Where employees were injured when a concrete I-Beam feel from a bridge, their employer destroyed the beam the following day. The Illinois Supreme Court found there was no evidence to support the existence of a duty to preserve the I-beam because (1) there was no agreement, contract, or statute that required the preservation of the I-beam as evidence, and (2) merely by doing its own investigation of the accident, including photographing the site and the I-beam after it fell, did not constitute voluntarily undertaking to preserve the I-beam for the contractor’s own purposes, and (3) the employer-employee relationship in itself did not constitute a special circumstance that would impose a duty on an employer to preserve potential evidence. Martin v. Keeley & Sons, 979 N.E. 2d 22 (Illinois 2012).
Several employees of a contractor suffered injuries when a concrete I-beam, that they were standing on while installing a handrail on a bridge, collapsed, and they fell into the creek below. The Illinois DOT and the U.S. OSHA did an immediate, same day inspection of the accident site. The following day, the contractor destroyed the I-beam by breaking it up with a hydraulic hammer. Sometime later, the laborers filed suit against the manufacturer of the I-Beam, and against the designer of the bearing assembly that supported the I-beam that was incorporated into the bridge deck. They also sued their employer, the contractor, based on negligent spoliation of evidence. The other defendants made cross-claims against the contractor based on spoliation of evidence.
OSHA’s investigation concluded that the beam had rolled over, causing it to fall. After the OHSA inspection, the beam was broken up with a hydraulic hammer and left where it had fallen – being turned to riprap in the creek. The rebar was hauled to an auto shredder. The embedded steel plates on the ends of the beam were saved and sent to the manufacturer to be used in the manufacturing of a replacement beam.
In explaining why he had destroyed the beam, the contractor testified he had been informed by the manufacturer that (1) the replacement beams could be manufactured more quickly if they retrieved the embedded steel plates and sent them to the manufacturer as soon as possible for use in the new beam, and (2) the Illinois DOT construction engineer advised that the beam needed to removed from the creek to prevent a condition called “scouring” – erosion caused by water washing up around the bridge abutment.
As far as the potential for litigation, the contractor testified that, although he knew the workers had been sent to the hospital, he assumed there would be workers’ compensation claims but that a lawsuit “really didn’t enter my mind at the time.” He stated he did not receive any requests to preserve the beam from the plaintiffs, the manufacturer or the engineer. The engineer, however, testified by affidavit of its vice president, that no personnel from the engineer were present at the construction site during the accident and that the contractor never contacted the engineer to inquire whether a representative wished to inspect the site. He further testified that the engineer was not aware of the accident until well after the I-beam had been destroyed.
At issue in the claims against the contractor by the plaintiff, the manufacturer and the engineer, for spoliation of evidence, was whether the contractor was entitled to summary judgment. The Supreme Court held he was. In reaching that conclusion, the court reviewed numerous court decisions addressing evidence and the duty to preserve it. The court stated that under Illinois law, spoliation is a form of negligence and that a plaintiff claiming spoliation must prove that (1) the defendant owed the plaintiff a duty to preserve the evidence; (2) the defendant breached the duty; (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.
The general rule in Illinois, said the court, is that there is no duty to preserve evidence. A plaintiff, in order to establish an exception to the no-duty rule, must meet a two-prong test. The first test is that the plaintiff must show that an agreement, contract, statute, special circumstance, or voluntary undertaking has given rise to a duty to preserve the evidence. Under the second test, the plaintiff must show that the duty extends to specific evidence at issue by demonstrating that “a reasonable person in the defendant’s position should have foreseen that the evidence was material to a potential civil action.”
In this case, the court found the evidence did not support a finding that the contractor owed a duty to preserve the I-beam, and that a summary judgment was appropriately granted for the contractor.
About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners. He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects. He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk.com Report, Vol. 15, No. 3 (Mar 2013).
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