Illinois Appellate Court Allows Spoliation Claim to Proceed.

In the Illinois case of Kilburg v. Mohiuddin, the plaintiff was a passenger in a taxi that crashed into a tree, causing the plaintiff to suffer personal injuries. Three days after the incident, the plaintiff’s attorney sent a letter to the taxi cab company and driver demanding that the taxi be preserved.  Seven days after the incident, the plaintiff filed a lawsuit and served it on the defendants. Nine days after the incident, the court ordered the taxi be preserved and the order was served on the defendants.  Later, it was revealed that the cab was not preserved, so the plaintiff added a claim for spoliation of evidence.  The court dismissed that claim and the Plaintiff appealed.

As a general rule in Illinois, there is no duty to preserve evidence. However, a plaintiff can establish an exception to the general no-duty rule if it meets both prongs of a two-prong test: (1) plaintiff must show that an agreement, contract, statute, special circumstance, or voluntary undertaking has given rise to a duty to preserve evidence on the part of the defendant, and (2) a plaintiff must show that the duty extends to the 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.

The appellate court found that plaintiff’s letter demanding preservation of the taxi, her filing the complaint just a few days after the incident, and the court’s ordering the preservation of the evidence was sufficient to satisfy both the first and second prongs of the test, thus creating a duty of the defendants to preserve the taxi.  Therefore, the appellate court reversed the dismissal of plaintiff’s spoliation claim against the cab company and the driver.  To read the full appellate court opinion, click here.

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