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Docket No. 97900-Agenda 35-September 2004.

JAMES DARDEEN, Appellee, v. ALICE KUEHLING et al. (State
Farm Insurance Company, Appellant).

Opinion filed December 2, 2004.
 

JUSTICE FITZGERALD delivered the opinion of the court:

State Farm Insurance Company (State Farm)⁽¹⁾ appeals thedecision of the appellate court reversing the circuit court of WabashCounty's order granting summary judgment against James Dardeen onhis negligent spoliation of evidence claim. The central issue in thiscase is whether a homeowner's insurer has a duty to instruct thehomeowner to preserve evidence which may be relevant to a potentialpersonal injury claim by someone injured on the homeowner'sproperty. We conclude that, on the facts in this case, the insurer hasno such duty. We reverse the appellate court and affirm the trial court.

BACKGROUND

On the morning of September 1, 1999, while deliveringnewspapers with his daughter, James Dardeen fell in a hole on thebrick sidewalk outside Alice Kuehling's house. Dardeen fractured hisright elbow. Because it was not yet light, Dardeen bent down to geta closer look at the hole. Dardeen and his daughter subsequentlydescribed the hole as 12 inches wide and 4 to 6 inches deep, "the sizeof a dinner plate."

Dardeen's daughter telephoned Kuehling later that day to notifyher of the accident and request the name of her insurer. Kuehlinginstructed Dardeen's daughter, "[S]end your father up to my housethis evening and I'll talk to him." Kuehling then telephoned her StateFarm agent, Ronald Couch. Kuehling told Couch that several brickswere "cocked up" where Dardeen fell, making the sidewalk uneven.She asked Couch, "Would it be all right if I removed those bricksbefore this happened again?" or "Could I remove those bricks beforesomebody else gets hurt on it [sic]?" Couch said yes. That evening,Dardeen returned to the site of Kuehling's house with his neighbor tosee the hole and spoke to Kuehling, her daughter, and her son in-law.Though Dardeen's wife photographed his elbow for litigationpurposes, no one photographed the hole. A few days later, Kuehlingremoved between 25 and 50 bricks from the area.

Nearly a year later on August 1, 2000, Dardeen filed a premisesliability complaint against Kuehling and the City of Mt. Carmel,alleging that their failure to repair the hole or warn others of itsexistence proximately caused his elbow injury. Dardeen voluntarilydismissed the claim against the city, but, on May 25, 2001, he filed anamended complaint, adding negligent spoliation of evidence claimsagainst both Kuehling and State Farm. Regarding State Farm,Dardeen alleged that "the hole in the brick sidewalk" was materialevidence to his premises liability claim and that State Farm had a dutyto preserve that evidence once its agent Couch heard about theaccident from Kuehling. Dardeen further alleged that State Farmbreached this duty when it authorized Kuehling to remove the raisedbricks before taking photographs of the area.

State Farm filed a motion for summary judgment on this count;the trial court granted that motion. Dardeen asked the trial court toadd Supreme Court Rule 304(a) language to its order. See 155 Ill. 2dR. 304(a). The trial court assented, and Dardeen appealed. His otherclaims against Kuehling remained pending.⁽²⁾

The appellate court reversed. 344 Ill. App. 3d 832. Initially, theappellate court reviewed the leading spoliation case from this court,Boyd v. Travelers Insurance Co., 166 Ill. 2d 188 (1995), and notedthat there is no general duty to preserve evidence, though one mayarise by agreement or other affirmative conduct. 344 Ill. App. 3d at835-36. The appellate court also discussed Shimanovsky v. GeneralMotors Corp., 181 Ill. 2d 112, 121 (1998), where we held that apotential litigant owes a duty to take reasonable measures to preserverelevant, material evidence. 344 Ill. App. 3d at 836. The appellatecourt then concluded:

"In the instant case, circumstances exist sufficient toimpose a duty on State Farm to preserve evidence. StateFarm had a contractual relationship with its insured, AliceKuehling. Kuehling called State Farm the same day theplaintiff fell on the sidewalk and asked whether or not shecould remove some bricks so no one else would get hurt.Ronald Couch, a State Farm agent, replied that it would beokay for the plaintiff to remove the bricks. Couch did notrecommend that Kuehling take pictures or videotape thesidewalk, nor did he offer to send an investigator to do soprior to the removal of the bricks.

Couch, as an agent for State Farm, was well aware thatthe sidewalk was material to any potential civil litigationresulting from the plaintiff's fall. Kuehling relied on heragent's advice before removing the bricks. Couch was notfree to allow Kuehling to destroy the sidewalk. A crucialpiece of evidence is now missing. As a result of State Farm'sactions, neither its insured, Alice Kuehling, nor the plaintiffwill be able to use this evidence in the ongoing litigation, andtheir positions have, thereby, been impaired." 344 Ill. App. 3dat 837.

The appellate court rejected State Farm's argument that it owedno duty to preserve evidence it did not possess or control. 344 Ill.App. 3d at 838. Noting that Jones v. O'Brien Tire & Battery ServiceCenter, Inc., 322 Ill. App. 3d 418 (2001), emphasized the defendant'spossession of the disputed evidence in finding a duty to preserve, theappellate court stated that Jones "does not absolutely require"possession of the evidence before a court may impose a duty topreserve it. 344 Ill. App. 3d at 838. "Here, State Farm did not havepossession of the sidewalk but, instead, exercised control or had theopportunity to exercise control." 344 Ill. App. 3d at 838.Consequently, it had a duty to preserve the sidewalk and its hole. 344Ill. App. 3d at 838.

The appellate court also concluded that a material issue of factexisted as to whether State Farm breached its duty: State Farminsisted that it did not authorize Kuehling to remove the bricks;Kuehling stated that Couch told her she could do so. 344 Ill. App. 3dat 838-39. Regarding causation, the appellate court found anothermaterial issue of fact. 344 Ill. App. 3d at 839. The appellate courtturned to Dardeen's complaint, which alleged that the hole in thesidewalk was a key piece of evidence and that the failure tophotograph or videotape the hole rendered him unable to prove hispremises liability claim: "We find that the plaintiff's allegations aresufficient to support the theory that the destruction of the bricksidewalk caused the plaintiff to be unable to prove his lawsuit againstKuehling." 344 Ill. App. 3d at 839. Though at least eight peopleviewed the hole in the sidewalk before Kuehling removed the bricks,their descriptions could differ; a photograph or videotape would havebeen conclusive. 344 Ill. App. 3d at 840.

In dissent, Justice Kuehn focused on whether State Farmpossessed the sidewalk:

"Much is made of the factual issue of whether State Farmadvised Alice Kuehling that it was okay to dismantle theapparently dangerous sidewalk. In my opinion, that perceivedissue is irrelevant. Even if we view the evidence in a lightmost favorable to *** Dardeen and assume that State Farmdid tell *** Kuehling that there was no problem indismantling the sidewalk, that would not change the issue ofliability. The sidewalk at issue was owned by either AliceKuehling or the City of Mt. Carmel. State Farm had noownership interest in the sidewalk. State Farm had nopossessory interest in the sidewalk. Contrary to the majority'sopinion, I believe that the possession of the item allegedlyspoliated is critical to a finding of negligence. At a minimum,if the alleged spoliator did not physically possess the item,then the spoliator must have had the ability to control theentity who did possess the item. At its essence, spoliationinvolves an ability to affect the outcome of the spoliateditem's existence. Those types of situations simply did notexist in this case." 344 Ill. App. 3d at 841 (Kuehn, J.,dissenting).

We granted State Farm's petition for leave to appeal. 177 Ill. 2dR. 315(a). We also granted the Illinois Association of Defense TrialCounsel leave to file a brief as amicus curiae in support of State Farm,and the Illinois Trial Lawyers Association (ITLA) leave to file a briefas amicus curiae in support of Dardeen. See 155 Ill. 2d R. 345. In thisappeal from the appellate court's reversal of the trial court's ordergranting summary judgment, our standard of review is de novo. SeeRoth v. Opiela, 211 Ill. 2d 536, 542 (2004).

ANALYSIS

Summary judgment should be granted if "there is no genuineissue as to any material fact and *** the moving party is entitled to ajudgment as a matter of law." 735 ILCS 5/2-1005(c) (West 1998);see Robidoux v. Oliphant, 201 Ill. 2d 324, 335 (2002). Thoughsummary judgment can aid in the expeditious disposition of a lawsuit,it remains a drastic measure and should be allowed only "when theright of the moving party is clear and free from doubt." Purtill v.Hess, 111 Ill. 2d 229, 240 (1986). If the plaintiff fails to establish anyelement of his claim, summary judgment is appropriate. Morris v.Margulis, 197 Ill. 2d 28, 35 (2001), citing Pyne v. Witmer, 129 Ill. 2d351, 358 (1989).

Boyd remains our watershed pronouncement on spoliation ofevidence. In Boyd, we declined to recognize spoliation of evidence asan independent tort and instead held that a spoliation claim can bestated under existing negligence principles. Boyd, 166 Ill. 2d at 192-93. In order to state a negligence claim, a plaintiff must allege that thedefendant owed him a duty, that the defendant breached that duty, andthat the defendant's breach proximately caused the plaintiff damages.Boyd, 166 Ill. 2d at 194-95. We tailored the duty element to spoliationclaims:

"The general rule is that there is no duty to preserveevidence; however, a duty to preserve evidence may arisethrough an agreement, a contract, a statute [citation] oranother special circumstance. Moreover, a defendant mayvoluntarily assume a duty by affirmative conduct. [Citation.]In any of the foregoing instances, a defendant owes a duty ofdue care to preserve evidence if a reasonable person in thedefendant's position should have foreseen that the evidencewas material to a potential civil action." (Emphasis added.)Boyd, 166 Ill. 2d at 195.

Boyd thus articulated a two-prong test for determining when athere is a duty to preserve evidence. See Andersen v. Mack Trucks,Inc., 341 Ill. App. 3d 212, 215 (2003); see also Jackson v. MichaelReese Hospital & Medical Center, 294 Ill. App. 3d 1, 10-11 (1997).As a threshold matter, we must first determine whether such a dutyarises by agreement, contract, statute, special circumstance, orvoluntary undertaking. See Boyd, 166 Ill. 2d at 195. If so, we mustthen determine whether that duty extends to the evidence at issue-i.e.,whether a reasonable person should have foreseen that the evidencewas material to a potential civil action. See Boyd, 166 Ill. 2d at 195.If the plaintiff does not satisfy both prongs, there is no duty topreserve the evidence at issue. See Andersen, 341 Ill. App. 3d at 215.Here, we need not address the second, or foreseeability, prongbecause Dardeen has not satisfied the first, or relationship, prong.

Dardeen makes the novel argument that the insurance contractbetween Kuehling and State Farm is a contract that satisfies therelationship prong. When we said, in Boyd, that a duty to preserveevidence could arise by an agreement or contract, we meant anagreement or contract between the parties to the spoliation claim. SeeAndersen, 341 Ill. App. 3d at 217. Kuehling and State Farm had aninsurance contract, to which Dardeen was not a privy. The recorddoes not contain the contract, but Dardeen does not argue that itcontained a provision under which State Farm owed Kuehling a dutyto preserve evidence from being destroyed by Kuehling herself, muchless a provision under which Dardeen would be a third-partybeneficiary of such a duty.

Dardeen's primary argument, then, echoes the appellate court'sholding that the insurance contract somehow created a specialcircumstance that satisfies the relationship prong. According toDardeen, when Kuehling reported the accident to State Farm andasked for permission to make the area safer by removing some raisedbricks, "State Farm was invested with the power or authority to guideor manage the actions of its insured. At that precise moment, StateFarm was in a position to control the sidewalk before it was lost ordestroyed."

ITLA supplements Dardeen's argument. ITLA asks this court toharmonize Boyd, where we held that, generally, there is no duty topreserve evidence, with Shimanovsky, where we held that a potentiallitigant owes a duty to potential adversaries to take reasonablemeasures to preserve the integrity of relevant, material evidence.ITLA urges us to clarify that only strangers to the controversy areabsolved of the duty to preserve evidence, while "others holding adirect stake in the outcome of the litigation owe a duty *** topreserve and/or document the existence and condition of relevant andmaterial evidence." According to ITLA, an insurer like State Farmcontrols litigation involving one of its insureds, and it can protect itsown interests by insisting that its insured cooperate. Thus, arguesITLA, a duty to preserve evidence arose when Kuehling called Couchto inform him of the accident and to ask for advice about hersidewalk.

We hinted at what special circumstances might give rise to a dutyto preserve evidence in Miller v. Gupta, 174 Ill. 2d 120 (1996). InMiller, a medical malpractice plaintiff's attorney requested X raysfrom the plaintiff's doctor. The doctor complied and obtained theX rays. Before taking the X rays to the hospital to copy them, heplaced them on the floor of his office near the wastebasket. TheX rays disappeared. A housekeeping employee who cleaned thedoctor's office guessed that she disposed of the X rays, which werelater incinerated. We remanded to allow the plaintiff to amend hernegligent spoliation claim to satisfy Boyd. Miller, 174 Ill. 2d at 129.

Unlike the plaintiff in Miller, Dardeen never contacted thedefendant to ask it to preserve evidence. Dardeen never requestedevidence from State Farm, and he never requested that State Farmpreserve the sidewalk or even document its condition. And though hevisited the accident site hours after he was injured, he did notphotograph the sidewalk. Additionally, unlike the doctor in Miller,State Farm never possessed the evidence at issue and, thus, neversegregated it for the plaintiff's benefit.

Dardeen contends that State Farm has failed to cite a single casefor the proposition that possession of the evidence is a requisite for anegligent spoliation claim. Dardeen notes that State Farm evenconcedes that possession is not required because it states in its petitionfor leave to appeal that "spoliation of evidence presupposes that thespoliator possess the evidence or be in a position to control it beforeit was lost or destroyed."

The appellate court acknowledged that State Farm did not havepossession of the sidewalk, but still insisted that State Farm somehow"exercised control or had the opportunity to exercise control" over it.However, as State Farm aptly notes, and our research indicates, noIllinois court has held that a mere opportunity to exercise control overthe evidence at issue is sufficient to meet the relationship prong. SeeAndersen, 341 Ill. App. 3d at 214 (plaintiff alleged that the defendantsecured and segregated the defective hoist mechanism parts); Jones v.O'Brien Tire & Battery Service Center, Inc., 322 Ill. App. 3d 418(2001) (plaintiff alleged that defendant possessed and discarded thedefective vehicle parts); Stinnes Corp. v. Kerr-McGee Coal Corp.,309 Ill. App. 3d 707 (1999) (plaintiff alleged that defendant gathered,tagged, and segregated the defective vehicle parts); see also Jackson,294 Ill. App. 3d at 18 (plaintiff could replead where the recordindicated the defendant possessed the requested X rays, segregatedthem after the original complaint was filed, and continued to treat theplaintiff). We do not intimate that, nor do we decide whether,possession is required in every negligent spoliation case. But, in orderto avoid summary judgment, Dardeen needed to show somethingmore than State Farm's agent answering affirmatively to Kuehling'squestion whether she could remove the raised bricks. In fact,Kuehling's call and her subsequent actions are consistent with long-standing Illinois public policy. See Herzog v. Lexington Township,167 Ill. 2d 288, 300 (1995) ("a strong public policy favorsencouraging improvements to enhance public safety"); accordSchaffner v. Chicago & North Western Transportation Co., 129 Ill.2d 1, 14 (1989). The record here indicates that State Farm had neitherpossession nor control over Kuehling's sidewalk and, therefore, owedDardeen no duty to preserve it.

Shimanovsky is inapposite. In that case, we agreed with theappellate court that a potential litigant owes a duty to take reasonablemeasures to preserve the integrity of relevant, material evidence.Shimanovsky, 181 Ill. 2d at 121. But we never mentioned Boyd, orspoliation, because the central issue in Shimanovsky was whether thetrial court could dismiss the plaintiff's complaint as a discoverysanction for the plaintiff's presuit destruction of evidence. Further,when Kuehling called Couch, she had not yet spoken with Dardeen.We decline to characterize State Farm as a potential litigant at thatpoint.

Because Dardeen failed to show State Farm owed him a duty topreserve Kuehling's sidewalk, summary judgment was appropriate.

CONCLUSION

For the reasons that we have stated, the judgment of the appellatecourt is reversed and the judgment of the circuit court is affirmed.

Appellate court judgment reversed;

circuit court judgment affirmed.

1.   On February 19, 2004, the appellate court granted State Farm