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[W] Adams v. Bath and Body Works3/17/2005
were 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.
BBW, 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 Ins. 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's dismissal of plaintiff's 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.
Recently, 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's 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 332. The supreme court, relying upon its decision in Boyd, a decision which it termed its "watershed pronouncement on spoliation of evidence," found that the insurer could not be 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:
" 'The 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's position should have foreseen that the evidence was material to a potential civil action.' " (Emphasis omitted.) Dardeen, 213 Ill. 2d at 336, quoting Boyd, 166 Ill. 2d at 195.
In an amicus brief, the Illinois Trial Lawyers Association asked the court to "harmonize Boyd, where held that, generally, there is no duty to preserve evidence," with its holding in Shimanovsky "that a potential litigant owes a duty to potential adversaries to take reasonable measures to preserve the integrity of relevant, material evidence." Dardeen, 213 Ill. 2d at 337. Instead of harmonizing the two, the court simply found Shimanovsky "inapposite." See Dardeen, 213 Ill. 2d at 339. The court noted that in Shimanovsky, it had "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." Dardeen, 213 Ill. 2d at 340.
The 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
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