Skip to Main Content

March 29, 2016
By: Alan J. Wolf

Let’s assume you are running a job and an I-beam you are installing fails and falls to the ground and several of your men are injured. You are informed of the accident and immediately go out to the jobsite to inspect. You take pictures of the site and the I-beam. The public agency that has jurisdiction as well as OHSA come out and make an inspection. The next day you destroy the I-beam. One of the reasons you do so is to salvage the embeds because the manufacturer informs you that a replacement can be made more quickly if the embeds are retrieved and sent back as soon as possible. Another reason you destroy the I-beam is because the public agency involved advised that you could not leave it where it fell. However, you acknowledge the beam could have been preserved by bringing in equipment to lift the beam and remove it from the jobsite.

Your employees file a lawsuit against the manufacturer of the I-beam and the designer of the bearing assembly and you. The employees lawsuit against you is based upon spoilation of evidence. The employees contend you had a duty to retain the beam as potential evidence; you breached that duty by destroying the beam and that as result they are not able to prove their claims against the manufacturer and designer. Are you liable?

The Illinois Supreme Court recently held a contractor in this situation was not liable to his employees for negligent spoilation of evidence. Spoilation of evidence is a form of negligence and in order to recover there first has to be a duty owed to preserve the evidence. As a general rule the law in Illinois is that there is no duty to preserve evidence. However, as you know there are exceptions to every general rule. There is a two prong test that a plaintiff must meet in order to establish an exception to the general “no-duty rule.” Under what is call the “relationship” prong of the test there needs to be shown an agreement, contract, statute, special circumstance or voluntary undertaking that gives rise to a duty to preserve the evidence. The second prong of the test is known as the “foreseeability” prong and here it needs to be shown that the duty extends to the specific evidence at issue and that a reasonable person in the circumstances that exist should have foreseen that the evidence was material to a potential civil action. If a plaintiff does not meet both prongs of the test there is no duty to preserve the evidence at issue.

The Illinois Supreme Court held that a voluntary undertaking requires a showing of affirmative conduct that reveals an intent to voluntarily assume a duty to preserve evidence. The Supreme Court found that the contractor’s conduct fell short of a voluntary undertaking to preserve evidence. The Court focused on the fact that the I-beam was not moved from where it fell. Also the fact the contractor, the public agency having jurisdiction and OSHA inspected the beam was not enough to constitute “affirmative steps to preserve the I-beam as evidence.”

The contractor’s employees also argued that “special circumstances” existed. They pointed to the contractor’s exclusive possession of the I-beam; his status as their employer; and his status as a potential litigant. The Supreme Court did not agree. As far as possession is concerned the Court held that more than possession is required such as a request by the plaintiff to preserve the evidence and/or segregation of the evidence for the plaintiff’s benefit. The Court also held that the employer-employee relationship in itself is not a “special circumstance” giving rise to the duty to preserve evidence. In rendering its decision the majority opinion glossed over the contractor’s position as a potential litigant. There was a dissenting judge who found that “special circumstances” did exist because the contractor admitted the accident would be the basis for future litigation and the fact that the plaintiff’s did not request that he preserve the I-beam was due to the fact they were hospitalized and could not act on their own.

If you have a job and an accident occurs what should you do? Although the general rule is you have no duty to preserve evidence I would counsel that you take a more conservative approach than what the contractor did in this case. Today’s society is prone to litigation and everyone knows that lawsuits are commonly filed. In my opinion it was a “stretch” to find that “special circumstances” did not exist. If the I-beam had been preserved and tested it may very well have been found a defect existed in its manufacture or that the bearing assembly was defective. If you are faced with a similar situation be cautious in what you do.