EXECUTIVE SUMMARY: This
weekly newsletter covers:
Illinois Appellate Court Expands Spoliation Doctrine
Tenth Circuit Allows Suit to Proceed Against Fire Investigator For Civil Rights Violations
ILLINOIS APPELLATE COURT EXPANDS SPOLIATION DOCTRINE
In Jones v. O'Brien Tire and Battery Service Center, Inc., No. 96-L-560 (June 7, 2001), the Fifth District Appellate Court of Illinois reviewed dismissal of a defendant's cross-complaint against others for spoliation of evidence. The third-party plaintiff, O'Brien Tire and Battery Service Center, Inc. (O'Brien), filed an action in the Circuit Court of Madison County against the third-party defendants, Dave Macios, doing business as Sugarloaf Landscape Nursery, and Country Mutual Insurance Company (Country Mutual), seeking damages for negligent spoliation of evidence. The trial court granted Macios' motion to dismiss and granted Country Mutual's motion for judgment on the pleadings. The Appellate Court reversed and remanded the cause for further proceedings.
According to O'Brien's complaint, on September 27, 1994, Thomas Jones was killed when the left outer rear wheel of a truck owned by Macios separated from the vehicle and struck Jones's car. That same day, Tim Finley, a forensic engineer retained by Country Mutual, inspected the Macios vehicle and issued a report noting that the tire had been previously replaced by O'Brien. The report concluded that the left rear wheels were loose because the installer failed to properly tighten the lug nuts. In a letter dated October 12, 1994, Country Mutual advised Macios to preserve the wheel assembly for evidentiary purposes.
On February 28, 1995, Deborah Jones filed suit against Macios and Country Mutual. The case was settled on October 27, 1995. On August 30, 1996, Jones filed a complaint against O'Brien. During discovery, it was revealed that the wheel assembly had been taken to Patterson Tire Service by Macios and subsequently discarded. In its answer to the Jones complaint, O'Brien advanced as an affirmative defense the argument that Macios had discarded the wheel assembly before it could be examined by O'Brien and that Macios should have reasonably foreseen that the wheel assembly was material to a potential civil action arising from the incident.
In its third-party complaint, O'Brien alleged that Macios was in possession of the wheel assembly and that he knew or should have known that the wheel assembly was material to a potential civil action arising from the incident. Under Boyd, this is sufficient to allege a duty to preserve the wheel assembly.
Macios' argument that Travelers' statutory right to a lien would have made it aware of the possibility of third-party litigation is correct, but not relevant. In its analysis, the Supreme Court did not discuss the basis for Travelers' knowledge that the heater would be material to any potential civil litigation, nor did it base its holding thereon. More importantly, the Boyds' complaint did not allege that Travelers' right to a lien gave rise to its knowledge that the heater would be material to any potential civil litigation. A plaintiff in a negligence case based upon spoliation of evidence need only allege that a reasonable person in the defendant's position should have foreseen that the evidence in question was material to a potential civil action. There is no requirement that the plaintiff allege the existence of any "special relationship" which would give rise to that knowledge. Ultimately, the plaintiff must prove that the defendant should have foreseen that the evidence in question was material to a potential civil action and that the existence of a "special relationship" between the plaintiff and the defendant would help establish that foreseeability, but the existence of a "special relationship" is not necessary to give rise to a duty to preserve evidence. Macios is attempting to read into Boyd a requirement that is not there.
In the present case, O'Brien alleged that because of Macios' breach of his duty to preserve the wheel assembly, O'Brien has been prejudiced in its efforts to defend itself in the Jones action because the wheel assembly is unavailable for forensic analysis in an attempt to assess the physical evidence against the allegations of the complaint. O'Brien further alleged that because of the loss or destruction of the wheel assembly, it is precluded from developing any forensic testimony based upon an inspection of the wheel assembly to successfully defend itself from Jones's charges and it is unable to establish whether other defenses to Jones's action exist. We find these allegations sufficient to allege the element of causation.
In the present case, O'Brien alleged that it is the defendant in a wrongful death suit wherein the death is attributed to O'Brien's negligence in mounting a wheel to Macios' truck, that Macios discarded or destroyed the wheel assembly, and that as a result, O'Brien's ability to defend itself has been impaired. Following Boyd, the Appellate Court found that O'Brien had sufficiently alleged actual damages resulting from Macios' breach of his duty to preserve evidence.
Count II of O'Brien's third-party complaint was directed against Country Mutual and also alleged negligence based upon spoliation of evidence. The allegations with respect to the existence of a duty to preserve evidence are essentially the same as those directed at Macios: that Country Mutual discarded the wheel assembly; that Country Mutual should have known that the wheel assembly was material to a potential civil action arising from the incident; and that Country Mutual had a duty to either retain the evidence or instruct its insured, Macios, to do so. The allegations with respect to breach, causation, and damages are identical to those contained in count I: that as a result of the loss of the wheel assembly, O'Brien's ability to defend itself against the Jones suit has been impaired. Following the same reasoning above, the Appellate Court concluded that the trial court erred in entering judgment on the pleadings in favor of Country Mutual. For the foregoing reasons, the judgment of the circuit court of Madison County is reversed.
TENTH CIRCUIT ALLOWS SUIT TO PROCEED AGAINST FIRE INVESTIGATOR FOR CIVIL RIGHTS VIOLATIONS
In Teague v. Overton, No. 00-7070 (June 14, 2001), the Tenth Circuit Court of Appeals in an unpublished opinion (available for a fee - http://www.lexis.com/), reviewed a Civil Rights Violation lawsuit against a fire investigator. A series of three fires occurred at a Restaurant. Only the third fire required the assistance of the fire department. After the third fire was extinguished, an Oklahoma State fire marshal investigator, Overton, conducted an investigation. In a probable cause affidavit, he stated that he believed that the fires were intentionally set. He sought a warrant for the arrest of the restaurant owner and three employees, including Teague, on the theory that their identical accounts of events were "at odds with the physical evidence found at the scene."
The investigator obtained a warrant and arrested Teague. She was incarcerated for sixty-five hours before being released and the case against her dismissed. Teague then sued, for illegal arrest and false imprisonment in violation of her rights under the Fourth, Fifth, and Fourteenth Amendments.
The defendant, Overton moved for summary judgment based on a qualified immunity defense. In support of the motion, he expanded on his theory against Teague, claiming that her claimed position "would have placed her in the origin of the third fire." He also provided an affidavit from another fire investigator repeating the conclusion that Teague's statement was incompatible with the evidence and adding that three other witnesses "gave exactly the same inconsistent statement."
In response, the defendant provided an affidavit from an assistant district attorney who stated that the fire investigator made the probable cause determination and that the State's case against her consisted of only her "'location inside the building at the time the fires were set and the investigator's statement that all three fires were intentionally set." She also provided an affidavit from an individual stating that the investigator had admitted that he knew Teague "did not have anything to do with the fire" but that he believed "she knows something about it and is not talking."
In ruling on the summary judgment motion, the district court found "conflicting testimony which relates to the reasonableness of the defendant's actions in securing the arrest warrant and ultimately causing the imprisonment of plaintiff." The court therefore denied the motion for summary judgment and this interlocutory appeal followed. On appeal, the investigator again asserted that he was entitled to qualified immunity.
The first claim, of false arrest, is premised on a lack of probable cause. To comply with the Fourth Amendment, an arrest warrant must be based on "a substantial probability that a crime has been committed and that a specific individual committed the crime." The qualified immunity defense would shield the investigator from this claim (1) if his affidavit demonstrated sufficient probable cause to support an arrest or (2) if the affidavit failed to establish probable cause, but "a reasonably well-trained officer" would have been unaware of this shortcoming or that "he should not have applied for the warrant."
If an arrest warrant affidavit contains false statements, "the existence of probable cause is determined by setting aside the false information and reviewing the remaining contents of the affidavit." Where information has been omitted from an affidavit, you determine the existence of probable cause "by examining the affidavit as if the omitted information had been included and inquiring if the affidavit would still have given rise to probable cause for the warrant."
The investigator argued that the affidavit established probable cause to arrest. The affidavit sets forth the following evidence:
- the plaintiff
- her statement
was inconsistent with his analysis of where the fire started. She could
not have been standing where she said she was if the fire began where
the investigator says it did.
- the other
employees agreed with her explanation.
However, in evaluating this summary judgment motion, you examine the facts in the light most favorable to the plaintiff. According to her, the investigator lied in the probable cause affidavit by asserting the fire took place where she had been standing. You examine the affidavit without the alleged lie to see if probable cause remains. Without his assessment of where the fire took place, there is no reason to believe that she lied to the police or that she and the other employees engaged in any type of conspiracy. At that point, the affidavit only shows that she was present when the arson took place. This is insufficient to create probable cause.
Despite the inadequacy of his affidavit, Overton may still be entitled to qualified immunity for requesting an arrest warrant unless he should have known, under a standard of "objective reasonableness," that "his affidavit failed to establish probable cause and that he should not have applied for the warrant." The district court denied summary judgment on this issue solely on the ground that his evidence created factual disputes as to the reasonableness of Overton's actions in securing the warrant. "Because further review would necessitate an assessment of the district court's evidentiary conclusions, we must dismiss" Overton's appeal of this aspect of the district court's decision for lack of jurisdiction.
A similar jurisdictional analysis applies to the district court's disposition of Teague's false imprisonment claim. The court found "disputes of material facts as to this issue, thus prohibiting" entry of summary judgment on the claim.
For the reasons stated above, the district court's ruling on summary judgment was upheld to the extent it is based on lack of probable cause contained in the affidavit executed by Overton. Because the record reveals genuine issues of material fact concerning the objective reasonableness of Overton's actions, the remainder of the appeal was dismissed.
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