Scheidler v. Metropolitan Pier and Exposition Authority

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ERIC J. SCHEIDLER, )

)

Plaintiff, )

)

v. ) Case No. 16-cv-4288

)

METROPOLITAN PIER AND ) Judge Robert M. Dow, Jr.

EXPOSITION AUTHORITY, NAVY )

PIER, INC., JOHN GRAEBER, and )

EDWARD MONTGOMERY, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Eric Scheidler (“Plaintiff”) brings this civil rights action against Defendant

Edward Montgomery (“Defendant”) for unlawful arrest in violation of the Fourth Amendment

(Count 1), negligent spoliation of evidence in violation of Illinois state law (Count 23), conspiracy

in violation of 42 U.S.C. § 1983 and Illinois common law (Count 24), exemplary damages (Count

25), and attorneys’ fees and costs (Count 28). All other defendants and claims have already been

dismissed with prejudice pursuant to a written settlement agreement. See [62], [63]. Currently

before the Court are (1) Plaintiff’s motion for partial summary judgment [69] and (2) Defendant’s

motion for summary judgment on all claims [73]. For the reasons explained below, Plaintiff’s

motion [69] and Defendant’s motion [73] are both denied. This case is set for further status

hearing on April 16, 2019 at 9:00 a.m.

I. Background

The Court takes the relevant facts primarily from the parties’ Local Rule 56.1 statements,

[71], [74], [82], [83], [84], and [99]. The following facts are undisputed except where a dispute

is noted.

The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331, 1343, and

1367(a). Venue in this judicial district is proper because the events alleged in Plaintiff’s complaint

occurred within the Northern District of Illinois.

Plaintiff resides in Kane County, Illinois. Defendant, who is being sued in his individual

capacity, has at all relevant times been employed by the City of Chicago (“City”) as a police officer

with the Chicago Police Department (“CPD”). Defendant has been assigned to CPD’s Navy Pier

foot patrol post for approximately nine years during his career.

On April 15, 2015, Defendant was on duty assigned to the Navy Pier foot patrol post. A

member of the Navy Pier security personnel contacted Defendant via radio and requested that

Defendant respond to the front of Navy Pier. According to Defendant’s deposition testimony,

Navy Pier security personnel told him that there “was a disturbance of some type of nature or there

was a guy who was refusing to identify himself and they needed him to be identified and could I

respond.” [74-4] at 39 (Tr. 78:8-11). Defendant was provided with a description of the individual

and his path of travel. Defendant was aware that Navy Pier security personnel would typically

attempt to identify an individual when they wanted to either (1) issue a trespass notice in order to

bar the individual from the Pier or (2) document an individual’s activity and location for security

purposes given Navy Pier’s high-risk location and unique public safety concerns.

As Defendant approached the northwest corner of Navy Pier, he observed Plaintiff on the

north side of the pier walking westbound on Grand Avenue with Navy Pier security personnel

following him. A security guard approached Plaintiff and asked him for his identification.

Plaintiff refused to produce his identification. Plaintiff continued to walk westbound and the

security guard followed him.

The paths of Plaintiff, the security personnel who were following him, and Defendant then

converged. Defendant knew and was familiar with the security personnel. It is disputed what

security personnel told Defendant when the parties came together. According to Defendant’s

testimony, security personnel informed him that Plaintiff had trespassed by entering a restricted

area of Navy Pier and returning to the restricted area after being told to leave. See [74-4] at 44-46

(Tr. 83:7-85:10); 48 (Tr. 87:2-18); 61-62 (Tr. 170:19-171:4); 73 (Tr. 184:6-12); see also [71-1] at

115-17 (Tr. 115:23-117:5).1

According to Plaintiff’s affidavit, security personnel did not tell Defendant at this time (or

at any time prior to Defendant placing Plaintiff in handcuffs and arresting him) that Plaintiff had

been trespassing, that he had been in a restricted area or more specifically the Grand Ballroom, or

that he had been asked to leave Navy Pier.2 Instead, according to Plaintiff, the only issue that

security personnel or Defendant raised was Plaintiff’s refusal to provide documents to identify

himself. According to Plaintiff, Defendant “insisted it was Illinois law that I provide documents

of identification” and “threatened that if I did not produce my documentation he would arrest me

for trespass.” [84-1] at 2-3, ¶ 4.

1 Plaintiff contends that Defendant admitted at his deposition that he was not told until after Plaintiff was

placed under arrest that Plaintiff had been trespassing. However, the cited testimony, see [71-1] at 112

(Tr. 111:9-13), is ambiguous and in many other places in his deposition Defendant testified that security

personnel told him that Plaintiff had been trespassing when the parties met at the front of Navy Pier, before

Plaintiff was placed under arrest.

2 Defendant objects to Plaintiff’s affidavit on the basis of foundation because Plaintiff did not have a Navy

Pier radio to hear the radio communication between security personnel and Defendant. However, the record

indicates that security personnel were following Plaintiff at the time the communication was made, making

it possible that Plaintiff could have heard the security personnel’s side of the communication with

Defendant. Further, Defendant’s testimony does not establish that he was told via radio that Plaintiff had

been trespassing; instead, Defendant testified that he didn’t “know if it was a disturbance or it was a

trespass” when he met up with Plaintiff and security personnel. [74-4] at 39 (Tr. p. 78:16-18).

After security personnel and Defendant spoke, Defendant approached Plaintiff. Plaintiff

testified that he expressed that he wished to speak with Defendant and Defendant directed Plaintiff

toward a canopy. Plaintiff testified that he voluntarily walked over to the indicated area.

Defendant requested Plaintiff’s identification. Plaintiff testified that he responded to Defendant’s

request by stating “I’m happy to identify myself, but I do not want to give you my ID.” [74] at 6.

Defendant told Plaintiff that unless he produced his identification, Plaintiff would be arrested.

Plaintiff refused to produce his identification and pulled out his mobile telephone to call his

attorney. Security personnel informed Defendant that they wished to sign a criminal complaint

against Plaintiff for trespass.

Sophia Hardy (“Hardy”), Navy Pier’s security supervisor, signed two criminal complaints

against Plaintiff for trespass in violation of Illinois law. Each complaint states that Plaintiff

“knowingly entered upon the land other than a residence of Navy Pier located at 600 E. Grand

Ave. after receiving prior to such entry, notice from the agent Sophia Hardy that such entry was

forbidden.” [74-6] at 25, 26. Defendant knew Hardy and had never known her to be untruthful or

not credible. Defendant told Plaintiff he was under arrest and handcuffed Plaintiff. Defendant

arrested Plaintiff based on Hardy’s criminal complaints. It is disputed whether Plaintiff would

have been arrested if he had produced identification.

Plaintiff was taken to a security room inside Navy Pier. While Defendant was escorting

Plaintiff to the security room, Plaintiff told Defendant that he had permission to walk on the pier,

that he did not go anywhere he was not supposed to go, and that he did not do anything wrong.

Defendant removed Plaintiff’s GoPro camera and placed it and Plaintiff’s iPhone on the table in

the room. According to Defendant, he did not remove the camera’s micro SD card. Plaintiff

disputes this on the basis that Defendant was the last known person with possession, custody, and

control of the camera. Defendant emptied Plaintiff’s pockets and performed a search pursuant to

arrest, which included the removal of personal property and a protective pat down.

Plaintiff testified that he continued to explain to Defendant that he had permission to be on

the pier and that “this is ridiculous.” [74] at 8. Plaintiff testified that Defendant stated, “You

know, all you had to do was give me your ID and none of this would have happened.” Id. Plaintiff

told Defendant that he needed to turn off his camera because it was recording on a loop and he

needed to make certain that his evidence of getting permission to walk onto the pier was not

recorded over during the loop. Plaintiff testified that Defendant stated in response, “If Navy Pier

wants it erased, it will be erased.” Id. Plaintiff told Defendant “that would be destroying

evidence.” Id. at 9; see also [84] at 8. Defendant testified that he was not familiar with Plaintiff’s

GoPro camera and that he believed he would need a search warrant in order to access footage to

determine if there was in fact evidence on the camera. Defendant also testified that Plaintiff was

not allowed to handle his GoPro camera post-arrest because potential evidence could have been

destroyed.

Plaintiff testified that John Graeber (“Graeber”), Navy Pier’s safety and security director,

then arrived at the doorway of the security room. Plaintiff testified he recognized Graeber from

previous protests at Navy Pier and told Graeber that “this is ridiculous,” that he had permission to

be walking on the pier, [74] at 9, that he was arrested, and that he “wasn’t doing anything wrong.”

[84] at 8. Plaintiff testified that Graeber responded “Do you think I’m stupid” and walked away.

[74] at 9. Plaintiff testified that Graeber and Defendant did not communicate with one another

while Graeber was at the doorway of the security room.

Defendant presented Plaintiff with a notice of trespass. Plaintiff was transported to a

Chicago Police Station by two different CPD officers. According to Defendant, Plaintiff’s

personal belongings were placed in a prisoner property bag and transported to the Chicago Police

Department’s 18th District Police Station; Plaintiff disputes this based on his allegation that the

micro SD card was removed from his camera at Navy Pier, the police station, or somewhere in

between. Plaintiff received two bags with his personal property when he was released from the

police station. The day after his arrest, Plaintiff discovered that his micro SD card was missing

from his camera.

Navy Pier charged Plaintiff with criminal trespass. On August 3, 2015, Plaintiff was found

not guilty of trespass. Plaintiff subsequently filed this civil lawsuit against the Metropolitan Pier

and Exposition Authority (“MPEA”), Navy Pier, Inc. (“NPI”), Graeber, and Defendant on April

13, 2016. In May 2017, Plaintiff, MPEA, NPI, and Graeber filed a joint stipulation of dismissal

of those three defendants with prejudice pursuant to a written settlement agreement. Currently

before the Court are Plaintiff’s motion for partial summary judgment and Defendant’s motion for

summary judgment on all claims.

II. Legal Standard

Summary judgment is proper where “the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion

by *** citing to particular parts of materials in the record” or “showing that the materials cited do

not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce

admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). A genuine issue of material

fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary

judgment has the burden of establishing the lack of any genuine issue of material fact. See Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where, as here, the parties have submitted cross-

motions for summary judgment, the Court takes the motions “one at a time, construing all facts

and drawing all reasonable inferences in favor of the non-moving party.” Black Earth Meat

Market, LLC v. Village of Black Earth, 834 F.3d 841, 847 (7th Cir. 2016).

To avoid summary judgment, the nonmoving party must go beyond the pleadings and “set

forth specific facts showing that there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 250.

Summary judgment is proper if the nonmoving party “fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Ellis v. CCA of Tennessee LLC, 650 F.3d 640, 646 (7th Cir.

2011) (quoting Celotex, 477 U.S. at 322). The non-moving party “must do more than simply show

that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd.

v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In other words, the “mere existence of a scintilla

of evidence in support of the [non-movant’s] position will be insufficient; there must be evidence

on which the jury could reasonably find for the [non-movant].” Liberty Lobby, 477 U.S. at 252.

III. Analysis

A. Section 1983 False Arrest

In Count 1 of the Complaint, Plaintiff alleges that Defendant violated his rights under the

Fourth Amendment to the United States Constitution by arresting him for trespass without

probable cause to believe that he had committed a criminal offense. To prove a claim for false

arrest, a plaintiff must come forward with evidence that the defendant arrested the plaintiff; that

the defendant did not have probable cause to arrest the plaintiff; and that the defendant acted under

color of law. See Seventh Circuit Pattern Civil Jury Instruction 7.07 (rev. Aug. 2017). In this

case, there is no dispute that Defendant arrested Plaintiff while acting under the color of law as an

on-duty CPD police officer. The only issue before the Court is whether the arrest was supported

by probable cause.

“‘Probable cause is an absolute bar to a claim of false arrest asserted under the Fourth

Amendment and section 1983.’” Muhammad v. Pearson, 900 F.3d 898, 907 (7th Cir. 2018)

(quoting Stokes v. Board of Education of City of Chicago, 599 F.3d 617, 622 (7th Cir. 2010)).

“Probable cause exists if, at the time of the arrest, the facts and circumstances within the

defendant’s knowledge ‘are sufficient to warrant a prudent person, or one of reasonable caution,

in believing, in the circumstances shown, that the suspect has committed *** an offense.’” Id. at

908 (quoting Stokes, 599 F.3d at 622). The probable-cause standard is objective and “‘relies on

the common-sense judgment of the officers based on the totality of the circumstances.’” Jackson

v. Parker, 627 F.3d 634, 638 (7th Cir. 2010) (quoting United States v. Reed, 443 F.3d 600, 603

(7th Cir. 2006)).

“When, as here, the defendant[] ha[s] raised a qualified immunity defense to a false-arrest

claim,” the Court “‘review[s] to determine if the officer actually had probable cause or, if there

was no probable cause, whether a reasonable officer could have mistakenly believed that probable

cause existed’”—i.e. whether “arguable probable cause” existed. Fleming v. Livingston County,

674 F.3d 874, 878 (7th Cir. 2012) (quoting Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir.

1998)). “Arguable probable cause is established ‘when a reasonable police officer in the same

circumstances and with the same knowledge and possessing the same knowledge as the officer in

question could have reasonably believed that probable cause existed in light of well-established

law.’” Id. at 880 (quoting Humphrey, 148 F.3d at 725).

Where qualified immunity applies, it provides “immunity from suit, not just a defense to

liability.” Sebesta v. Davis, 878 F.3d 226, 233 (7th Cir. 2017) (citing Pearson v. Callahan, 555

U.S. 223, 231 (2009)). “Though it is an affirmative defense for pleading purposes, the plaintiff

carries the burden of showing that defendants are not immune.” Id. “‘Whether a government

official is entitled to qualified immunity is a legal question for resolution by the court, not a jury.’”

Spalding v. City of Chicago, 186 F. Supp. 3d 884, 907 (N.D. Ill. 2016) (quoting Purtell v. Mason,

527 F.3d 615, 621 (7th Cir. 2008)). Nonetheless, in cases where there are disputed questions of

material fact that bear on the qualified immunity analysis, a “trial is required before a determination

can be made as to whether [the defendant] is entitled to qualified immunity.” Chelios v. Heavener,

520 F.3d 678, 692 (7th Cir. 2008).

Plaintiff and Defendant have both moved for summary judgment on the unlawful arrest

claim. Both of their motions are denied due to the existence of at least one material factual dispute

that a jury must be allowed to resolve: whether Defendant was told by Navy Pier security

personnel prior to arresting Plaintiff that Plaintiff had been found trespassing in a restricted area

of Navy Pier.

The Court considers Plaintiff’s motion first. Construing the disputed facts and drawing all

inferences in Defendant’s favor, a jury could reasonably conclude that Defendant had probable

cause to place Plaintiff under arrest for trespass or, at the very least, that Defendant had arguable

probable cause and therefore is entitled to qualified immunity. According to Defendant’s

testimony, Navy Pier security personnel told him that Plaintiff had been in a restricted area of

Navy Pier and that he returned to the restricted area after being told to leave. Hardy signed a

complaint against Plaintiff for trespass. It was not necessary for Defendant to have witnessed the

alleged trespass “first-hand,” because “[a] report by a single, credible witness will suffice as a

basis for” knowledge that Defendant “committed or was committing trespass.” Kampinen v.

Martinez, 102 Fed. Appx. 492, 497 (7th Cir. 2004) (defendant officers “possessed probable cause”

to arrest plaintiff for trespass “given the criminal complaint initiated by a Mercantile Exchange

employee who reported that [plaintiff] was found in a restricted area and had refused to leave when

asked”).

Plaintiff contends that Defendant had a duty to conduct further investigation before

arresting him. Although a complaint from “‘a single witness is generally sufficient to establish

probable cause,’” this is not the case if “‘the officer has reason to question the witness’ account.’”

Bonds v. Fizer, 713 F. Supp. 2d 752, 761 (N.D. Ill. 2010) (quoting Reynolds v. Jamison, 488 F.3d

756, 765 (7th Cir. 2007)). When all factual disputes are resolved in Defendant’s favor, a

reasonable jury could conclude that Defendant had no reason to question security personnel’s

account that Plaintiff had been found trespassing in a restricted area or to perform any further,

independent, investigation. Defendant knew the Navy Pier security personnel who gave him the

information and had no reason to question their credibility or truthfulness. Defendant also

understood what the term restricted area meant and knew that Navy Pier had restricted areas that

were closed to the public. Compare Williams v. Southern Ill. Riverboat/Casino Cruises, Inc., 553

F. Supp. 2d 1041, 1047 (S.D. Ill. 2008) (holding on summary judgment that report of casino

security officer of an incident involving trespass taking place in the casino was not the type of

report that would cause a reasonable officer to be suspicious and perform additional investigation).

Plaintiff also emphasizes deposition testimony from Defendant suggesting that Defendant would

not have arrested Plaintiff if he had produced identification. But this does not conclusively

demonstrate a lack of probable cause to believe that Plaintiff was trespassing. If Plaintiff was

found trespassing, Navy Pier had a choice to pursue charges or not. It is not surprising that, if

Plaintiff had cooperated by producing identification, Navy Pier would have been less likely to

press charges. And if Defendant was told by Navy Pier personnel that Plaintiff was trespassing in

a restricted area, then he had at least arguable probable cause to place Plaintiff under arrest after

Plaintiff continually refused to show identification.

Defendant’s motion for summary judgment is also denied. Resolving all factual disputes

and drawing all inferences in Plaintiff’s favor, a reasonable jury could conclude that Defendant

lacked probable cause to arrest Plaintiff. According to Plaintiff’s declaration, Navy Pier security

personnel never told Defendant that Plaintiff had been trespassing or had been in a restricted area.

Plaintiff had at least an arguable basis for knowing this, because the Navy Pier security personnel

were following him when they made their radio call to Defendant, and all of the parties were

together when they converged at the front of Navy Pier. If Plaintiff is to be believed, he was in a

position to have heard security tell Defendant that he had been trespassing or in a restricted area,

but security said no such thing. Also, Defendant could not remember in his deposition exactly

what security told him over the radio. Defendant testified that he understood Navy Pier to be

public property and therefore would not have had any reason to presume that Plaintiff had been

trespassing unless security personnel told him that Plaintiff had been in a restricted area.

Although Hardy’s written complaints use the term “trespass,” they simply parrot the

language of the trespass statute and identify Plaintiff’s location as “Navy Pier” generally—not a

restricted area of Navy Pier or any specific location (such as the Grand Ballroom) that Defendant

knew to be a restricted area. Given Defendant’s knowledge that Navy Pier was public property,

the complaints contained no facts upon which Defendant could have concluded that Plaintiff had

committed a trespass. While a police officer generally has “‘no constitutional obligation to

conduct any further investigation in the hopes of uncovering potentially exculpatory evidence,’”

he must first have “‘discovered sufficient facts to establish probable cause’” before this principle

applies. Phillips v. Allen, 743 F. Supp. 2d 931, 942 (N.D. Ill. 2010) (emphasis added) (quoting

Schertz v. Waupaca County, 875 F.2d 578, 583 (7th Cir. 1989)). Moreover, taking Plaintiff’s

version of events as true, a jury could conclude that a reasonable officer would have been

suspicious of a complaint of trespass in light of the fact that until Plaintiff was arrested, the focus

of security personnel and Defendant had been on Plaintiff’s refusal to provide identification, rather

than on any alleged trespass in a restricted area.

Defendant’s entitlement to qualified immunity cannot be resolved at the summary

judgment stage, either. “There is no question that [Plaintiff]’s constitutional right to be free from

arrest without probable cause was clearly established at the time of the incident,” and further

factual development is necessary before the Court can determine whether “‘a reasonable police

officer in the same circumstances and with the same knowledge and possessing the same

knowledge as [Defendant] could have reasonably believed that probable cause existed in light of

well-established law.’” Fleming, 674 F.3d at 879-80 (quoting Humphrey, 148 F.3d at 725).

Accepting Plaintiff’s version of the facts as true, it is difficult to see how any officer, possessing

Defendant’s knowledge that Navy Pier is public property, could have reasonably believed that

Plaintiff could be arrested for trespass merely for being on Navy Pier. Notably, Defendant does

not argue that Navy Pier has a legal right to exclude members of the public from entering the pier

for any reason Navy Pier chooses. Nor does Defendant contend that Plaintiff’s refusal to provide

identification was itself illegal or that Defendant believed it was.

For these reasons, the Court concludes that neither side is entitled to summary judgment

on Plaintiff’s Section 1983 false arrest claim.

B. Conspiracy

In Count 24 of his complaint, Plaintiff alleges that Defendant committed conspiracy in

violation of 42 U.S.C. § 1983 and Illinois common law by “by reaching an understanding [with

Graeber and NPI] to act in concert with each other to deprive [Plaintiff] of his *** constitutional

rights.” [1] at 30. “To prevail on a conspiracy claim, ‘the plaintiff must show that (1) the

individuals reached an agreement to deprive him of his constitutional rights, and (2) overt acts in

furtherance actually deprived him of those rights.’” Daugherty v. Page, 906 F.3d 606, 612 (7th

Cir. 2018) (quoting Beaman v. Freesmeyer, 776 F.3d 500, 510 (7th Cir. 2015)). “Because

conspiracies are often carried out clandestinely and direct evidence is rarely available, plaintiffs

can use circumstantial evidence to establish a conspiracy, but such evidence cannot be

speculative.” Beaman, 776 F.3d at 511.

Defendant (but not Plaintiff) moves for summary judgment on the conspiracy claim. First,

Defendant argues that Plaintiff cannot establish an underlying constitutional violation and

therefore cannot pursue a conspiracy claim. This argument fails because, for the reasons explained

above, Defendant is not entitled to summary judgment on the Fourth Amendment false arrest

claim.

Second, Defendant argues that there is neither direct nor circumstantial evidence of an

agreement to deprive Plaintiff of his Fourth Amendment rights. However, Defendant fails to

develop this argument, see [75] at 10, and Plaintiff identifies a number of facts from which a

reasonable jury could infer that Defendant conspired with NPI security personnel to have him

arrested without probable cause to believe that he had actually committed a trespass in a restricted

area of Navy Pier. According to Plaintiff, he never entered a restricted area of Navy Pier and Navy

Pier security personnel never told Defendant, prior to Defendant placing Plaintiff under arrest, that

Plaintiff had been found in a restricted area or was trespassing. Nevertheless, according to

Plaintiff, Defendant threatened to arrest Plaintiff for trespass if he did not produce identification.

When Plaintiff refused, Hardy wrote out complaints for “trespass,” even though the complaints

contained no factual basis for that charge. Instead, they stated only that Plaintiff was on Navy

Pier, which is public property. Plaintiff also points to testimony from Defendant suggesting that,

if Plaintiff had produced identification, he would not have been arrested. These facts, taken

together and viewed in the light most favorable to Plaintiff, could lead a reasonable jury to

conclude Defendant and NPI personnel had an agreement to arrest Plaintiff for trespass based on

his refusal to produce identification, rather than based on their belief that Plaintiff had, in fact,

committed a trespass.

C. Negligent Spoliation

In Count 23 of his complaint, Plaintiff alleges a claim for negligent spoliation under Illinois

tort law. Plaintiff alleges that Defendant had a duty, but failed, to preserve his camera’s micro SD

card and Navy Pier video security footage, which were material to foreseeable civil and criminal

actions involving Plaintiff’s arrest, detention, and prosecution. Plaintiff further alleges that the

breach of Defendant’s duty of care proximately caused him damages.

“Illinois does not recognize an independent cause of action for spoliation of evidence.”

Hartmann Realtors v. Biffar, 13 N.E.3d 350, 356 (Ill. App. 2014). Instead, “an action

for negligent spoliation of evidence is recognized under general negligence law.” Id.; see also

Allstate Ins. Co. v. St. Anthony's Spine & Joint Institute, P.C., 691 F. Supp. 2d 772, 796 (N.D. Ill.

2010). “To prove a spoliation claim, a plaintiff must demonstrate that: ‘(1) the defendant owed

the plaintiff a duty to preserve the evidence; (2) the defendant 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.’” Grayson v. City of Aurora, 157 F. Supp. 3d 725, 748 (N.D. Ill. 2016) (quoting Martin

v. Keeley & Sons, Inc., 979 N.E.2d 22, 27 (Ill. 2012)). The Illinois Supreme Court has advised

that it is proper for “a single trier of fact [to] be allowed to hear an action for negligent spoliation

concurrently with the underlying suit on which it is based,” since “[a] single trier of fact [is] in the

best position to resolve all the claims fairly and consistently.” Boyd v. Travelers Ins. Co., 652

N.E.2d 267, 272 (Ill. 1995); see also Brobbey v. Enterprise Leasing Co. of Chicago, 935 N.E.2d

1084, 1098–99 (Ill. App. 2010). For instance, “[i]f a plaintiff loses the underlying suit, only the

trier of fact who heard the case would know the real reason why.” Boyd, 652 N.E.2d at 272. “This

factor is important because a spoliator may be held liable in a negligence action only if its loss or

destruction of the evidence caused a plaintiff to be unable to prove the underlying suit.” Id.

Plaintiff and Defendant both move for summary judgment on the negligent spoliation

claim. Plaintiff’s motion must be denied, because there is no way for the Court to determine at

this point whether Plaintiff will be “unable to prove” his underlying suit against Defendant on any

of his claims. As to Plaintiff’s suit against the defendants who have already been dismissed from

this action, Plaintiff did not lose that suit—instead, he settled with those defendants and dismissed

his suit pursuant to stipulation. Plaintiff has identified no precedent indicating that settling should

be consider a “loss” for purposes of a negligent spoliation claim, and the Court sees no reason why

that should be the case. And Plaintiff was found not guilty in the underlying criminal prosecution.

Defendant’s motion for summary judgment is denied, as well. Defendant argues that

Plaintiff will be unable to establish that the alleged negligent spoliation of the video evidence

proximately caused Plaintiff to be unable to prove his claims against Defendant, because

Defendant is entitled to summary judgment on the underlying claims, for the reasons explained in

his summary judgment motion. Since the Court is denying Defendant summary judgment on the

underlying claims, it cannot say at this point that Plaintiff will be unable to prove causation on his

negligent spoliation claim if he takes the underlying claims to trial and loses.

D. Remaining Claims

Defendant’s motion for summary judgment on Plaintiffs claim for exemplary damages

(Count 25) is also denied because Defendant’s only argument in support of that part of his motion

is that there “is no underlying liability to which damages may attach.” [75] at 10. Defendant’s

motion for summary judgment does not address Plaintiff's claim for attorneys’ fees and costs

(Count 28), and therefore Defendant has not shown that he is entitled to summary judgment on

that claim.

IV. Conclusion

For these reasons, the Court denies Plaintiff's motion for partial summary judgment [69]

and Defendant’s motion for summary judgment on all claims [73]. This case is set for status

hearing on April 16, 2019 at 9:00 a.m.

Dated: March 29, 2019

Robert M. Dow, Jr.

United States District Judge

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