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Dardeen v. Kuehling12/2/2004
UNPUBLISHED
Docket No. 97900-Agenda 35-September 2004.
State Farm Insurance Company (State Farm) appeals the decision of the appellate court reversing the circuit court of Wabash County's order granting summary judgment against James Dardeen on his negligent spoliation of evidence claim. The central issue in this case is whether a homeowner's insurer has a duty to instruct the homeowner to preserve evidence which may be relevant to a potential personal injury claim by someone injured on the homeowner's property. We conclude that, on the facts in this case, the insurer has no such duty. We reverse the appellate court and affirm the trial court.
BACKGROUND
On the morning of September 1, 1999, while delivering newspapers with his daughter, James Dardeen fell in a hole on the brick sidewalk outside Alice Kuehling's house. Dardeen fractured his right elbow. Because it was not yet light, Dardeen bent down to get a closer look at the hole. Dardeen and his daughter subsequently described the hole as 12 inches wide and 4 to 6 inches deep, "the size of a dinner plate."
Dardeen's daughter telephoned Kuehling later that day to notify her of the accident and request the name of her insurer. Kuehling instructed Dardeen's daughter, " end your father up to my house this evening and I'll talk to him." Kuehling then telephoned her State Farm agent, Ronald Couch. Kuehling told Couch that several bricks were "cocked up" where Dardeen fell, making the sidewalk uneven. She asked Couch, "Would it be all right if I removed those bricks before this happened again?" or "Could I remove those bricks before somebody else gets hurt on it ?" Couch said yes. That evening, Dardeen returned to the site of Kuehling's house with his neighbor to see the hole and spoke to Kuehling, her daughter, and her son in-law. Though Dardeen's wife photographed his elbow for litigation purposes, no one photographed the hole. A few days later, Kuehling removed between 25 and 50 bricks from the area.
Nearly a year later on August 1, 2000, Dardeen filed a premises liability complaint against Kuehling and the City of Mt. Carmel, alleging that their failure to repair the hole or warn others of its existence proximately caused his elbow injury . Dardeen voluntarily dismissed the claim against the city, but, on May 25, 2001, he filed an amended complaint, adding negligent spoliation of evidence claims against both Kuehling and State Farm. Regarding State Farm, Dardeen alleged that "the hole in the brick sidewalk" was material evidence to his premises liability claim and that State Farm had a duty to preserve that evidence once its agent Couch heard about the accident from Kuehling. Dardeen further alleged that State Farm breached this duty when it authorized Kuehling to remove the raised bricks before taking photographs of the area.
State Farm filed a motion for summary judgment on this count; the trial court granted that motion. Dardeen asked the trial court to add Supreme Court Rule 304(a) language to its order. See 155 Ill. 2d R. 304(a). The trial court assented, and Dardeen appealed. His other claims against Kuehling remained pending.
The appellate court reversed. 344 Ill. App. 3d 832. Initially, the appellate court reviewed the leading spoliation case from this court, Boyd v. Travelers Insurance Co., 166 Ill. 2d 188 (1995), and noted that there is no general duty to preserve evidence, though one may arise by agreement or other affirmative conduct. 344 Ill. App. 3d at 835-36. The appellate court also discussed Shimanovsky v. General Motors Corp., 181 Ill. 2d 112, 121 (1998), where we held that a potential litigant owes a duty to take reasonable measures to pres
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