Find Legal Information

JUSTICE GROMETER delivered the opinion of the court:

Plaintiff, James Andersen, filed a wrongful death, productliability, negligence, and survival action in connection with thedeath of his father, Daniel Andersen (Daniel), who was killed in awork-related accident. The complaint named Galbreath, Inc.(Galbreath), and Mack Trucks, Inc. (Mack), as defendants. Thisappeal arises from the dismissal, with prejudice, pursuant toSupreme Court Rule 304(a) (155 Ill. 2d R. 304(a)), of Galbreath'ssecond-amended third-party complaint for negligent spoliation ofevidence against Daniel's employer, BFI Waste Systems of NorthAmerica, Inc. (BFI). We affirm the portion of the order dismissingGalbreath's complaint. We reverse insofar as the dismissal is withprejudice and remand for further proceedings.

The original complaint alleged that Daniel was killed onFebruary 14, 2000, when a hydraulic hose in the hoist mechanism ofthe truck he was operating for BFI ruptured, causing the mechanismto fail and the load to lower onto him. Mack manufactured thetruck involved, and Galbreath manufactured the hoist mechanism. Galbreath filed a third-party complaint against BFI forcontribution, on the basis that BFI had been negligent in itsrepair and maintenance of the equipment and in the training of itsemployees.

The court dismissed Galbreath's contribution complaint inaccordance with the rule in Kotecki v. Cyclops Welding Corp., 146Ill. 2d 155 (1991), when BFI agreed to release its workers'compensation lien. Galbreath then filed its first-amendedcomplaint, which alleged that BFI's negligent loss of the truck andrelated equipment had impaired its ability to defend itself in theunderlying suit. The court dismissed this complaint and Galbreathfiled its second-amended complaint, which alleged essentially asfollows.

The Waukegan police, the Occupational Safety and HealthAdministration (OSHA), and an engineering consulting firm, TriodyneEngineering, each investigated the accident that killed Daniel.

Three days after the accident, on February 17, 2000, BFI'sWaukegan district manager wrote to Galbreath informing it of thefatality and requesting that a service representative inspect theequipment. The letter also informed Galbreath that BFI intended toplace the equipment back in service on March 1, 2000.

On February 21, 2000, Galbreath's engineering manager made a"brief visual inspection" of the equipment at BFI's Waukeganfacility. BFI had secured the truck and segregated it from otherBFI trucks and equipment.

Some time "shortly after" the inspection, Galbreath sent theWaukegan district manager a letter requesting that he turn overevidence relating to Daniel's death, including the ruptured hose. Galbreath asked that the hose be preserved if it could not be turned over. We note that the letter is undated, and the date onwhich it was sent cannot be determined from the record.

On April 1, 2000, BFI sold the equipment to Onyx WasteServices, Inc. (Onyx). (Although it is not specifically alleged byGalbreath, we note that the record reflects that the equipment wassold as part of the sale of BFI's entire Waukegan operation toOnyx.)

BFI did not inform Galbreath of the sale of the equipment atthe time the third-party complaint was filed and did not complywith discovery demands for the equipment. BFI first informed Galbreath of the sale of the equipment in a letter dated May 2,2001.

Galbreath ultimately succeeded in locating the truck at theOnyx facilities, but the hoist and the hose were not recovered.

OSHA's report on the accident suggests that BFI had modifiedthe truck, hoist, and hose.

Finally, Galbreath alleged that, had the equipment beenpreserved, it would have established the "lack of defectattributable to Galbreath and/or the merit of one or moreaffirmative defenses based upon third-party modification or otherintervening causes. *** Absent that evidence, Galbreath may not beable to prove these defenses, and its ability to defend itself inthe [u]nderlying [l]itigation has been impaired."

BFI moved to dismiss this complaint under section 2--615 ofthe Code of Civil Procedure (735 ILCS 5/2--615 (West 2000)). Thismotion was granted with prejudice. The order stated that thecomplaint had failed to allege a duty owed by BFI to Galbreath, thebreach of such a duty, and the breach's proximate cause of damagesto Galbreath. The trial court found no just reason to delay appealof the dismissal order, and this appeal followed.

A motion to dismiss a complaint under section 2--615 should begranted only when the allegations in the complaint, construed inthe light most favorable to the plaintiff, fail to state a cause ofaction upon which relief can be granted. Oliveira v. Amoco OilCo., 201 Ill. 2d 134, 147 (2002). All well-pleaded facts andinferences drawn from those facts are accepted as true. Oliveira,201 Ill. 2d at 147. We review a dismissal under section 2--615 denovo. Oliveira, 201 Ill. 2d at 147-48.

The Illinois Supreme Court set forth the elements needed fora spoliation of evidence claim in Boyd v. Travelers Insurance Co.,166 Ill. 2d 188 (1995). Spoliation of evidence is not anindependent basis for a tort claim, but relief is available if aclaim can be stated under ordinary negligence law. Boyd, 166 Ill.2d at 193. Thus, the plaintiff in a spoliation of evidence casemust plead the existence of a duty, a breach of the duty, an injuryproximately caused by the breach, and damages. Boyd, 166 Ill. 2dat 194-95.

No general duty to preserve evidence exists, but a duty canarise out of an agreement or contract, a statutory requirement, oranother special circumstance, such as the assumption of the duty byaffirmative conduct. If one of these pertains, then a defendant"owes a duty of due care to preserve evidence if a reasonableperson in the defendant's position should have foreseen that theevidence was material to a potential civil action." Boyd, 166 Ill.2d at 195.

In Boyd, the plaintiff alleged that he was at work in hisemployer's van when a propane heater exploded, seriously injuringhim. The heater was the plaintiff's personal property. Thedefendant, the plaintiff's employer's insurer, took possession ofthe heater, saying that it was needed to investigate theplaintiff's workers' compensation claim. However, the heater waslost before any testing was completed. The defendant's employeeswere aware of the relevance of the heater to future litigation. Bytaking control of the heater under the circumstances described, thedefendant assumed a duty to preserve it. Boyd, 166 Ill. 2d at 195.

Boyd articulates a two-prong test for the existence of a dutyto preserve evidence: (1) an agreement, contract, statutoryrequirement, or other special circumstance such as the assumptionof the duty by affirmative conduct (the relationship prong), and(2) that a reasonable person in the defendant's position shouldhave foreseen that the evidence was material to a potential civilaction (the foreseeability prong). Boyd, 166 Ill. 2d at 195.Unless both prongs are satisfied, there is no duty to preserveevidence. Boyd, 166 Ill. 2d at 195.

The Illinois Supreme Court offered some insight into thecircumstances that give rise to a duty to preserve evidence inMiller v. Gupta, 174 Ill. 2d 120 (1996). In Miller, the court allowed the plaintiff to amend the spoliation count of hercomplaint where the record suggested that the evidence sought hadbeen destroyed after the plaintiff's attorney had requested it fromthe defendant and while it was segregated, as a result of therequest, from other similar material. Miller, 174 Ill. 2d at 123-24. Miller did not hold that these facts, if properly pleaded,would give rise to a duty to preserve the evidence; it did considerthese facts significant in its decision to remand and allow theplaintiff to replead her spoliation complaint. Thus, Miller givesan additional indication of the sort of special circumstances thatgive rise to a duty to preserve evidence.

Two Fifth District cases, cited by Galbreath in support of itscomplaint, seem to eliminate the relationship prong from Boyd. InJones v. O'Brien Tire & Battery Service Center, Inc., 322 Ill. App.3d 418 (2001), the court stated that a "plaintiff in a negligencecase based upon spoliation of evidence need only allege that areasonable person in the defendant's position should have foreseenthat the evidence in question was material to a potential civilaction. There is no requirement that the plaintiff allege theexistence of any 'special relationship' which would give rise tothat knowledge. *** [T]he existence of a 'special relationship' *** would help to establish *** foreseeability ***." Jones, 322 Ill.App. 3d at 422-23.

In Jones, a tire separated from a landscaper's truck andkilled the plaintiff's decedent. The plaintiff settled theresulting claim with the landscaper and then sued the servicecenter, which was alleged to have negligently attached the tire. Jones, 322 Ill. App. 3d at 419. The service center filed a third-party complaint against the landscaper, alleging that he hadnegligently disposed of the tire assembly, thus impairing the tirecenter's ability to defend itself. Jones, 322 Ill. App. 3d at420. The landscaper's insurer had requested that he preserve thetire assembly, but there was no allegation that the service centermade such a request. Jones, 322 Ill. App. 3d at 419. The courtheld that foreseeability of the need for the tire assembly asevidence, coupled with ownership and possession of it after theaccident, was a sufficient special circumstance to establish thelandscaper's duty to preserve the tire assembly for any potentialparty's benefit. See Jones, 322 Ill. App. 3d at 422-23. Thisanalysis merges the relationship prong of Boyd into theforeseeability prong and, contrary to Boyd, creates a general dutyto preserve evidence.

In Stinnes Corp. v. Kerr-McGee Coal Corp., 309 Ill. App. 3d707 (1999), the court took a similar approach. The court quotedBoyd as saying " 'a defendant owes a duty of due care to preserveevidence if a reasonable person in the defendant's position shouldhave foreseen that the evidence was material to a potential civilaction.' " Stinnes Corp., 309 Ill. App. 3d at 715, quoting Boyd,166 Ill. 2d at 195. However, the full sentence in Boyd was "In anyof the foregoing instances, a defendant owes a duty of due care topreserve evidence if a reasonable person in the defendant'sposition should have foreseen that the evidence was material to a potential civil action." (Emphasis added.) Boyd, 166 Ill. 2d at195. The "foregoing instances" referred to were the existence ofa contract or any of the other circumstances satisfying therelationship prong. Boyd, 166 Ill. 2d at 195. Again, the FifthDistrict eliminates the relationship prong from Boyd.

The analysis in Jackson v. Michael Reese Hospital & MedicalCenter, 294 Ill. App. 3d 1 (1997), of a spoliation claim for lossof X rays allegedly needed to prove a malpractice claim stands incontrast to the reasoning in Jones and Stinnes Corp. In Jackson,the spoliation count of the complaint had been dismissed forfailure to state a claim upon which relief could be granted. Jackson, 294 Ill. App. 3d at 5. The court recited both prongs ofthe duty standard in Boyd (Jackson, 294 Ill. App. 3d at 10-11) andthen explained why the complaint was factually insufficient tosatisfy the relationship prong (Jackson, 294 Ill. App. 3d at 11-13). In Jackson, the plaintiffs alleged that the hospital hadvoluntarily assumed a duty to preserve the X rays, but failed tospecify what conduct by the hospital indicated such an undertaking. Jackson, 294 Ill. App. 3d at 11. Although the complaint wasinadequate, the court permitted the plaintiffs to amend it. Therecord suggested that the hospital had segregated the evidence intoa special litigation file--a circumstance that might establish thevoluntary assumption of a duty to preserve the evidence. SeeJackson, 294 Ill. App. 3d at 11-12. Had this set of facts beenadequately pleaded, the court suggested, Boyd's foreseeabilityprong would have been satisfied as well. See Jackson, 294 Ill.App. 3d at 10-11. Jackson is thus an appropriate application ofthe full standard in Boyd, but Jones and Stinnes Corp. are not.

In this case, Galbreath does not allege any contract oragreement between BFI and itself, nor does it allege that BFI hadany statutory or regulatory duty to preserve the evidence. SinceBFI had informed Galbreath that the truck was to be put back intoservice approximately two weeks after the accident, Galbreathcannot plead that BFI voluntarily undertook to preserve theevidence specifically regarding the truck. Galbreath suggests thatits undated letter sent "shortly after" its inspection of thetruck, requesting that BFI turn over or preserve the hose andrelated evidence, constitutes a special circumstance imposing aduty to preserve evidence. We decline to hold that a mere requestthat a party preserve evidence is sufficient to impose a dutyabsent some further special relationship. We will not speculate asto what other facts Galbreath could plead to establish theexistence of a duty.

The plaintiff in a spoliation of evidence case must also pleadbreach of the duty to preserve evidence. In the usual case, wherethe plaintiff has had no opportunity to inspect the evidence incontemplation of litigation, establishing the inadequate protectionof the evidence would be sufficient to plead the breach of theduty. See, e.g., Jackson, 294 Ill. App. 3d at 13. Here, Galbreathhad the opportunity to, and did in fact, inspect the equipmentbefore it was lost. Arguably, the duty could have terminated withthe inspection. The scope of the duty to preserve evidence has notbeen at issue in other Illinois spoliation cases, but, by naturalextension of the reasoning in Boyd, we conclude that the dutyremains as long as the defendant should reasonably foresee thatfurther evidence material to a potential civil action could bederived from the physical evidence in the defendant's possession,e.g., testing, microscopic examination, chemical analysis, etc. See Boyd, 166 Ill. 2d at 193. Galbreath has not pleaded any factsthat would indicate that BFI should have known, prior to sellingthe equipment, that further inspection or testing of the equipmentwould provide additional information material to a potential civilaction. Absent this, we cannot say that any duty BFI may have owedGalbreath was not satisfied by allowing the inspection of theequipment; thus, Galbreath has not successfully pleaded that BFIbreached its duty.

Further, Galbreath's complaint does not sufficiently allege aninjury proximately caused by the alleged breach of duty. The Boydcourt stated that to plead proximate cause "a plaintiff must allegesufficient facts to support a claim that the loss or destruction ofthe evidence caused the plaintiff to be unable to prove anunderlying lawsuit." (Emphasis in original.) Boyd, 166 Ill. 2d at196. Galbreath here alleges that the loss of the evidence causedit to be unable to prove an affirmative defense based on third-party modification of the equipment or another intervening cause.

BFI has argued that Galbreath has other defenses not dependenton the lost evidence. Obviously, this is not relevant to adismissal under section 2--615 unless taken as a contention thatGalbreath must allege that the defense it claims it has lost is theonly possible defense. To remain consistent with Boyd, clearly theplaintiff must allege that the destruction of evidence has causedthe plaintiff to be unable to defend the underlying lawsuit. Thus,Galbreath must allege specific facts that if proven would showthat, due to the loss of evidence, it will lose the underlyingcase, and not that one specific defense will become unavailable toit.

Galbreath's allegation of proximate cause is conclusory; itfails to allege a nexus between the loss of the evidence and theloss of its chosen defense, and therefore it would be inadequateeven without regard to extra pleading requirements created by thecircumstances of this case. The Jackson court required theplaintiffs to plead how the loss of X rays specifically preventedthem from obtaining a certificate of merit for their malpracticeclaim. Jackson, 294 Ill. App. 3d at 15. Similarly, in Thornton v.Shah, 333 Ill. App. 3d 1011, 1020-21 (2002), the court required aspecific explanation of how phone records missing from theplaintiff's decedent's medical records prevented the plaintiff fromproving the defendant's medical negligence. Galbreath fails toplead specifically what it could have done with the equipment thatit cannot do now, or what it could have done in addition to itsoriginal inspection, and why this is critical to its defense. Further, Galbreath has not alleged facts that would show why it canreasonably rely only on the defense it alleges it has lost.

Galbreath faces an additional barrier. It specificallyalleges that the OSHA report indicated possible postmanufacturealterations to the equipment. While this is helpful to Galbreathin that it suggests why postmanufacture alteration might be itsbest defense, it puts Galbreath in the position of having to pleadwhat evidence it could have obtained from the equipment that itcould not obtain from the report. Such allegations are absent.

The circuit court dismissed Galbreath's complaint withprejudice. A complaint should be dismissed with prejudice undersection 2--615 only if it is clearly apparent that no set of factscan be proven that will entitle the plaintiff to recover. IllinoisGraphics Co. v. Nickum, 159 Ill. 2d 469, 488 (1994). The decisionto deny leave to amend is within the sound discretion of the trialcourt. Cantrell v. Wendling, 249 Ill. App. 3d 1093, 1095 (1993);see also Clemons v. Mechanical Devices Co., 202 Ill. 2d 344, 351(2002). However, the trial court should exercise its discretionliberally in favor of allowing amendments if doing so will furtherthe ends of justice, and any doubts should be resolved in favor ofallowing amendments. Cantrell, 249 Ill. App. 3d at 1095. We holdthat the dismissal with prejudice was an abuse of discretion, giventhe unsettled nature of the law in this area.

Admittedly, this is a close case. The complaint dismissed wasGalbreath's second spoliation of evidence complaint, and it appearsto be little closer to successfully pleading a duty than the first. The primary difference in this respect between the two complaintsis that the first alleged that the undated letter was sent "shortlyafter the accident," whereas the second states that it was sent"shortly after" Galbreath's visual inspection of the truck andattached hose and hoist. The second complaint is thus strongerthan the first only in that it suggests that the undated letter waslikely responsive to BFI's letter stating that the truck was to bereturned to service. On the other hand, as discussed above, thevarious districts of the appellate court have not been consistentin their interpretation of Boyd. Galbreath's reliance on Jones andStinnes Corp. was reasonable. Further, Boyd and Miller provideonly limited guidance as to what constitutes a special circumstanceleading to a duty. In light of our analysis and given the state ofthe law, we believe Galbreath should be allowed to replead.

Accordingly, we affirm that portion of the trial court's orderdismissing Galbreath's second-amended complaint under section 2--615, we reverse insofar as the dismissal is with prejudice, and weremand the cause to the trial court to allow Galbreath to repleadand for further action consistent with this opinion.

Affirmed in part and reversed in part; cause remanded withdirections.

McLAREN, J., concurs.

JUSTICE KAPALA, specially concurring:

I agree with the majority's decision to reverse the judgmentof the trial court and remand for further proceedings. I writeseparately, however, because I disagree with the majority'sreasoning, which I believe leads to impractical pleadingrequirements not dictated by our supreme court in Boyd v. TravelersInsurance Co., 166 Ill. 2d 188 (1995).

The majority correctly summarizes Boyd's test to determine theexistence of a duty to preserve evidence; however, I believeGalbreath's third-party complaint against BFI satisfies Boyd'srequirements. According to the complaint, BFI secured andsegregated the truck, hoist, and hose mechanism and invited arepresentative of Galbreath to view it. After Galbreath brieflyvisually inspected the evidence at BFI's facility, Galbreathrequested BFI to turn over the hose or, in the alternative, topreserve it. The complaint alleges that BFI invited the Waukeganpolice department to investigate the accident. OSHA alsoinvestigated it. Either BFI or its insurer retained TriodyneEngineering to review the matter. From these allegations, I thinkit is reasonable to infer that BFI was aware of the importance ofthis evidence and knew that litigation was in the offing. Theseallegations are sufficient to state a duty under Boyd. In securingand segregating the evidence, BFI voluntarily assumed a duty topreserve it at a time when BFI knew that the equipment was relevantto future litigation. Boyd does not require anything more. InBoyd, the defendant's duty to preserve the heater was predicatedupon its assuming a duty to preserve it where (1) it took physicalpossession of the heater when it (2) knew that the heater wasevidence relevant to future litigation. Boyd, 166 Ill. 2d at 195.

The majority concludes that the act of informing Galbreaththat the truck would be placed back in service negates theassumption of the duty to preserve it. In my view, its statedintention to place the truck back in service is irrelevant. BFIassumed a duty to preserve the evidence. BFI did not assume a dutyto refrain from putting the equipment back in service. So long asthe evidence is not altered in any material respect, a fact that isnot borne out by this record, whether the truck was in service isnot significant. What is significant is that by securing andsegregating the evidence BFI assumed a duty to preserve it. Thatduty continues whether or not the truck is put back in service. The analysis here might change if BFI had informed Galbreath thatit was disposing of the truck on March 1, 2000, but such is not thecase.

The majority is too strict and rigid in its interpretation andapplication of what it calls the relationship prong of Boyd's testto establish a duty to preserve evidence. In my view, themajority's approach goes beyond what was contemplated by oursupreme court. This is made plain by our supreme court's opinionin Shimanovsky v. General Motors Corp., 181 Ill. 2d 112 (1998). Shimanovsky held that a potential litigant owes a duty "to takereasonable measures to preserve the integrity of relevant andmaterial evidence." Shimanovsky, 181 Ill. 2d at 121. This duty,our supreme court said, "is based on the court's concern that, wereit unable to sanction a party for the presuit destruction ofevidence, a potential litigant could circumvent discovery rules orescape liability simply by destroying the proof prior to the filingof a complaint." Shimanovsky, 181 Ill. 2d at 121. Thus, forpurposes of enforcing its discovery rules, our supreme court hasimposed a duty to preserve evidence even in the absence of anyrelationship or court order. The difference between the scope ofthe duty in Shimanovsky and Boyd is that Boyd employs traditionalnegligence principles, whereas the authority to sanction found inShimanovsky is derived from the supreme court's discovery rules. All Boyd does is erect a tort framework to allow a party who hasbeen injured as a result of the destruction of evidence to recoverdamages. Where the wrongs addressed by the two cases areidentical, and the injuries forseeable, Boyd cannot be interpretedto contemplate a strict and rigid relationship test as a thresholdto alleging a duty and remain consistent with the duty imposed inShimanovsky. The majority creates an untenable anomaly. Had itbeen Andersen, the first-party plaintiff, who got rid of theevidence, first-party defendant Galbreath could obtain sanctions inthe form of barring any testimony concerning the equipment or evendismissal of Andersen's complaint. See Ralston v. Casanova, 129Ill. App. 3d 1050, 1056-57 (1984). But because BFI is not a partyto the underlying suit, Galbreath is potentially left without aremedy unless it can sue BFI in tort for negligent spoliation ofthe same evidence.

The majority misconstrues the holding in Jackson v. MichaelReese Hospital & Medical Center, 294 Ill. App. 3d 1, 10 (1997). All Jackson required was that the plaintiff "sufficiently describewhat affirmative conduct was voluntarily undertaken by thehospital." Jackson, 294 Ill. App. 3d at 11. There, the record indicated that the hospital may have voluntarily assumed a duty tomaintain the X rays where it had notice of the litigation andsegregated the X rays into a separate litigation file. Jackson,294 Ill. App. 3d at 11. The plaintiff in Jackson, however, failedto plead these facts in the complaint. Jackson, 294 Ill. App. 3dat 12. In our case, Galbreath has sufficiently pleaded a voluntaryassumption of duty giving rise to a duty to preserve the evidence.

Likewise, Galbreath pleaded breach of duty. I believe allthat is necessary to plead breach of duty is to plead thedestruction of the evidence at a time when BFI knew or should haveknown that the evidence was relevant to future litigation. Galbreath's complaint alleged that "[a]t all times since[d]ecedent's death, BFI knew or should have known that the truck,hoist and hose involved in [d]ecedent's death were materialevidence in future or pending litigation arising from that death***. BFI breached its duty to preserve evidence by, among otherthings, selling the truck, hoist and hose and relinquishingpossession, custody and control of that evidence to a third party." These allegations are sufficient to plead breach of duty.

The majority is mistaken when it concludes that "Galbreath hasnot pleaded any facts that would indicate that BFI should haveknown, prior to selling the equipment, that further inspection ortesting of the equipment would provide additional informationmaterial to a potential civil action." Slip op. at 10. Galbreathpleaded that BFI called Waukegan police officers and otheremergency personnel to the scene to conduct an investigation. Galbreath also pleaded that BFI, either directly or through itsinsurer, hired its own engineers to investigate the incident. Accepting all well-pleaded facts and inferences as true, thecomplaint shows that BFI was aware of the gravity of the situationand should have known that further testing of the equipment wouldprovide additional material information. Surely, if BFI thought itwas necessary to bring in experts on this matter, it should haveknown that Galbreath should be given the opportunity to conduct anexpert investigation of its own. Moreover, Galbreath alleged thatafter the brief visual examination BFI permitted, it requested thatthe hose be turned over or, at the very least, be preserved. Galbreath also pleaded that OSHA's investigation of the accidentincluded several senior BFI employees. OSHA's report intimatedthat BFI altered the product. BFI should have known that experttesting by Galbreath would be necessary to explore this defense. I further disagree with the majority's conclusion thatGalbreath's complaint does not sufficiently allege an injuryproximately caused by the alleged breach of duty. "Thepreservation of an allegedly defective product is of upmostimportance in both proving and defending against a strict liabilityaction." Graves v. Daley, 172 Ill. App. 3d 35, 38 (1988). Thesecond of the two paragraphs numbered 24 of plaintiff's complaintalleges: "If the truck, hoist and hoses had been preserved in theircondition at the time of the incident and were available forinspection now and at the time of trial, that evidence wouldestablish the lack of any defect attributable to Galbreath and/orthe merit of one or more affirmative defenses based upon subsequentthird-party modification or other intervening causes. With thebenefit of the evidence that BFI has improperly failed to preserve,Galbreath would be able to establish these defenses in the[u]nderlying [l]itigation. Absent that evidence, Galbreath may notbe able to prove these defenses, and its ability to defend itselfin the [u]nderlying [l]itigation has been impaired." I think thisis sufficient. The test set forth by the majority requiresGalbreath to plead that it will lose the underlying case. This isan impossible burden. Short of clairvoyance, Galbreath cannot know it will lose. A judge or jury will have to decide whetherGalbreath loses based upon a multitude of factors outside the issueof whether BFI improperly destroyed the equipment. Also, this testis too close to the one rejected by Boyd, that a plaintiff mustplead that it would have prevailed in the underlying suit. Boyd,166 Ill. 2d. at 196 n.2. Moreover, because Galbreath is a third-party plaintiff, BFI's liability to it is necessarily contingentupon the outcome of the underlying suit.

I further disagree that Galbreath has not pleaded a nexusbetween the destruction of the evidence and its loss of a defense. Galbreath pleaded that an inspection of the lost evidence wouldestablish that any defect was not attributable to Galbreath or wascaused by third-party modification of the truck and hoist mechanismor other intervening causes. Without the evidence, Galbreathcannot plead more specifically what the lost evidence would show. Boyd recognized that the causation element is satisfied where, dueto the destruction of the evidence, the plaintiff is deprived ofthe opportunity to present expert testimony that the product wasdefective or dangerously designed. Boyd, 166 Ill. 2d at 197. Again, in this context, the majority reads more into Jackson thanis there. Jackson simply required the plaintiff to plead thesignificance of the lost X rays. Jackson, 294 Ill. App. 3d at 15. Here, Galbreath has pleaded that the significance of the lost hoseand related equipment was that they would demonstrate that anyalleged defect was not attributable to Galbreath or was the resultof third-party modification or other intervening causes.

Boyd's analysis was not at all convoluted. It was premised onthe obvious: the allegedly defective product, maintained in thecondition it was in at the time of the occurrence, aids indetermining whether the product is defective and how the defectoccurred, and is far more instructive to a fact finder thanphotographs or oral descriptions. See Kambylis v. Ford Motor Co.,338 Ill. App. 3d ___, ___, 788 N.E.2d 1, 5 (2002). It was found tobe sufficient in Boyd to allege that, as a result of the loss ofthe heater, no expert could testify without doubt whether theheater was defective or dangerously designed. Boyd, 166 Ill. 2d at197. Boyd did not require that the plaintiffs plead thesignificance of the heater to their cause of action.

The majority errs when, without citing authority, it positsthat Galbreath must plead what evidence it could derive from theactual testing of the mechanism that it cannot obtain from the OSHAreport. First of all, I see nothing in Boyd, Jackson, or Thorntonv. Shah, 333 Ill. App. 3d 1011 (2002), that imposes such a pleadingrequirement. Moreover, and as a matter of fact, there is noindication the OSHA report was made by an engineer competent torender expert opinions concerning the alteration of the mechanismor the effect of other intervening causes. Also, Galbreath wasentitled to have its own experts, rather than OSHA's, renderopinions, an opportunity that was forever foreclosed.

While Galbreath need not plead that it will lose the underlyingcase, its complaint needs to be more definite than it is. Galbreath's complaint states, "Absent that evidence, Galbreath may not be able to prove these defenses, and its ability to defenditself in the [u]nderlying [l]itigation has been impaired." (Emphasis added.) Galbreath needs to plead more than that it "may"not be able to prove its defenses.

I would prefer the following test: a party in Galbreath'sposition must be able to plead and prove that the destruction ofevidence has significantly impaired its ability to advance ameritorious defense. This test, I believe, is in keeping withBoyd's requirement that a plaintiff must demonstrate that, but forthe loss or destruction of the evidence, the plaintiff had areasonable probability of succeeding in the underlying suit. Boyd,166 Ill. 2d. at 196, 197 n.2.

Thus, for the above reasons, I agree to reverse and remand tothe trial court for further proceedings.