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[W] Adams v. Bath and Body Works3/17/2005
easonably failed to comply with a discovery order" because " efore noncompliance can be unreasonable, a party must have been in a position to comply").
Though 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), defendants have offered no "reasonable measures" that plaintiff could have, but failed, to undertake to protect this evidence, short of treating the second floor of the house owned by Kubasak like a crime scene. We could not find, nor have the parties cited, any case, either in Illinois or elsewhere, that has required such action.
Plaintiff may have been both foolhardy to pin his hopes on the lamps as being the cause of the fire and negligent in failing to preserve the end table, couch and carpet. Such conduct, however, is not enough to support dismissal of his complaint as a discovery sanction under Rule 219(c). Shimanovsky, 181 Ill. 2d at 123. Therefore, we find that the circuit court abused its discretion in imposing it and reverse the dismissal of plaintiff's complaint. Stringer, 351 Ill. App. 3d at 1139-40 (finding that because no discovery violation occurred where the injurious object was destroyed without the plaintiff's knowledge, the circuit court's refusal to impose sanctions was not an abuse of discretion).
Moreover, independent of our finding that the circuit court abused its discretion in dismissing plaintiffs complaint as a Rule 219(c) sanction, we reverse the court's dismissal of plaintiff's claims against Kubasak premised upon her failure to install and maintain working smoke detectors in violation of the Smoke Detector Act.
Though the common law did not impose a civil duty upon landlords to install smoke detectors in property leased to a tenant, section 3 of the Smoke Detector Act provides an exception and creates an implied private right of action. Bybee v. O'Hagen, 243 Ill. App. 3d 49, 52-53, 612 N.E.2d 99 (1993); Todd v. Smith, 267 Ill. App. 3d 699, 701, 642 N.E.2d 878 (1994). Under sections 3(a) and (d), an "owner of a structure" is required to place a working smoke detector within 15 feet of "every room used for sleeping purposes" and make "reasonable efforts to test and maintain detectors in common stairwells and hallways." 425 ILCS 60/3(a)(d) (West 1996).
A landlord's liability under this statute does not hinge upon the occurrence of a fire, much less cause of that fire; only the failure to provide, test, and maintain working smoke detectors. 425 ILCS 60/3(a)(d) (West 1996). The absence of the end table, couch and carpet is completely irrelevant to the issue of Kubasak's liability to plaintiff under the Smoke Detector Act. Thus, the circuit court had no basis to dismiss plaintiff's claims against Kubasak as a sanction for failing to preserve evidence.
BBW, Globaltech, and Kubasak's argument as to why plaintiff's claims against Kubasak were properly dismissed is of the "cart before the horse" variety. They contend that plaintiff's failure to preserve the evidence impaired Kubasak's ability to "prosecute her counterclaims against" BBW and Globaltech. While that might be so, it is not a sufficient basis for dismissing plaintiff's claims against Kubasak premised upon the Smoke Detector Act; claims that do not depend in the least on the presence or absence of any of the evidence that was destroyed.
II. EXPERT AFFIDAVITS
Plaintiff next contends that the circuit court erred when it struck his expert witnesses' affidavits sua sponte. He argues that he had no notice from the court that such an action was imminent and that the affidavits were properly based upon sufficient factual data.
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