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Dardeen v. Kuehling12/2/2004
claim. Dardeen notes that State Farm even concedes that possession is not required because it states in its petition for leave to appeal that "spoliation of evidence presupposes that the spoliator possess the evidence or be in a position to control it before it was lost or destroyed."
The appellate court acknowledged that State Farm did not have possession of the sidewalk, but still insisted that State Farm somehow "exercised control or had the opportunity to exercise control" over it. However, as State Farm aptly notes, and our research indicates, no Illinois court has held that a mere opportunity to exercise control over the evidence at issue is sufficient to meet the relationship prong. See Andersen, 341 Ill. App. 3d at 214 (plaintiff alleged that the defendant secured and segregated the defective hoist mechanism parts); Jones v. O'Brien Tire & Battery Service Center, Inc., 322 Ill. App. 3d 418 (2001) (plaintiff alleged that defendant possessed and discarded the defective vehicle parts); Stinnes Corp. v. Kerr-McGee Coal Corp., 309 Ill. App. 3d 707 (1999) (plaintiff alleged that defendant gathered, tagged, and segregated the defective vehicle parts); see also Jackson, 294 Ill. App. 3d at 18 (plaintiff could replead where the record indicated the defendant possessed the requested X rays, segregated them after the original complaint was filed, and continued to treat the plaintiff). We do not intimate that, nor do we decide whether, possession is required in every negligent spoliation case. But, in order to avoid summary judgment, Dardeen needed to show something more than State Farm's agent answering affirmatively to Kuehling's question whether she could remove the raised bricks. In fact, Kuehling's call and her subsequent actions are consistent with long-standing Illinois public policy. See Herzog v. Lexington Township, 167 Ill. 2d 288, 300 (1995) ("a strong public policy favors encouraging improvements to enhance public safety"); accord Schaffner v. Chicago & North Western Transportation Co., 129 Ill. 2d 1, 14 (1989). The record here indicates that State Farm had neither possession nor control over Kuehling's sidewalk and, therefore, owed Dardeen no duty to preserve it.
Shimanovsky is inapposite. In that case, we agreed with the appellate court that a potential litigant owes a duty to take reasonable measures to preserve the integrity of relevant, material evidence. Shimanovsky, 181 Ill. 2d at 121. But we never mentioned Boyd, or spoliation, because the central issue in Shimanovsky was whether the trial court could dismiss the plaintiff's complaint as a discovery sanction for the plaintiff's presuit destruction of evidence. Further, when Kuehling called Couch, she had not yet spoken with Dardeen. We decline to characterize State Farm as a potential litigant at that point.
Because Dardeen failed to show State Farm owed him a duty to preserve Kuehling's sidewalk, summary judgment was appropriate.
CONCLUSION
For the reasons that we have stated, the judgment of the appellate court is reversed and the judgment of the circuit court is affirmed.
Appellate court judgment reversed; circuit court judgment affirmed.
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