Three of the scariest words in civil law are “spoliation of evidence.”  Just the threat of a spoliation claim makes claims examiners and lawyers sweat.  It’s the first legal concept every claim handler should learn, and stay updated on, as they change jurisdictions.

I want to briefly talk about spoliation law in Illinois and then discuss how to prevent such claims from being successful against your company or insured.

Illinois Spoliation Law 

The basis for spoliation law in Illinois is the Illinois Supreme Court case Boyd v. Travelers Ins. Co., 652 N.E.2d 267 (1995).  The primary aspects of spoliation law that should be remembered are as follows:

• An action for negligent spoliation can be stated under existing negligence law without creating a new tort.
• Under Illinois law, spoliation of evidence is a form of negligence; proof of spoliation requires a showing that the defendant owed the plaintiff a duty to preserve evidence, breached that duty, and thereby proximately caused the plaintiff to be unable to prove the underlying cause of action.
• The general rule is that there is no duty to preserve evidence; however, a duty to preserve evidence may arise through an agreement, a contract, a statute or another special circumstance. Determining if a duty was created is the first step of the analysis.
  • Since Boyd, the trend has been more towards merging the relationship prong of Boyd into a foreseeability analysis.
  • Under this approach, a defendant owes a duty of due care to preserve evidence if a reasonable person in the defendant’s position should have foreseen that the evidence was material to a potential civil action. See, Andersen v. Mack Trucks, Inc., 793 N.E.2d 962 (2nd Dist. 2003); Stinnes Corp. v. Kerr-McGee Coal Corp., 722 N.E.2d 1167 (1999).
• The second step of the analysis is to determine if the duty extends to the evidence at issue. A defendant owes a duty of due care to preserve evidence if a reasonable person in the defendant’s position should have foreseen that the evidence was material to a potential civil action.
• In a negligence action involving the loss or destruction of evidence, a plaintiff must allege sufficient facts to support a claim that the loss or destruction of the evidence caused the plaintiff to be unable to prove an underlying lawsuit. 

How To Prevent A Spoliation Claim

The following tips may help prevent spoliation claims from being filed against your company and insures:

Surveillance Footage – If the area or property where the incident took place has any form of video surveillance, be sure the surveillance footage for the time of the incident and some period of time before and after the incident is preserved. Even if the incident is not caught on video, preserving the footage proves it was not caught. Once you have the disc or tape, don’t lose it.

Incident/Accident Reports – If an incident is reported, have some form of report that can be completed by either the manager and/or the claimant. The report should be simple and easy to understand by everyone. Get the claimant’s contact information and describe where, when and how the incident took place. Document any witnesses to the incident (including contact information) and get a witness statement if possible. Once a report exists, have a specific place where the report is maintained and have a copy of it sent (mail, e-mail or fax) to the corporate office. The original report should be kept for a period of time longer than the statute of limitations for personal injury claims in that state.

Photographs – It is always good to have photographs of an alleged defect. If photographs are taken – DO NOT LOSE THEM! If possible, take digital photographs so they can be emailed to the corporate office and maintained on-site on a computer. If the photographs are printed, have one place they are stored and maintained.

Large Equipment – When large equipment (like an elevator, escalator, oven, refrigeration case, professional coffee brewer) is involved in an incident, unique problems arise. Usually, the property owner needs the equipment fixed as quickly as possible so the business can function properly. It is usually not feasible to place large equipment out of order to protect it as evidence. In these situations, either get counsel involved right away or have a very structured plan in place to protect your company. The claimant should be advised of when the repair is going to take place and invite the claimant to send representation (counsel and/or expert) to attend. If the potential claim is significant (i.e. multiple parties injured), it may be prudent to get a court involved so the judge can order how preservation and /or repairs will take place.

Food Causing Illness – With food borne illness claims, testing the food is generally the only way a claimant can prove the food was the cause of the illness. This places the burden of preserving the food mainly on the claimant, so the specific food eaten can be tested. In some cases, the food may still be at the restaurant, store or hotel and in that case, the food should be immediately packaged and frozen.

In sum, don’t risk a spoliation of evidence claim.  If you know of potential evidence, preserve it.  If you preserve it, don’t lose it.  Having a clear and concise procedure in place for evidence will save you many headaches in the future.

photo credit: <a href=”https://www.flickr.com/photos/generated/3408879691/”>jared</a> via <a href=”http://photopin.com”>photopin</a> <a href=”http://creativecommons.org/licenses/by/2.0/”>cc</a> 

photo credit: <a href=”https://www.flickr.com/photos/tylerbeaulawrence/6855057492/”>Beaulawrence</a> via <a href=”http://photopin.com”>photopin</a> <a href=”http://creativecommons.org/licenses/by-nc-sa/2.0/”>cc</a>