issue on the matter of duty existed.
Finally, I take issue with the majority’s opinion on the matter of James E. Dardeen’s ability to prove up his case. The majority states, “[W]e find that the plaintiff alleged sufficient facts to show that the destruction of the brick sidewalk could cause him to be unable to prove his personal injury lawsuit against Alice Kuehling.” 344 Ill. App. 3d at 839. As the trial court pointed out, there were eight witnesses prepared to testify about this hole — including the homeowner, Alice Kuehling. There was evidence that Alice Kuehling felt that the hole was so dangerous that she altered the state of the sidewalk to minimize the hole, thereby protecting future uses of the sidewalk.
The majority’s statement that photographic evidence of this hole would have been “conclusive proof” fails to take into account the numerous ways in which a photographer could capture an image of the hole in question. If State Farm had taken a Polaroid photograph of questionable quality, would that have sufficed? Or would State Farm still face a spoliation claim because it “purposefully” took a bad photograph of the scene of the accident? What would happen if State Farm took an aerial photograph of the hole or a ground-level photograph of the hole in an effort to minimize the appearance of the hole? Would those photographs have sufficed to preserve the evidence?
I raise these rhetorical questions because of what I anticipate as a problem with the application of the majority’s opinion. Theorizing about other possible premises liability cases reveals the problems inherent in the application of the majority’s rule. In order to avoid a later-alleged spoliation claim, will grocery stores and restaurants now be required to install video cameras or otherwise photographically document any spilled ice tea or catsup, or grapes hazardously lying on the store’s floor, in the event of a slip and fall? Furthermore, I am left to wonder: how long is an individual or company required to preserve the evidence? Is two years (and longer in the case of a minor or incapacitated adult) sufficient? I do not believe that the Illinois Supreme Court’s recognition of negligent spoliation claims was intended to require the preservation of evidence in all cases of injury or contractual damage without regard to the quality of the evidence involved.
In light of the ample evidence relative to the size and depth of the hole in question and the admission on the part of the homeowner, I believe that the preservation of the precise sidewalk hole was not necessary to prove the plaintiffs claim against Alice Kuehling.
Additionally, I do not believe that property owners and their insurers should be required to preserve an apparently dangerous premises condition in its dangerous state following a premises liability event.
For the reasons stated, I respectfully dissent.