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[W] Adams v. Bath and Body Works3/17/2005
r affidavits, both Francis Burns and John Mertens listed everything they relied upon in reaching their conclusions, including photographs of the house after the fire, records from each of the fire inspectors, depositions, answers to interrogatories, etc.
According to Burns' affidavit, he relied upon 30 different pieces of evidence. He specifically based his opinions upon the fire investigators' determination as to where the fire began, plaintiff's testimony regarding the type of candle and the location of that candle, a photo of the end table which showed a "mass of whitish residue covering an area of the front right corner of the top of the end table," and the candle's "documented history of abnormal burning and causing fires."
Mertens relied on 34 pieces of evidence. He based his opinions on plaintiff's testimony, photographs taken of the house after the fire, and the candle's notorious history. We find that there was a sufficient factual basis for these experts' opinions. Moreover, the circuit court's reliance upon Hiscott was misplaced. In Hiscott, the appellate court found that the circuit court abused its discretion when it permitted the plaintiff's reconstruction expert to testify concerning the "maneuvering and path" of the defendant's vehicle. Hiscott, 324 Ill. App. 3d at 123. According to the court, because the expert admitted he did not rely upon any physical evidence and, instead, considered only the "impressions of time and distance provided by the parties," there "was simply no concrete factual basis to support" his opinion. Hiscott, 324 Ill. App. 3d at 124. In short, the court found that "there was insufficient physical evidence to provide him with the basic data needed to reconstruct the accident." Hiscott, 324 Ill. App. 3d at 124.
Here, plaintiff's experts were not attempting to reconstruct the fire; they were attempting to determine its cause and origin. Furthermore, his experts did not simply rely upon information submitted by the parties; they also relied upon photos taken of the living room shortly after the fire, fire inspectors' reports as to the location of the fire, and information regarding past fires caused by BBW and Globaltech's candle. Thus, the circuit court's reliance upon Hiscott was inappropriate.
III. STATE FARM'S LIABILITY
State Farm contends that, as Kubasak's insurer, it owed no duty to preserve evidence and, thus, it could not be held liable for negligent spoliation of evidence. State Farm requests that this court affirm the circuit court's dismissal order in its entirety because doing so would also eliminate the third-party claim for negligent spoliation of evidence asserted against it by BBW and the counterclaim under that same theory asserted by Globaltech.
In its brief, however, State Farm urges upon us the same arguments contained in its motion for summary judgment that was pending before the circuit court prior to the court's dismissal of plaintiff's complaint as a Rule 219(c) discovery sanction. The circuit court did not rule upon State Farm's motion. Instead, in dismissing plaintiff's claims, the court found that all of the other claims "among and between the parties" were moot. And rightfully so, because once plaintiff's claims against BBW and Globaltech were dismissed, both the need and the standing for them to assert either a third-party claim or counterclaim against State Farm for negligent spoliation of evidence was eviscerated. However, because we are reinstating plaintiff's claims, those claims "among and between the parties" are no longer moot. In addition, any motions, including State Farm's motion for summary judgment, that were pending prior to the circuit court's order dismissing plai
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