Preserving Evidence: What happens if evidence gets destroyed?

On Behalf of | May 17, 2019 | Blog Articles

Preserving Evidence: What happens if evidence gets destroyed?

It comes as no surprise that in order to win a lawsuit (or even file a lawsuit), the plaintiff needs to have and present evidence. For example, there may be a video that shows how the incident took place. It is absolutely necessary that these pieces of evidence be preserved. However, many times the important pieces of evidence are not in the plaintiff’s possession. In fact, these important pieces of evidence may be in the potential defendant’s possession.  In order to make sure that the evidence is saved, a preservation of evidence letter should be sent out as soon as possible, even before a lawsuit is filed. But what happens if that evidence becomes lost or destroyed? More importantly, what happens when the evidence that has been lost or destroyed is crucial to the plaintiff’s claim? The plaintiff may then have a cause of action for negligent spoliation. (Spoliation is the destruction or failure to preserve evidence.)

In the case of Weigand v. Nine-Fifty, Ltd., a man was injured at a Lincoln Park bar when a ceiling tile fell on him. The man filed a lawsuit against the bar alleging, among other things, that the bar breached its duty to preserve the video and as a result the man could not prove his cause of action against the bar. The man alleged that since the video was not preserved, he could not identify other potential defendants who caused his injury. There were several issues in the case, but one of the issues was whether another customer threw a bottle at the ceiling causing the tile to fall. The bar had cameras which actually recorded the incident. The bar’s managers viewed the video after the incident. However, after viewing the video, the bar deleted videos, as it routinely did.

In Boyd v. Travelers Ins. Co., 166 Ill. 2d 188, the Illinois Supreme Court stated that in order to bring a cause of action for negligent spoliation of evidence, the plaintiff must plead 1) The existence of a duty to preserve evidence owed by the defendant to the plaintiff; 2) A breach of that duty; 3) Injury was proximately caused by the breach; and 4) Damages.

The court inWeigandheld that “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.” The bar breached the duty when they deleted the video. Moreover, the “loss or destruction of evidence caused the plaintiff to be unable to prove an underlying lawsuit.” In Weigand, the court found that the bar should have known that the video would be material to a potential civil action because the bar’s insurance company contacted the man about the incident. The bar should have known that the man would or could have a potential claim. Yet, the bar did not preserve the video. This failure to preserve the video caused the man to not be able to see the video and conduct his own investigation as to what was happening in the bar at the time of the incident. Therefore, the court allowed the man to proceed in his suit based on the claim of negligent spoliation.

Negligent spoliation is not the only remedy and, at times, may not be the appropriate remedy.  If you are involved in a case or think that you may have a case, contact Loizzi Law Offices to talk about your specific matter.