Illinois Appellate Court Sets Out Spoliation of Evidence Rules; Kilburg v. Zante, et al.

Plaintiff Joyce Kilburg was injured while she was a passenger in a taxicab. She filed a lawsuit claiming negligence and spoliation of evidence against defendants, which included the driver of the Zante Cab Co. taxi, Taxi Medallion Management, Inc. (Taxi Medallion), Taxi Affiliation Services, LLC (Taxi Affiliation) and Wolley Cab Association (Wolley). 

On the defendants’ motion under Illinois Code of Procedure §2-615, the spoliation claims were dismissed. The plaintiff appealed, arguing that the trial judge erred in dismissing the spoliation claims because her complaint sets forth sufficient facts to show that defendants had a duty to preserve the evidence.

In this case, on Oct. 6, 2009, Kilburg was injured when a taxi in which she was a passenger left the roadway and crashed into a tree. Zante was the owner of the taxi. On Oct. 8, 2009, Zante towed the taxi to a lot on Elston Avenue in Chicago. Taxi Medallion leased the lot and stored taxis there.

The taxi had an insignia of Checker Taxi, a Wolley affiliation.Zante was an independent contractor, but had an association agreement with Wolley. 

Just one week after the crash, the plaintiff filed a lawsuit against the driver, Zante, and Checker Taxi Co. alleging negligence that caused her injuries. Checker Taxi Co. ceased to exist in 1988. On Oct. 15, 2009, the court granted the plaintiff’s emergency motion for an order of protection ordering that the driver, Zante, and Checker “shall preserve and protect the taxi in its current condition and shall make it available to plaintiff and her representatives.The vehicle shall not be driven, repaired, modified or moved without agreement of the plaintiff or prior order of Court.”

The plaintiff’s complaint was amended several times through a sixth amended complaint. It had been suggested during discovery that the cause of the crash was “sudden acceleration . . .”  The plaintiff had alleged that on the date of the crash, Oct. 6, 2009, the taxi was equipped with an event data recorder with two component parts. The plaintiff asserted that on Oct. 8, 2009, Zante and the driver possessed control and had access to the taxi. On Oct. 9, 2009, the plaintiff’s counsel sent correspondence to the driver and Zante demanding that the taxi be preserved and protected. 

The plaintiff also alleged in her spoliation count that had the taxi been preserved, it would have been critically important to keep the event data recorder, which would have made it probable that she would have been able to prove a product liability claim for the taxi’s sudden acceleration. Apparently, Zante, between Oct. 6, 2009 and Nov. 9, 2009, removed the electronic data recorder, which became lost or destroyed. 

In the Illinois Appellate Court’s decision, it was addressed that spoliation of evidence is a form of negligence. As a general rule in Illinois, there is no duty to preserve evidence. However, under the case of Martin v. Keeley & Sons, Inc., 2012 IL 113270, a plaintiff’s complaint must allege facts in order to support four elements of spoliation: 

“(1)      The defendants owed the plaintiff a duty to preserve the evidence;

(2)       The defendants breached that duty by losing or destroying the evidence;

(3)       The loss or destruction of the evidence was the proximate cause of the plaintiff’s inability to prove an underlying lawsuit; and

(4)       As a result, the plaintiff suffered actual damages.”

Martin, 2012 IL 113270, ¶26.

Applying these rules, in this case, the court returned to the reasoning in the Martin case. The court noted that the plaintiff had filed a complaint alleging spoliation of evidence, had a protective order to preserve the evidence and had a letter from counsel to the defendants three days after the accident. 

The court also said that the “gap” without notice to defendants was so short that it was inconsequential. The court found that the defendants should have clearly foreseen that the taxi was material evidence given that, within 3 days of the accident, the plaintiff demanded that the defendants preserve the taxi. 

Compounded with service of the initial complaint and the court’s order requiring preservation of the evidence shortly thereafter, the defendants clearly should have known within a few days of the accident that the taxi was material evidence in a civil action.  Therefore, an exception to the general rule that the defendant had no duty to preserve evidence was set out and the court reversed the trial court’s dismissal of the spoliation count and returned the case for further consideration.

Joyce Kilburg v. Zante Cab Company, Inc., et al., 2013 IL App. (1st) 113408.

Kreisman Law Offices has been handling auto accidents and car crashes for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Chicago (Edgebrook), Chicago (North Park), Chicago (Ravenswood), Northlake, Franklin Park, River Grove, Villa Park, Willowbrook, Lemont, Oak Forest and Harvey, Ill.

Related blog posts:

Illinois Appellate Court Upholds 23.8M in SUV Crash with Illinois Department of Transportation Truck – Chraca v. Miles

Wrongful Death in Tractor-Trailer Head-On Crash Leads to Insurance Coverage Fight; Coca-Cola Enterprises, Inc. v. ATS Enterprises

Health Care Liens are Limited to 40% of Verdict After Deducting Attorney Fees and Costs; Stanton v. Rea, et al.