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[W] Adams v. Bath and Body Works3/17/2005
the hands of an opponent with "two roads diverged in a wood." He may either (1) seek dismissal of his opponent's complaint under Rule 219(c) or (2) bring a claim for negligent spoliation of evidence. The mode of relief most appropriate will depend upon the opponent's culpability in the destruction of the evidence. The former requires conduct that is "deliberate contumacious or [evidences an] unwarranted disregard of the court's authority" and should be employed only "as a last resort and after all the court's other enforcement powers have failed to advance the litigation." Shimanovsky, 181 Ill. 2d at 123. The latter requires mere negligence, the failure to foresee " 'that the [destroyed] evidence was material to a potential civil action.' " Dardeen, 213 Ill. 2d at 336, quoting Boyd, 166 Ill. 2d at 195. Because BBW and Globaltech chose to take the Rule 219(c) road, any reliance upon Boyd or its progeny to support the circuit court's sanction is inappropriate.
Moreover, we reject defendants' reliance upon those cases which have found "that negligent or inadvertent destruction or alteration of evidence may result in a harsh sanction, including dismissal, when a party is disadvantaged by the loss." Farley Metals, Inc. v. Barber Colman Co., 269, Ill. App. 3d 104, 110, 645 N.E.2d 964 (1994), citing Graves v. Daley, 172 Ill. App. 3d 35, 526 N.E.2d 679 (1988); Stegmiller v. H.P.E., Inc., 81 Ill. App. 3d 1144, 401 N.E.2d 1156 (1980); Marrocco v. General Motors Corp, 966 F.2d 220 (7th Cir. 1992); see also Kambylis v. Ford Motor Company, 338 Ill. App. 3d 788, 794, 788 N.E.2d 1 (2003); Shelbyville Mutual Insurance Co. v. Sunbeam Leisure Products Co., 262 Ill. App. 3d 636, 641, 634 N.E.2d 1319 (1994), citing State Farm Fire & Casualty Co. v. Frigidaire, Division of General Motors Corp., 146 F.R.D. 160 (N.D. Ill. 1992); Jones v. Goodyear Tire & Rubber Co., 137 F.R.D. 657 (C.D. Ill. 1991). It is only where a party's conduct can be characterized as "deliberate, contumacious or unwarranted disregard of the court's authority" that the drastic sanction of dismissal is justified, and, even then, only "as a last resort and after all the court's other enforcement powers have failed to advance the litigation." Shimanovsky, 181 Ill. 2d at 123; see also Nationwide Mutual Insurance Co. v. Kogut, 354 Ill. App. 3d (2004); Vortanz v. Elmhurst Memorial Hospital, 179 Ill. App. 3d 584, 590, 534 N.E.2d 625 (1989); Kubian v. Labinsky, 178 Ill. App. 3d 191, 196, 533 N.E.2d 22 (1988); Barnes v. Black & Decker Manufacturing Co., 135 Ill. App. 3d 700, 708, 481 N.E.2d 1200 (1984).
In those instances where evidence is destroyed due to mere negligence, a prejudiced litigant can seek redress by bringing a claim for negligent spoliation of evidence against the responsible party. The question here is whether plaintiff's conduct leading to the destruction of the end table, couch, and carpet was sanctionable and, if so, whether the circuit court's sanction of dismissal was appropriate.
In a strict-products-liability case, the preservation of the allegedly defective product is important both to the proof of and defense to liability. Stringer v. Packaging Corp. of America, 351 Ill. App. 3d 1135, 1138, 815 N.E.2d 476 (2004). Even prior to the filing of such a lawsuit, 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. Underlying this duty is the fear that if a court were 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.
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