awarding summary judgment to defendant on plaintiff’s negligent spoliation claim where plaintiff could not prove elements of the underlying claim
How later courts described this case
- awarding summary judgment to defendant on plaintiff’s negligent spoliation claim where plaintiff could not prove elements of the underlying claim
Written by the judges who cited it.
The opinion
JUSTICE BARTH, specially concurring in part and dissenting in part:
I concur with the court’s affirmance of the grant of summary judgment as to count I (medical negligence). I disagree, however, with the court’s disposition with respect to count II (spoliation of evidence). Therefore, I respectfully dissent.
Our supreme court has recognized the existence of a common law cause of action for the negligent spoliation of evidence. Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 194 (1995). There, the court said that while there is generally no duty to preserve evidence, “a duty of due care to preserve evidence [arises] if a reasonable person in the defendant’s position should have foreseen that the evidence was material to a potential civil action.” Travelers, 166 Ill. 2d at 195 .
Summary judgment was granted to defendant as to count I (medical negligence) because of the rule laid down in Majca v. Beekil, 183 Ill. 2d 407 (1998), that in cases such as this, the plaintiff must allege and prove actual exposure to pathogens. This case differs fundamentally from Majca. There, the plaintiff disposed of the possibly contaminated scalpel herself, rendering it unavailable for examination. Here, the (at the time, potential) defendant cleansed the scope without examination or testing, thereby destroying plaintiffs ability to establish the Majca requirement of actual exposure to pathogens. However, I read nothing in Majca that bars the cause of action recognized in Boyd. The court in Boyd held that a plaintiff in a negligence action involving the loss or destruction of evidence must show that the loss or destruction of evidence caused the plaintiff to be unable to prove an underlying lawsuit, not that he would have prevailed. Boyd, 166 Ill. 2d at 196 .
If Majca requires that plaintiff prove actual exposure, then surely Boyd requires that defendant preserve the evidence in the instant case. Long ago, Justice Cardozo stated as a fundamental principal embodied in our public policy that “no one shall be permitted to take advantage of his own wrong.” Messersmith v. American Fidelity Co., 232 N.Y. 161, 162 , 133 N.E. 432, 433 (1921). Despite defendant’s protestations to the contrary, I do not believe the steps it took in this unfortunate case were adequate as a matter of law. I believe plaintiff has stated a cause of action for negligent spoliation of evidence and that he is entitled to have the questions of liability and damages submitted to a trier of fact.