JUSTICE GROMETER
delivered the opinion of the court:
Plaintiff, James Andersen, filed a wrongful death, product liability, negligence, and survival action in connection with the death of his father, Daniel Andersen (Daniel), who was killed in a work-related accident. The complaint named Galbreath, Inc. (Galbreath), and Mack Trucks, Inc. (Mack), as defendants. This appeal arises from the dismissal, with prejudice, pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)), of Galbreath’s second-amended third-party complaint for negligent spoliation of evidence against Daniel’s employer, BFI Waste Systems of North America, Inc. (BFI). We affirm the portion of the order dismissing Galbreath’s complaint. We reverse insofar as the dismissal is with prejudice and remand for further proceedings.
The original complaint alleged that Daniel was killed on February 14, 2000, when a hydraulic hose in the hoist mechanism of the truck he was operating for BFI ruptured, causing the mechanism to fail and the load to lower onto him. Mack manufactured the truck involved, and Galbreath manufactured the hoist mechanism. Galbreath filed a third-party complaint against BFI for contribution, on the basis that BFI had been negligent in its repair and maintenance of the equipment and in the training of its employees.
The court dismissed Galbreath’s contribution complaint in accordance with the rule in Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155 (1991), when BFI agreed to release its workers’ compensation lien. Galbreath then filed its first-amended complaint, which alleged that BFI’s negligent loss of the truck and related equipment had impaired its ability to defend itself in the underlying suit. The court dismissed this complaint and Galbreath filed its second-amended complaint, which alleged essentially as follows.
The Waukegan police, the Occupational Safety and Health Administration (OSHA), and an engineering consulting firm, Triodyne Engineering, each investigated the accident that killed Daniel.
Three days after the accident, on February 17, 2000, BFI’s Waukegan district manager wrote to Galbreath informing it of the fatality and requesting that a service representative inspect the equipment. The letter also informed Galbreath that BFI intended to place the equipment back in service on March 1, 2000.
On February 21, 2000, Galbreath’s engineering manager made a “brief visual inspection” of the equipment at BFI’s Waukegan facility. BFI had secured the truck and segregated it from other BFI trucks and equipment.
Sometime “shortly after” the inspection, Galbreath sent the Waukegan district manager a letter requesting that he turn over evidence relating to Daniel’s death, including the ruptured hose. Gal-breath asked that the hose be preserved if it could not be turned over. We note that the letter is undated, and the date on which it was sent cannot be determined from the record.
On April 1, 2000, BFI sold the equipment to Onyx Waste Services, Inc. (Onyx). (Although it is not specifically alleged by Galbreath, we note that the record reflects that the equipment was sold as part of the sale of BFI’s entire Waukegan operation to Onyx.)
BFI did not inform Galbreath of the sale of the equipment at the time the third-party complaint was filed and did not comply with discovery demands for the equipment. BFI first informed Galbreath of the sale of the equipment in a letter dated May 2, 2001.
Galbreath ultimately succeeded in locating the truck at the Onyx facilities, but the hoist and the hose were not recovered.
OSHA’s report on the accident suggests that BFI had modified the truck, hoist, and hose.
Finally, Galbreath alleged that, had the equipment been preserved, it would have established the “lack of defect attributable to Galbreath and/or the merit of one or more affirmative defenses based upon third-party modification or other intervening causes. *** Absent that evidence, Galbreath may not be able to prove these defenses, and its ability to defend itself in the [underlying [ljitigation has been impaired.”
BFI moved to dismiss this complaint under section 2 — 615 of the Code of Civil Procedure (735 ILCS 5/2 — 615 (West 2000)). This motion was granted with prejudice. The order stated that the complaint had failed to allege a duty owed by BFI to Galbreath, the breach of such a duty, and the breach’s proximate cause of damages to Galbreath. The trial court found no just reason to delay appeal of the dismissal order, and this appeal followed.
A motion to dismiss a complaint under section 2 — 615 should be granted only when the allegations in the complaint, construed in the light most favorable to the plaintiff, fail to state a cause of action upon which relief can be granted. Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 147 (2002). All well-pleaded facts and inferences drawn from those facts are accepted as true. Oliveira, 201 Ill. 2d at 147. We review a dismissal under section 2 — 615 de novo. Oliveira, 201 Ill. 2d at 147-48.
The Illinois Supreme Court set forth the elements needed for a spoliation of evidence claim in Boyd v. Travelers Insurance Co., 166 Ill. 2d 188 (1995). Spoliation of evidence is not an independent basis for a tort claim, but relief is available if a claim can be stated under ordinary negligence law. Boyd, 166 Ill. 2d at 193. Thus, the plaintiff in a spoliation of evidence case must plead the existence of a duty, a breach of the duty, an injury proximately caused by the breach, and damages. Boyd, 166 Ill. 2d at 194-95.
No general duty to preserve evidence exists, but a duty can arise out of an agreement or contract, a statutory requirement, or another special circumstance, such as the assumption of the duty by affirmative conduct. If one of these pertains, then 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.” Boyd, 166 Ill. 2d at 195.
In Boyd, the plaintiff alleged that he was at work in his employer’s van when a propane heater exploded, seriously injuring him. The heater was the plaintiff’s personal property. The defendant, the plaintiff’s employer’s insurer, took possession of the heater, saying that it was needed to investigate the plaintiffs workers’ compensation claim. However, the heater was lost before any testing was completed. The defendant’s employees were aware of the relevance of the heater to future litigation. By taking control of the heater under the circumstances described, the defendant assumed a duty to preserve it. Boyd, 166 Ill. 2d at 195.
Boyd articulates a two-prong test for the existence of a duty to preserve evidence: (1) an agreement, contract, statutory requirement, or other special circumstance such as the assumption of the duty by affirmative conduct (the relationship prong), and (2) that a reasonable person in the defendant’s position should have foreseen that the evidence was material to a potential civil action (the foreseeability prong). Boyd, 166 Ill. 2d at 195. Unless both prongs are satisfied, there is no duty to preserve evidence. Boyd, 166 Ill. 2d at 195.
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JUSTICE GROMETER
delivered the opinion of the court:
Plaintiff, James Andersen, filed a wrongful death, product liability, negligence, and survival action in connection with the death of his father, Daniel Andersen (Daniel), who was killed in a work-related accident. The complaint named Galbreath, Inc. (Galbreath), and Mack Trucks, Inc. (Mack), as defendants. This appeal arises from the dismissal, with prejudice, pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)), of Galbreath’s second-amended third-party complaint for negligent spoliation of evidence against Daniel’s employer, BFI Waste Systems of North America, Inc. (BFI). We affirm the portion of the order dismissing Galbreath’s complaint. We reverse insofar as the dismissal is with prejudice and remand for further proceedings.
The original complaint alleged that Daniel was killed on February 14, 2000, when a hydraulic hose in the hoist mechanism of the truck he was operating for BFI ruptured, causing the mechanism to fail and the load to lower onto him. Mack manufactured the truck involved, and Galbreath manufactured the hoist mechanism. Galbreath filed a third-party complaint against BFI for contribution, on the basis that BFI had been negligent in its repair and maintenance of the equipment and in the training of its employees.
The court dismissed Galbreath’s contribution complaint in accordance with the rule in Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155 (1991), when BFI agreed to release its workers’ compensation lien. Galbreath then filed its first-amended complaint, which alleged that BFI’s negligent loss of the truck and related equipment had impaired its ability to defend itself in the underlying suit. The court dismissed this complaint and Galbreath filed its second-amended complaint, which alleged essentially as follows.
The Waukegan police, the Occupational Safety and Health Administration (OSHA), and an engineering consulting firm, Triodyne Engineering, each investigated the accident that killed Daniel.
Three days after the accident, on February 17, 2000, BFI’s Waukegan district manager wrote to Galbreath informing it of the fatality and requesting that a service representative inspect the equipment. The letter also informed Galbreath that BFI intended to place the equipment back in service on March 1, 2000.
On February 21, 2000, Galbreath’s engineering manager made a “brief visual inspection” of the equipment at BFI’s Waukegan facility. BFI had secured the truck and segregated it from other BFI trucks and equipment.
Sometime “shortly after” the inspection, Galbreath sent the Waukegan district manager a letter requesting that he turn over evidence relating to Daniel’s death, including the ruptured hose. Gal-breath asked that the hose be preserved if it could not be turned over. We note that the letter is undated, and the date on which it was sent cannot be determined from the record.
On April 1, 2000, BFI sold the equipment to Onyx Waste Services, Inc. (Onyx). (Although it is not specifically alleged by Galbreath, we note that the record reflects that the equipment was sold as part of the sale of BFI’s entire Waukegan operation to Onyx.)
BFI did not inform Galbreath of the sale of the equipment at the time the third-party complaint was filed and did not comply with discovery demands for the equipment. BFI first informed Galbreath of the sale of the equipment in a letter dated May 2, 2001.
Galbreath ultimately succeeded in locating the truck at the Onyx facilities, but the hoist and the hose were not recovered.
OSHA’s report on the accident suggests that BFI had modified the truck, hoist, and hose.
Finally, Galbreath alleged that, had the equipment been preserved, it would have established the “lack of defect attributable to Galbreath and/or the merit of one or more affirmative defenses based upon third-party modification or other intervening causes. *** Absent that evidence, Galbreath may not be able to prove these defenses, and its ability to defend itself in the [underlying [ljitigation has been impaired.”
BFI moved to dismiss this complaint under section 2 — 615 of the Code of Civil Procedure (735 ILCS 5/2 — 615 (West 2000)). This motion was granted with prejudice. The order stated that the complaint had failed to allege a duty owed by BFI to Galbreath, the breach of such a duty, and the breach’s proximate cause of damages to Galbreath. The trial court found no just reason to delay appeal of the dismissal order, and this appeal followed.
A motion to dismiss a complaint under section 2 — 615 should be granted only when the allegations in the complaint, construed in the light most favorable to the plaintiff, fail to state a cause of action upon which relief can be granted. Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 147 (2002). All well-pleaded facts and inferences drawn from those facts are accepted as true. Oliveira, 201 Ill. 2d at 147. We review a dismissal under section 2 — 615 de novo. Oliveira, 201 Ill. 2d at 147-48.
The Illinois Supreme Court set forth the elements needed for a spoliation of evidence claim in Boyd v. Travelers Insurance Co., 166 Ill. 2d 188 (1995). Spoliation of evidence is not an independent basis for a tort claim, but relief is available if a claim can be stated under ordinary negligence law. Boyd, 166 Ill. 2d at 193. Thus, the plaintiff in a spoliation of evidence case must plead the existence of a duty, a breach of the duty, an injury proximately caused by the breach, and damages. Boyd, 166 Ill. 2d at 194-95.
No general duty to preserve evidence exists, but a duty can arise out of an agreement or contract, a statutory requirement, or another special circumstance, such as the assumption of the duty by affirmative conduct. If one of these pertains, then 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.” Boyd, 166 Ill. 2d at 195.
In Boyd, the plaintiff alleged that he was at work in his employer’s van when a propane heater exploded, seriously injuring him. The heater was the plaintiff’s personal property. The defendant, the plaintiff’s employer’s insurer, took possession of the heater, saying that it was needed to investigate the plaintiffs workers’ compensation claim. However, the heater was lost before any testing was completed. The defendant’s employees were aware of the relevance of the heater to future litigation. By taking control of the heater under the circumstances described, the defendant assumed a duty to preserve it. Boyd, 166 Ill. 2d at 195.
Boyd articulates a two-prong test for the existence of a duty to preserve evidence: (1) an agreement, contract, statutory requirement, or other special circumstance such as the assumption of the duty by affirmative conduct (the relationship prong), and (2) that a reasonable person in the defendant’s position should have foreseen that the evidence was material to a potential civil action (the foreseeability prong). Boyd, 166 Ill. 2d at 195. Unless both prongs are satisfied, there is no duty to preserve evidence. Boyd, 166 Ill. 2d at 195.
The Illinois Supreme Court offered some insight into the circumstances that give rise to a duty to preserve evidence in Miller v. Gupta, 174 Ill. 2d 120 (1996). In Miller, the court allowed the plaintiff to amend the spoliation count of her complaint where the record suggested that the evidence sought had been destroyed after the plaintiffs attorney had requested it from the defendant and while it was segregated, as a result of the request, from other similar material. Miller, 174 Ill. 2d at 123-24. Miller did not hold that these facts, if properly pleaded, would give rise to a duty to preserve the evidence; it did consider these facts significant in its decision to remand and allow the plaintiff to replead her spoliation complaint. Thus, Miller gives an additional indication of the sort of special circumstances that give rise to a duty to preserve evidence.
Two Fifth District cases, cited by Galbreath in support of its complaint, seem to eliminate the relationship prong from Boyd. In Jones v. O’Brien Tire & Battery Service Center, Inc., 322 Ill. App. 3d 418 (2001), the court stated that 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. *** [T]he existence of a ‘special relationship’ *** would help to establish *** foreseeability ***.” Jones, 322 Ill. App. 3d at 422-23.
In Jones, a tire separated from a landscaper’s truck and killed the plaintiffs decedent. The plaintiff settled the resulting claim with the landscaper and then sued the service center, which was alleged to have negligently attached the tire. Jones, 322 Ill. App. 3d at 419. The service center filed a third-party complaint against the landscaper, alleging that he had negligently disposed of the tire assembly, thus impairing the tire center’s ability to defend itself. Jones, 322 Ill. App. 3d at 420. The landscaper’s insurer had requested that he preserve the tire assembly, but there was no allegation that the service center made such a request. Jones, 322 Ill. App. 3d at 419. The court held that foreseeability of the need for the tire assembly as evidence, coupled with ownership and possession of it after the accident, was a sufficient special circumstance to establish the landscaper’s duty to preserve the tire assembly for any potential party’s benefit. See Jones, 322 Ill. App. 3d at 422-23. This analysis merges the relationship prong of Boyd into the foreseeability prong and, contrary to Boyd, creates a general duty to preserve evidence.
In Stinnes Corp. v. Kerr-McGee Coal Corp., 309 Ill. App. 3d 707 (1999), the court took a similar approach. The court quoted Boyd as saying “ ‘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.’ ” Stinnes Corp., 309 Ill. App. 3d at 715, quoting Boyd, 166 Ill. 2d at 195. However, the full sentence in Boyd was “In any of the foregoing instances, 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.” (Emphasis added.) Boyd, 166 Ill. 2d at 195. The “foregoing instances” referred to were the existence of a contract or any of the other circumstances satisfying the relationship prong. Boyd, 166 Ill. 2d at 195. Again, the Fifth District eliminates the relationship prong from Boyd.
The analysis in Jackson v. Michael Reese Hospital & Medical Center, 294 Ill. App. 3d 1 (1997), of a spoliation claim for loss of X rays allegedly needed to prove a malpractice claim stands in contrast to the reasoning in Jones and Stinnes Corp. In Jackson, the spoliation count of the complaint had been dismissed for failure to state a claim upon which relief could be granted. Jackson, 294 Ill. App. 3d at 5. The court recited both prongs of the duty standard in Boyd (Jackson, 294 Ill. App. 3d at 10-11) and then explained why the complaint was factually insufficient to satisfy the relationship prong (Jackson, 294 Ill. App. 3d at 11-13). In Jackson, the plaintiffs alleged that the hospital had voluntarily assumed a duty to preserve the X rays, but failed to specify what conduct by the hospital indicated such an undertaking. Jackson, 294 Ill. App. 3d at 11. Although the complaint was inadequate, the court permitted the plaintiffs to amend it. The record suggested that the hospital had segregated the evidence into a special litigation file — a circumstance that might establish the voluntary assumption of a duty to preserve the evidence. See Jackson, 294 Ill. App. 3d at 11-12. Had this set of facts been adequately pleaded, the court suggested, Boyd’s foreseeability prong would have been satisfied as well. See Jackson, 294 Ill. App. 3d at 10-11. Jackson is thus an appropriate application of the full standard in Boyd, but Jones and Stinnes Corp. are not.
In this case, Galbreath does not allege any contract or agreement between BFI and itself, nor does it allege that BFI had any statutory or regulatory duty to preserve the evidence. Since BFI had informed Galbreath that the truck was to be put back into service approximately two weeks after the accident, Galbreath cannot plead that BFI voluntarily undertook to preserve the evidence specifically regarding the truck. Galbreath suggests that its undated letter sent “shortly after” its inspection of the truck, requesting that BFI turn over or preserve the hose and related evidence, constitutes a special circumstance imposing a duty to preserve evidence. We decline to hold that a mere request that a party preserve evidence is sufficient to impose a duty absent some further special relationship. We will not speculate as to what other facts Galbreath could plead to establish the existence of a duty.
The plaintiff in a spoliation of evidence case must also plead breach of the duty to preserve evidence. In the usual case, where the plaintiff has had no opportunity to inspect the evidence in contemplation of litigation, establishing the inadequate protection of the evidence would be sufficient to plead the breach of the duty. See, e.g., Jackson, 294 Ill. App. 3d at 13. Here, Galbreath had the opportunity to, and did in fact, inspect the equipment before it was lost. Arguably, the duty could have terminated with the inspection. The scope of the duty to preserve evidence has not been at issue in other Illinois spoliation cases, but, by natural extension of the reasoning in Boyd, we conclude that the duty remains as long as the defendant should reasonably foresee that further evidence material to a potential civil action could be derived from the physical evidence in the defendant’s possession, e.g., testing, microscopic examination, chemical analysis, etc. See Boyd, 166 Ill. 2d at 193. Galbreath has not pleaded any facts that would indicate that BFI should have known, prior to selling the equipment, that further inspection or testing of the equipment would provide additional information material to a potential civil action. Absent this, we cannot say that any duty BFI may have owed Galbreath was not satisfied by allowing the inspection of the equipment; thus, Galbreath has not successfully pleaded that BFI breached its duty.
Further, Galbreath’s complaint does not sufficiently allege an injury proximately caused by the alleged breach of duty. The Boyd court stated that to plead proximate cause “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.” (Emphasis in original.) Boyd, 166 Ill. 2d at 196. Galbreath here alleges that the loss of the evidence caused it to be unable to prove an affirmative defense based on third-party modification of the equipment or another intervening cause.
BFI has argued that Galbreath has other defenses not dependent on the lost evidence. Obviously, this is not relevant to a dismissal under section 2 — 615 unless taken as a contention that Galbreath must allege that the defense it claims it has lost is the only possible defense. To remain consistent with Boyd, clearly the plaintiff must allege that the destruction of evidence has caused the plaintiff to be unable to defend the underlying lawsuit. Thus, Galbreath must allege specific facts that if proven would show that, due to the loss of evidence, it will lose the underlying case, and not that one specific defense will become unavailable to it.
Galbreath’s allegation of proximate cause is conclusory; it fails to allege a nexus between the loss of the evidence and the loss of its chosen defense, and therefore it would be inadequate even without regard to extra pleading requirements created by the circumstances of this case. The Jackson court required the plaintiffs to plead how the loss of X rays specifically prevented them from obtaining a certificate of merit for their malpractice claim. Jackson, 294 Ill. App. 3d at 15. Similarly, in Thornton v. Shah, 333 Ill. App. 3d 1011, 1020-21 (2002), the court required a specific explanation of how phone records missing from the plaintiffs decedent’s medical records prevented the plaintiff from proving the defendant’s medical negligence. Galbreath fails to plead specifically what it could have done with the equipment that it cannot do now, or what it could have done in addition to its original inspection, and why this is critical to its defense. Further, Galbreath has not alleged facts that would show why it can reasonably rely only on the defense it alleges it has lost.
Galbreath faces an additional barrier. It specifically alleges that the OSHA report indicated possible postmanufacture alterations to the equipment. While this is helpful to Galbreath in that it suggests why postmanufacture alteration might be its best defense, it puts Gal-breath in the position of having to plead what evidence it could have obtained from the equipment that it could not obtain from the report. Such allegations are absent.
The circuit court dismissed Galbreath’s complaint with prejudice. A complaint should be dismissed with prejudice under section 2 — 615 only if it is clearly apparent that no set of facts can be proven that will entitle the plaintiff to recover. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 488 (1994). The decision to deny leave to amend is within the sound discretion of the trial court. Cantrell v. Wendling, 249 Ill. App. 3d 1093, 1095 (1993); see also Clemons v. Mechanical Devices Co., 202 Ill. 2d 344, 351 (2002). However, the trial court should exercise its discretion liberally in favor of allowing amendments if doing so will further the ends of justice, and any doubts should be resolved in favor of allowing amendments. Cantrell, 249 Ill. App. 3d at 1095. We hold that the dismissal with prejudice was an abuse of discretion, given the unsettled nature of the law in this area.
Admittedly, this is a close case. The complaint dismissed was Gal-breath’s second spoliation of evidence complaint, and it appears to be little closer to successfully pleading a duty than the first. The primary difference in this respect between the two complaints is that the first alleged that the undated letter was sent “shortly after the accident,” whereas the second states that it was sent “shortly after” Galbreath’s visual inspection of the truck and attached hose and hoist. The second complaint is thus stronger than the first only in that it suggests that the undated letter was likely responsive to BFI’s letter stating that the truck was to be returned to service. On the other hand, as discussed above, the various districts of the appellate court have not been consistent in their interpretation of Boyd. Galbreath’s reliance on Jones and Stinnes Corp. was reasonable. Further, Boyd and Miller provide only limited guidance as to what constitutes a special circumstance leading to a duty. In light of our analysis and given the state of the law, we believe Galbreath should be allowed to replead.
Accordingly, we affirm that portion of the trial court’s order dismissing Galbreath’s second-amended complaint under section 2 — 615, we reverse insofar as the dismissal is with prejudice, and we remand the cause to the trial court to allow Galbreath to replead and for further action consistent with this opinion.
Affirmed in part and reversed in part; cause remanded with directions.
McLAREN, J., concurs.