FIFTH DIVISION August 27, 2010
1-08-3474
ESTHER BROBBEY, a Minor, By Her Father ) and Next Friend, John Brobbey, ANNA ) BROBBEY, a Minor, By Her Father and Next ) Friend, John Brobbey, ENOCH BROBBEY, ) By His Father and Next Friend, John Brobbey, ) GBOYEGA ADERELE, a Minor, By Her Father ) and Next Friend, Adedotun Aderele, ADEDOYIN ) ADERELE, a Minor, By Her Father and Next ) Friend, Adedotun Aderele, GLADYS ) SHABANGY, KODZOVI NIPASSA, JOHN ) BROBBEY, ADEDOTUN ADERELE, ) Appeal from the and KEJI ADERELE, ) Circuit Court of ) Cook County, Plaintiffs-Appellants, ) ) 05 L 004282 v. ) ) The Honorable ENTERPRISE LEASING COMPANY OF ) James D. Egan, CHICAGO, ) Judge Presiding. ) Defendant-Appellee, ) ) General Motors Corporation, and its Chevrolet ) Division, City Chevrolet, Buick and Geo, Inc., ) ) Defendants. )
PRESIDING JUSTICE TOOMIN delivered the opinion of the court:
In this appeal, we determine whether a defendant, in response to claim of spoliation, may
disclaim the duty to preserve evidence by simply providing notice to plaintiffs of its availability
for inspection prior to disposal. Plaintiffs initially brought the action below premised upon
claims of strict liability and negligence for injuries sustained in the operation of a van they rented
from defendant, Enterprise Leasing Company of Chicago. The accident allegedly was caused by 1-08-3474
the van’s failure to operate in a normal manner due to a manufacturing defect. Plaintiffs later
added a spoliation of evidence claim based on the destruction of the van by Enterprise. The
circuit court granted summary judgment in favor of Enterprise on the strict liability and
negligence claims and dismissed the spoliation claims. For the following reasons, we affirm in
part, reverse in part, and remand.
BACKGROUND
On April 18, 2003, John Brobbey rented a 2003 Chevrolet Astro van from Enterprise
Leasing (Enterprise) for a church retreat to Minnesota. The van was manufactured by General
Motors Corporation (GM) and was sold to Enterprise by City Chevrolet, Buick & Geo, Inc. (City
Chevrolet).1
At the time Brobbey rented the van, in moving the vehicle on Enterprise’s premises, he
noticed that the van wobbled and jerked whenever he applied the brakes. He immediately spoke
with the Enterprise rental agent and expressed his concerns. However, after the agent assured
Brobbey that there was nothing wrong with the vehicle, Brobbey drove the van from Enterprise
to his home. En route, he experienced the same problems and the van wobbled and jerked
whenever he applied the brakes. Because the Enterprise agent had assured him the van was fine,
he thought his perceived problems resulted simply from his lack of experience in driving the van.
Brobbey asked plaintiff Adedotun Aderele to drive the van to Minnesota for the Easter
1 Defendants GM and City Chevrolet settled with plaintiffs and no longer remain in the
litigation.
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retreat, which took place from April 18, 2003, to April 20, 2003. While en route to their
destination on the I-94 expressway, Aderele noticed wobbling or shaking of the steering wheel at
speeds between 40 and 50 miles per hour. As Aderele believed that the air pressure in one of the
front tires might be the problem, he left the highway and inspected the tires at the next gas
station. Noting that the tire pressure seemed normal, Aderele continued driving.
At the end of the retreat, on April 20, 2003, Aderele began the drive back to Chicago.
After driving for a couple of hours, he noticed that his hands continually drifted from left to right.
However, because Aderele was feeling tired and sleepy , he believed his drowsiness was the
cause. In turn, Gladys Shabangu, John Brobbey’s wife, offered to take over driving while
Aderele rested.
At about 4 p.m., Shabangu noticed that whenever she reduced speed by applying the
brakes, the van wobbled and the steering wheel shook. After about one hour of driving the van,
she told everyone who was awake that she would exit to give the van back to Aderele. As
Shabangu exited the highway, she was traveling at a speed of 75 miles per hour. She applied her
foot on the brake pedal, but the van failed to brake. When she attempted to depress the brake
pedal again, the vehicle began rolling over and she took her foot off the brake and just held onto
the steering wheel. Shabangu lost control and the van rolled over several times until it stopped.
Several of the passengers were forcefully ejected, and many sustained serious and permanent
injuries as a result.
Brobbey and Shabangu notified Enterprise of the incident and alleged mechanical defect
or brake malfunction. On May 1, 2003, Elco Administrative Services (Elco), the company
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handling claims for Enterprise, sent a letter to Brobbey and Shabangu stating:
“Due to the allegation you both made that the above vehicle had a brake
malfunction, we’ve filed a claim with the manufacturer. We will contact you both and
State Farm once we receive the manufacturer’s position.”
Enterprise also conducted its own investigation and concluded there was no malfunction
with the brake system. On September 23, 2003, Enterprise sent a certified letter to Brobbey and
Shabangu and informed them that, having found no defect or malfunction, Enterprise would be
releasing the van on September 30, 2003, unless the recipients responded. However, because of
serious permanent injuries sustained by family members, plaintiffs were unable to respond to
Enterprise’s letter. Enterprise released the van on October 17, 2003. In turn, the van was sold at
auction to Lombard Auto Wreckers and was thereafter destroyed on January 10, 2004.
Subsequently, in June or July 2004, Aderele asked Shabangu to find out where the van was, since
he was interested in learning what caused the accident, but was informed that it had been
scrapped.
On April 18, 2004, plaintiffs Brobbey and Shabangu, as guardians of the estate of Enoch
Kofi-Brobbey, with probate court approval and in payment of a medical lien released Mrs.
Brobbey, State Farm, “and all other persons, firms, or corporations liable or who might be
claimed to be liable.” Nipassa Kodzovi, Mr. Aderele, and the minor plaintiff Aderele also
executed similar releases.
On April 18, 2005, plaintiffs filed suit, alleging negligence against Enterprise, and both
negligence and strict liability against GM and City Chevrolet, asserting that the van was prone to
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roll over, had defective airbags, wobbled and was uncontrollable, and that the brakes failed
during normal operation. After discovery commenced, plaintiffs learned that in April 2004, GM
had recalled all 2003 Astro Chevrolet vans due to a suspension part defect that could result in a
loss of control. The recall vehicle identification number included the particular van that Brobbey
had rented from Enterprise. According to plaintiffs, the defect in the Astro vans was discovered
on May 19, 2003, upon inspection in Japan. Internal GM documents disclosed an “interference
condition” with the rubber boot that lubricates the lower ball joint in the front end suspension,
which was making contact with the steering knuckle and resulting in a cut in the rubber boot.
This breach of the lubricating mechanism could result in a loss of control and an accident.
On April 1, 2004, in connection with its safety recall, GM released a pertinent bulletin
relied upon by plaintiffs.2 In the bulletin, GM explained that the owner’s manual for the van
provided that the recommended lubrication interval for the ball joints for short trip/city driving
was either 3,000 miles or 3 months, whichever occurred first, or 7,500 miles or 12 months for
long trip/highway driving. The bulletin further stated that the technician should inspect for cut or
torn boots and ball joint wear, but “[i]n this case, the technician may not realize that the boot is
cut, because the ball joint rubber boot is designed to purge grease out of the vent” and the
“technician may not be able to distinguish purged grease from grease that might be leaking
though a cut boot.”
In the case sub judice, according to the affidavit of the claims administrator, there was no
2 It is unclear from the record, and from plaintiffs’ appendix of table of contents of the
record in their brief, whether these exhibits are part of the second amended complaint.
5 1-08-3474
documentation of any repair, inspection, or maintenance of the van from the date of its
manufacture, up until the date of the accident. As of that date, the van had been driven well over
3,000 miles.
During discovery, plaintiffs’ experts, Phillip Grismer and Gerald Rosenbluth, testified
that the short trip maintenance schedule of 3,000 miles should have been followed by a car rental
company such as Enterprise. In their affidavits and in their deposition testimony, both Grismer
and Rosenbluth also opined that Enterprise failed to timely lubricate the ball joints on the van
and that, had the lubrication been timely done, the defect would have been identified and could
have prevented the accident. Although Rosenbluth testified that there is potential for excessive
ball joint wear with either operator error or imbalance in the front tires causing vehicular
directional instability, it appeared from the photograph that the ball joint did not separate and that
there was no braking problem. Rosenbluth believed that the primary problem with the van was
that the vehicle was “out of balance,” where the “steering knuckle is squeezing the boot on one
side,” which would have shown up on the tire wear and tread had there been an inspection for
maintenance at 3,000 miles. The secondary problem was the ball joint issue. According to
Rosenbluth, a technician would readily observe that the steering knuckle was squeezing the boot
on one side and would know that would be a point of abrasion. Further, the pressure on the boot
“would be obvious and significant.”
Grismer acknowledged that just because the van had the condition does not mean that the
boot in this case was cut. However, given evidence of a failed ball joint, a damaged lower
control arm, a rolled over vehicle, and testimony from witnesses that there were steering and
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brake issues prior to the collision, Grismer concluded there was a failure of the front suspension
on the left-hand side. Grismer also opined that Enterprise should have followed the shorter 3,000
maintenance schedule because the van was a rental vehicle and Enterprise would have no idea of
the nature and extent of usage. Had Enterprise done a maintenance check and had the chassis
been lubricated, Grismer believed that the lower ball joint defect would have been discovered.
Enterprise’s expert, Edward Mays, was retained to examine the van; however, the focus
of his investigation was solely the brakes. He did not specifically inspect the suspension, nor was
he aware of the safety recall by GM. Mays observed the left front tire was flat, but did not notice
any misalignment. Further, although Mays did not check the front suspension, he testified that in
inspecting the brakes, he could not avoid seeing the front suspension, and he did not recall
observing anything abnormal. He offered no opinion as to the cause of the accident.
Lyndon Lie, an engineer for GM, testified that he saw the suspension system on a 2003
Astro van, but did not review the GM inspection report of the van at issue and could not tell from
the photographs taken of the van whether it had the particular defect which was the subject of the
recall. However, he agreed that there was a design defect in all of the 2003 Astro vans in the
steering knuckle, which is part of the front suspension system that is critical in a driver’s ability
to control the van when the vehicle is in motion.
Peter Rogulsky, an expert retained by GM, testified at his deposition that he learned that
this van was part of the GM safety recall. Rogulsky acknowledged that the photographs depicted
that the left front lower control arm was bent, but he opined that the rollover caused this dent.
Rogulsky further testified that the photographs showed that the ball joint was not worn.
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However, he did not know if the left front lower ball joint rubber boot was cut. He conceded that
the photographs did not show whether there was interference between the left front lower ball
joint rubber boot and the steering “knuckle,” or whether any grease was present on the left front
lower ball joint. Further, Rogulski opined that the shaking described by Brobbey and Aderele
was “most likely caused by rust on the brake rotors common in rental vehicles.” Rogulsky
opined that he believed that the shaking Aderele described “was most likely caused by tire
imbalance.”
On February 22, 2008, plaintiffs filed their second amended complaint, again alleging
negligence against Enterprise and adding a strict liability count, asserting that at the time the
vehicle left control of Enterprise, it was unreasonably dangerous and defective. The amended
complaint also brought a count against Enterprise for spoliation of evidence in disposing of the
van. Plaintiffs alleged that they were not informed of the product safety recall, notwithstanding
that GM and Enterprise knew or should have known of the defect prior to disposal of the van.
Thereafter, Enterprise and GM moved to dismiss the spoliation of evidence claim
pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2008)). On
July 17, 2008, the circuit court dismissed this count with prejudice, concluding that the certified
letter Enterprise sent to Brobbey and Shabangu on September 23, 2003, was sufficient to put all
plaintiffs on notice of the necessity to preserve the van.
Enterprise also moved for summary judgment on the strict liability and negligence claims,
alleging that plaintiffs failed to state a cause of action because of a lack of notice of a defect and
lack of a showing of proximate cause, and on the basis that any cause of action was barred by the
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releases signed by plaintiff’s under Aderele’s auto insurance policy. The circuit court granted
summary judgment on both the strict liability and negligence claims based solely on Enterprise’s
lack of notice of the defect from the manufacturer. Thereafter plaintiffs timely appealed.
ANALYSIS
Plaintiffs assert that the trial court erred in granting summary judgment on both the strict
liability and negligence counts on the rationale that Enterprise had no notice of any alleged
defect. Plaintiffs maintain that notice is not a defense to a strict liability claim. Plaintiffs further
assert that Enterprise in fact had constructive and/or actual notice of a defect in the van where:
(1) inspection or service of the van as recommended by the owner’s manual would have brought
the defect to light; and (2) based upon Brobbey’s complaints of problems with the vehicle at time
of the rental.
Summary judgment is appropriate when the pleadings, depositions and admissions show
that “there is no genuine issue as to any material fact and *** the moving party is entitled to a
judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2008). See also Robidoux v.
Oliphant, 201 Ill. 2d 324, 335, 775 N.E.2d 987, 993-94 (2002). Though summary judgment can
aid in the expeditious disposition of a lawsuit, it remains a drastic measure and should be allowed
only “when the right of the moving party is clear and free from doubt.” Purtill v. Hess, 111 Ill.
2d 229, 240, 489 N.E.2d 867, 871 (1986). We review orders granting summary judgment de
novo. Dardeen v. Kuehling, 213 Ill. 2d 329, 335, 821 N.E.2d 227, 230 (2004).
Enterprise argued below that it was entitled to summary judgment based on section 388
of the Restatement (Second) of Torts, and the trial court agreed, basing its judgment on this
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ground. Restatement (Second) of Torts, §388 (1965) (hereafter Restatement). Section 388 of the
Restatement delineates a duty to warn of known defects under negligence principles. In the case
sub judice, the circuit court did not address whether the pleadings on file presented genuine
issues of material fact on the elements of the strict liability claim, instead relying solely on
Restatement section 388. “To establish a prima facie case in strict liability, a plaintiff must plead
and prove three elements: (1) that an injury resulted from a condition in the product; (2) the
condition of the product was unreasonably dangerous; and (3) the condition existed at the time
the product left the manufacturers control.” Saieva v. Budget Rent-A-Car of Rockford, 227 Ill.
App. 3d 519, 531, 591 N.E.2d 507, 515 (1992), appeal denied, 146 Ill. 2d 651, 602 N.E.2d 476
(1992), citing Norman v. Ford Motor Co., 160 Ill. App. 3d 1037, 1041, 513 N.E.2d 1053, 1055
(1987); D'Olier v. General Motors Corp., 145 Ill. App. 3d 543, 547, 495 N.E.2d 1040, 1043
(1986). At common law, all entities in the distributive chain of an allegedly defective product,
including manufacturers, sellers, wholesalers, distributors and lessors of the product, are strictly
liable in products liability actions for injuries resulting from that product. Murphy v. Mancari's
Chrysler Plymouth, Inc., 381 Ill. App. 3d 768, 887 N.E.2d 569 (2008).
We are of course cognizant that section 2-621 of the Code of Civil Procedure (735 ILCS
5/2-621 (West 2008)), enacted in 1979, known as the “seller’s exception,” allows for the
dismissal of a nonmanufacturer defendant from a strict liability product claim upon certifying the
correct identity of the manufacturer of the allegedly defective product. Murphy, 381 Ill. App. 3d
at 770, 887 N.E.2d at 573. Section 2-621(b) provides:
“Once the plaintiff has filed a complaint against the manufacturer or
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manufacturers, and the manufacturer or manufacturers have or are required to have
answered or otherwise pleaded, the court shall order the dismissal of a product liability
action based on any theory or doctrine against the certifying defendant or defendants,
provided the certifying defendant or defendants are not within the categories set forth in
subsection (c) of this Section.” 735 ILCS 5/2-621(b) (West 2008).
To overcome a motion under this section, plaintiffs must show that the certifying
defendant exercised some significant control over the design or manufacture of the product, or
had actual knowledge of or created the defect. 735 ILCS 5/2-621(c) (West 2008); Saieva, 227 Ill.
App. 3d at 526, 591 N.E.2d at 511. “[T]he purpose of section 2-621 is to allow a
nonmanufacturing defendant, who has not been shown to have created or contributed to the
alleged defect, to defer liability upstream to the ultimate wrongdoer, the manufacturer.” Saieva,
227 Ill. App. 3d at 526, 591 N.E.2d at 511, citing Cherry v. Siemans Medical Systems, Inc., 206
Ill. App. 3d 1055, 1060-61, 565 N.E.2d 215, 218 (1990); Logan v. West Coast Cycle Supply Co.,
197 Ill. App. 3d 185, 190-91, 553 N.E.2d 1139, 1142 (1990).
Here, the manufacturer of the van, GM, has settled its portion of this lawsuit with
plaintiffs. Enterprise had no control over the design or manufacturing of the van, and thus this
prong is irrelevant. Although plaintiffs do not cite to the above statutory provisions, they argue
that Enterprise had knowledge the van had a problem at the time plaintiffs rented it, and on this
basis should not be granted summary judgment on strict liability. Enterprise argues that it did not
have prerental notice of any defect or potentially dangerous condition with the van and plaintiffs’
complaints at the time were never “linked” to the specific defect. Thus, the relevant question is
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whether Enterprise had actual knowledge of the manufacturing defect that made the van
unreasonably dangerous, i.e., the problem with the rubber boot.
Under section 2-621(c), a nonmanufacturer must have “actual knowledge of the
unreasonably dangerous nature of the physical characteristics/design of the product, not just
actual knowledge that the physical characteristics/design existed, in order to avoid dismissal.”
Murphy, 381 Ill. App. 3d at 775, 887 N.E.2d at 576.
In order for Enterprise to incur strict liability for the manufacturing defect, plaintiffs had
to demonstrate that Enterprise had knowledge of that defect. Plaintiffs’ claim that they made
Enterprise generally aware of a problem with shaking or steering prior to the accident fails to
meet that test. Here, while the accident occurred in January 2003, the recall was in April 2004.
Moreover, it is undisputed that, although plaintiffs insist they complained of the steering and
wobbling, Enterprise did not know of the manufacturing defect until the recall bulletin a year
after the accident occurred. Thus, there is no genuine issue of material fact that Enterprise did
not have actual knowledge of this manufacturing defect. The court therefore correctly found that
Enterprise was not put on actual notice of the dangerous condition until it was notified after the
recall regarding the problematic situation with the ball joint leak. Pursuant to our de novo
review, we find that the circuit court properly granted summary judgment to Enterprise on
plaintiffs’ strict liability claim pursuant to section 2-621. See Saieva, 227 Ill. App. 3d at 526,
591 N.E.2d at 511. On this basis, we affirm that portion of the court’s judgment.
We next address the plaintiffs’ negligence claim. To establish a cause of action for
negligence, a plaintiff must show the following elements: the existence of a legal duty owed by
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the defendant to the plaintiff; breach of that duty; a resulting compensable injury to the plaintiff;
and that the breach was the proximate cause of the injury. South Side Trust and Savings Bank of
Peoria v. Mitsubishi Heavy, No. 1-09-0148, slip. op. at 19 (March 31, 2010), citing Miller v.
Dvornik, 149 Ill. App. 3d 883, 891, 501 N.E.2d 160, 166 (1986). Unlike strict liability, under a
theory of negligence it is not sufficient to show that the product is defective or not reasonably
safe; the plaintiff must also show that the defendant breached a duty owed to plaintiff.
Cornstubble v. Ford Motor Co., 178 Ill. App. 3d 20, 24, 532 N.E.2d 884, 886 (1988). Further,
not only must plaintiff prove that the product was not reasonably safe, but also that the defendant
knew, or in the exercise of ordinary care should have known, of that unsafe condition.
Cornstubble, 178 Ill. App. 3d at 24, 532 N.E.2d at 886 (1988). “In a negligence action, a
defendant may rebut plaintiff's proof by showing its exercise of reasonable care through evidence
of its testing and inspection procedures [citation], or evidence that it complied with industry
custom and practice. [Citation.]” Cornstubble, 178 Ill. App. 3d at 24-25, 532 N.E.2d at 886.
Again, our review of a grant of summary judgment is de novo. Dardeen, 213 Ill. 2d at 335, 821
N.E.2d at 230.
In its ruling, the circuit court again relied on section 388 of the Restatement. Section 388
of the Restatement delineates a duty to warn of known defects under negligence principles for
suppliers of chattel and provides the following:
Ҥ 388 Chattel Known to Be Dangerous for Intended Use
One who supplies directly or through a third person a chattel for another to use is
subject to liability to those whom the supplier should expect to use the chattel with the
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consent of the other or to be endangered by its probable use, for physical harm caused by
the use of the chattel in the manner for which and by a person for whose use it is
supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the
use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will
realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of
the facts which make it likely to be dangerous.” Restatement (Second) of Torts §388, at
300-01 (1965).
However, though section 388 applies to all suppliers of chattel, liability thereunder
pertains to circumstances where the chattel is known to be dangerous by the supplier. See
Restatement (Second) of Torts, §388(a) (1965). Here, as noted, there is no genuine issue of
material fact that Enterprise did not have knowledge of the defect until the manufacturer recall,
which was issued after the lease of the vehicle. Further, the Restatement provides the rules for
suppliers “are equally applicable to all persons who in any way or for any purpose supply chattels
for the use of others or permit others to use their chattels,” including section 388, but “[t]he
peculiar rules applicable to donors, lenders, and lessors of chattels are stated in §§ 405-408.”
Restatement (Second) of Torts, Scope Note, at 300. Section 408 provides:
Ҥ 408 Lease of Chattel for Immediate Use
One who leases a chattel as safe for immediate use is subject to liability to those
14 1-08-3474 whom he should expect to use the chattel, or to be endangered by its probable use, for
physical harm caused by its use in a manner for which, and by a person for whose use, it
is leased, if the lessor fails to exercise reasonable care to make it safe for such use or to
disclose its actual condition to those who may be expected to use it.” Restatement
(Second) of Torts §408, at 366 (1965).
Section 408 regarding the liability of lessors of chattel more appropriately applies.
Comment a to section 408 provides:
“a. When lessor must inspect. The fact that a chattel is leased for immediate use
makes it unreasonable for the lessor to expect that the lessee will do more than give it the
most cursory of inspections. The lessor must, therefore, realize that the safe use of the
chattel can be secured only by precautions taken by him before turning it over to the
lessee. *** If the chattel is made by a third person, the lessor is required to exercise
reasonable care to inspect it before turning it over to the lessee.” Restatement (Second)
of Torts §408, Comment a, at 366-67 (1965).
Unlike section 388, section 408 does not require prior actual knowledge of the condition
but, rather, sets forth a separate duty for lessors to exercise reasonable care. Plaintiffs’
negligence action is based not only on the existence of the manufacturing defect or Enterprise’s
alleged knowledge of same, but also on Enterprise’s failure to conduct a reasonable inspection of
the van at 3,000 miles, pursuant to the manual. Thus, contrary to the circuit court’s reliance on
section 388, we find that section 408 more appropriately applies to the negligence claim against
Enterprise.
15 1-08-3474 It is well established that “ ‘a bailor is liable to an injured third person if (1) he supplied
the chattel in question[;] (2) the chattel was defective at the time it was supplied[;] (3) the defect
could have been discovered by a reasonable inspection, when inspection is required (i.e., where
the danger of substantial harm because of a defect is great, as we deem it is here)[;] and (4) the
defect was the proximate cause of the injury.’ ” Brooks v. Essex Crane Rental Corp., 233 Ill.
App. 3d 736, 739-40, 599 N.E.2d 111, 113 (1992), quoting Huckabee v. Bell & Howell, Inc., 47
Ill. 2d 153, 158, 265 N.E.2d 134, 137 (1970). See also Retzler v. Pratt & Whitney Co., 309 Ill.
App. 3d 906, 916, 723 N.E.2d 345, 353 (1999).
Enterprise nonetheless maintains that the evidence here is undisputed that even had the
van been inspected, this manufacturing defect would not have discovered. Regarding this
allegation, the trial court stated, “I don’t believe there is any expert testimony [the defect] could
have been found at that point.”
Apparently, the circuit court did not recall the opinions of both of plaintiffs’ experts. As
noted, Rosenbluth opined that a technician performing a lubrication of the ball joint at 3,000
miles would see a compromised ball joint boot with lubricant emanating from that region and
would readily observe that the steering knuckle was squeezing the boot on one side and would
know, as a technician, that that would be a point of abrasion, and the pressure on the boot “would
be obvious and significant.” Plaintiff’s other expert, Grismer, also opined that Enterprise should
have followed the shorter 3,000 maintenance schedule because the van was a rental vehicle and it
would have no idea what kind of usage there was, so one would err on the side of caution.
Grismer opined that, had Enterprise done a maintenance check and had the chassis been
16 1-08-3474 lubricated, Enterprise would have discovered the lower ball joint defect. Notably, it is
undisputed that the maintenance records for the subject van have not been presented. Hence, we
find that plaintiffs have sufficiently alleged and also presented evidence that Enterprise should
have inspected the van at 3,000 miles and that upon a reasonable inspection the defect would
have been discovered.
Nonetheless, defendant further maintains that summary judgment on the negligence claim
was appropriate given the undisputed evidence establishing it was Shabangu’s negligence in
speeding on the exit ramp that caused the accident. However, in response to Enterprise’s motion
for summary judgment, plaintiffs specifically denied that Shabangu was speeding on the exit
ramp but rather maintained that she lost control of the van due to the design defect, which caused
the van to be unable to slow down or stop. Thus, we find that such issues are disputed factual
questions, which are genuine issues of material fact and are wholly inappropriate for us to
resolve. Although Enterprise admits that the van in this case was part of the recall, it disputes
that this defect caused the accident in this case. Enterprise argues that “the physical and
diagnostic evidence simply does not corroborate that she ever braked on the ramp.” Yet, in
making these arguments, Enterprise is essentially weighing the evidence. The instant
proceedings are rife with factual issues concerning the proximate cause of this accident.
Though defendant repeatedly underscores evidence of Shabangu’s asserted negligence in
speeding while exiting on the ramp, this argument hinges on the determination of proximate
cause and would go toward establishing comparative negligence. “The question of proximate
cause is ordinarily one for the jury.” King v. Petefish, 185 Ill. App. 3d 630, 641, 541 N.E.2d 847,
17 1-08-3474 854 (1989), citing Ney v. Yellow Cab Co., 2 Ill. 2d 74, 117 N.E.2d 74 (1954), and Felty v. New
Berlin Transit, Inc., 71 Ill. 2d 126, 374 N.E.2d 203 (1978). “Under the theory of pure
comparative negligence, it is also the fact finder's duty to determine the relative degree of fault of
the parties and reduce the plaintiff's award accordingly.” King, 185 Ill. App. 3d at 641, 541
N.E.2d at 854. Here, there is a genuine issue of material fact as to whether Shabangu was
negligent in her use of the van or whether Enterprise supplied a van with a defect that caused the
accident, which could have been discovered if Enterprise had exercised reasonable inspection.
Viewing all the evidence in the light most favorable to plaintiffs, as we must, we reverse the
grant of summary judgment on the negligence claim.
Finally, we address plaintiffs’ assertion that the trial court erred in granting dismissal of
their spoliation claim. When a court rules on a section 2-619 motion to dismiss, it “must
interpret all pleadings and supporting documents in the light most favorable to the nonmoving
party.” In re Chicago Flood Litigation, 176 Ill. 2d 179, 189, 680 N.E.2d 265, 270 (1997). “The
court should grant the motion only if the plaintiff can prove no set of facts that would support a
cause of action.” In re Chicago Flood Litigation, 176 Ill. 2d at 189, 680 N.E.2d at 270. “Our
review of a section 2-619 dismissal is de novo.” Van Meter v. Darien Park District, 207 Ill. 2d
359, 368, 799 N.E.2d 273, 278 (2003).
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. Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 194-95, 652 N.E.2d 267, 270,
18 1-08-3474 (1995). This is a two-step analysis; “[a]s a threshold matter, we must first determine whether
such a duty arises by agreement, contract, statute, special circumstance, or voluntary
undertaking.” Dardeen, 213 Ill. 2d at 336, 821 N.E.2d at 231, citing Boyd, 166 Ill. 2d at 195, 652
N.E.2d at 270-71. “If so, we must then determine whether that duty extends to the evidence at
issue-i.e., whether a reasonable person should have foreseen that the evidence was material to a
potential civil action.” Dardeen, 213 Ill. 2d at 336, 821 N.E.2d at 231, citing Boyd, 166 Ill. 2d at
195, 652 N.E.2d at 271.
Enterprise maintains that plaintiffs Brobbey and Shabangu themselves were culpable for
not preserving the van because they “showed no interest in cooperating with Enterprise to
investigate their claim” and “simply neglected their own rights.” In support, Enterprise cites to
Burlington Northern & Santa Fe Ry. Co. v. ABC-NACO, 389 Ill. App. 3d 691, 713, 906 N.E.2d
83, 102 (2009) (“NACO effectively concedes that its representatives were at the derailment site
and did not request preservation of the items that they now discuss”). However, we find
Burlington Northern & Santa Fe Ry. Co. distinguishable, as there, NACO’s representative was
actually present at the inspection site, and even took photographs that were later misplaced, but
thereafter did not request further examination of the site or request that any items of evidence be
preserved. Burlington Northern & Santa Fe Ry. Co., 389 Ill. App. 3d at 713, 906 N.E.2d at 102.
Here, on the contrary, plaintiffs were not present for the inspection of the van and did, in fact,
later request to inspect the vehicle.
Enterprise claims that plaintiffs had nearly four months’ opportunity to inspect the van
and/or request its preservation. Yet, the letter sent to plaintiffs was dated September 23, 2003,
19 1-08-3474 and only provided plaintiffs until September 30, 2003, to request preservation of the van, thus
providing plaintiffs with less than a week’s time to respond. We find imposing such a short
time-frame on plaintiffs to respond extremely troubling, especially given the severity of the
accident and plaintiffs’ injuries. Further, Enterprise offers no authority for finding a waiver of a
clearly established duty to preserve evidence, nor has our research revealed any.
Enterprise further argues that “to the extent [p]laintiffs allege, and the circumstances
show, that Enterprise assumed a duty to preserve the van, it is axiomatic that an undertaken duty
is self-limited by the scope of the undertaking itself.” Curiously, however, Enterprise cites no
authority for this asserted “axiomatic” proposition either. While generally this proposition is true
for a voluntary undertaking, we find no such limitation in Boyd and its progeny regarding the
duty to preserve evidence for potential litigants.
On the contrary, we find that Illinois courts have not imposed such a limitation. The
Jones court held that the plaintiff satisfied the elements of a spoliation claim by alleging that the
third party defendant had a duty to preserve the wheel assembly involved in an accident, where it
was alleged that a reasonable party would have recognized that the wheel assembly was material
to the negligence action. Jones, 322 Ill. App. 3d at 423, 752 N.E.2d at 13. The facts were
sufficient to impose the duty to preserve the wheel assembly on both the insurer and the owner of
the vehicle who was in possession of the wheel assembly after the accident.
Enterprise further maintains that plaintiffs’ assertion that the recall of the 2003 Chevy
Astro vans constituted such “special circumstances” under Boyd fails factually because of the
chronology of events and because of the absence of any showing that Enterprise had any
20 1-08-3474 knowledge of the recall prior to the destruction of the van. However, our supreme court in
Dardeen addressed the issue of what constitutes a “special circumstance” and analyzed it in the
following manner:
“We hinted at what special circumstances might give rise to a duty to preserve
evidence in Miller v. Gupta, 174 Ill. 2d 120 (1996). In Miller, a medical malpractice
plaintiff's attorney requested X rays from the plaintiff's doctor. The doctor complied and
obtained the X rays. Before taking the X rays to the hospital to copy them, he placed
them on the floor of his office near the wastebasket. The X rays disappeared. A
housekeeping employee who cleaned the doctor's office guessed that she disposed of the
X rays, which were later incinerated. We remanded to allow the plaintiff to amend her
negligent spoliation claim to satisfy Boyd. Miller, 174 Ill. 2d at 129.
Unlike the plaintiff in Miller, Dardeen never contacted the defendant to ask it to
preserve evidence. Dardeen never requested evidence from State Farm, and he never
requested that State Farm preserve the sidewalk or even document its condition. And
though he visited the accident site hours after he was injured, he did not photograph the
sidewalk. Additionally, unlike the doctor in Miller, State Farm never possessed the
evidence at issue and, thus, never segregated it for the plaintiff's benefit.” Dardeen, 213
Ill. 2d at 338, 821 N.E.2d at 232.
In adherence to the analysis employed in Dardeen, we discern that Enterprise had a duty
to exercise reasonable care to preserve the van for the benefit of plaintiffs as potential litigants.
Notably, here, plaintiffs specifically complained both before and after the accident that there was
21 1-08-3474 some defect that caused the van to wobble, the steering wheel to shake, and the brakes to
malfunction. Enterprise then undertook to preserve the van to conduct its own inspection of
plaintiffs’ allegations of malfunction. The van was in the possession and control of Enterprise.
According to its letter, Enterprise also segregated the van for the benefit of plaintiffs. Further,
though Enterprise argues they were not timely, plaintiffs in fact did request to inspect the van.
These facts constitute the “special circumstance,” and not merely the specific fact of the
manufacturer recall. The plaintiffs claim the destruction of the van, Enterprise’s letter
notwithstanding, was not an exercise of reasonable care, and we cannot say as a matter of law
that the allegation here is deficient. Under Boyd and its progeny, we perceive that plaintiffs
sufficiently alleged that a reasonable person would have foreseen that the van was material
evidence to a potential civil action.
Lastly, defendant asserts that it had no relationship with the other nine passengers that
could give rise to a circumstantial duty to preserve the van, and that plaintiffs cannot rely on
foreseeability of harm alone. Enterprise argues that it does not owe any duty to the other
plaintiffs to preserve the van. However, a similar argument was rejected in Stinnes Corp. v.
Kerr-McGee Coal Corp., 309 Ill. App. 3d 707, 722 N.E.2d 1167 (1999), where the defendant
argued that the plaintiff had no pretort relationship with the plaintiff which would give rise to a
duty to preserve evidence, and that the voluntary assumption of a duty did not flow to the
plaintiff because, under Boyd, that duty only flows to the personal injury tort victims. The court
rejected this argument because there was no such distinction that could be gleaned from the Boyd
opinion, and in fact, case law holds to the contrary. Stinnes Corp., 309 Ill. App. 3d at 715, 722
22 1-08-3474 N.E.2d at 1173. The court cited Shimanovsky v. General Motors Corp., 181 Ill. 2d 112, 692
N.E.2d 286 (1998), where our supreme court held that the plaintiff's destructive testing of an
automobile’s allegedly defective power-steering components prior to the commencement of a
lawsuit warranted the imposition of a discovery sanction against the plaintiff.
In Shimanovsky, the defendant sought the imposition of a sanction after the plaintiff's
experts either altered the condition of or partially destroyed the power-steering components. Our
supreme court held that a potential litigant owes a duty to an opposing party “to take reasonable
measures to preserve the integrity of relevant and material evidence.” Shimanovsky, 181 Ill. 2d at
121, 692 N.E.2d at 290. The Stinnes Corp. court reasoned, “the Shimanovsky court did not limit
its analysis to plaintiffs in personal injury lawsuits, but the court said that any ‘potential litigant’
owes the duty to preserve evidence.” Stinnes Corp., 309 Ill. App. 3d at 716, 722 N.E.2d at 1173.
“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.” Jones, 322 Ill.
App. 3d at 422-23, 752 N.E.2d at 12. A duty extends to particular evidence if a reasonable
person should have foreseen that the evidence was material to a potential civil action. Dardeen,
213 Ill. 2d at 336, 821 N.E.2d at 231. Thus, Enterprise cannot sustain the dismissal of the
spoliation claim on this argument either.
Boyd remains our supreme court’s “watershed pronouncement on spoliation of evidence.”
See Dardeen, 213 Ill. 2d at 335, 821 N.E.2d at 231. Our supreme court held that the trier of fact
23 1-08-3474 should hear the negligent spoliation claim concurrently with the underlying suit on which it is
based because “[i]f a plaintiff loses the underlying suit, only the trier of fact who heard the case
would know the real reason why.” Boyd, 166 Ill. 2d at 198, 652 N.E.2d at 272. Further, the
court reasoned, “[t]his factor is important because a spoliator may be held liable in a negligence
action only if its loss or destruction of the evidence caused a plaintiff to be unable to prove the
underlying suit.” (Emphasis in original.) Boyd, 166 Ill. 2d at 198, 652 N.E.2d at 272. The
amount of damages should be determined by the trial court and the trier of fact after a full trial on
the merits. Boyd, 166 Ill. 2d at 198, 652 N.E.2d at 272. We do not apply an evidentiary
presumption, as “[a] plaintiff should not be allowed to recover with an evidentiary presumption
where it can be proven that the underlying suit is meritless.” Boyd, 166 Ill. 2d at 200, 652 N.E.2d
at 273. Thus, the underlying negligence claim must proceed, based on the facts before us, and
then the issue of spoliation should be decided. Further, even if the underlying negligence claim
fails, a claim for spoliation may still survive. See Miller v. Gupta, 174 Ill. 2d 120, 129-30, 672
N.E.2d 1229, 1233-34 (1996) (although the plaintiff's underlying claim was procedurally
defective and required dismissal, the plaintiff could still amend the complaint proceed with the
spoliation action).
CONCLUSION
For the foregoing reasons, we affirm the grant of summary judgment on the strict liability
count against Enterprise, reverse the grant of summary judgment on the negligence claim and
dismissal of the spoliation claim, and remand this case for further proceedings consistent with
this opinion.
24 1-08-3474 Affirmed in part and reversed in part. Cause remanded.
HOWSE and LAVIN, JJ., concur.