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Negligent Spoliation of Evidence: How to Prevail Over Missing Evidence


In everyday life, people are prompted to interact with things for an infinite number of reasons. For example, a factory employee interacts with a certain machine in order to perform his duties. An avid reader interacts with chairs at the coffee shop to sit down and enjoy a book with a cappuccino. A mother interacts with a shopping cart at the grocery store to secure her infant in the child seat. While these interactions may seem insignificant, the potential for serious injury still exists.

Sticking with the three examples from above, let’s say each of these individuals becomes injured from interacting with these objects: the factory worker suffers a hand injury because the machinery malfunctions; the avid reader suffers a back injury because the chair she sat in collapsed when sitting down; and when the mother turns her head away to look at shelf items, the infant suffers a head injury after falling from the shopping cart because the seat restraints did not provide adequate security. Each of these individuals decides to hire an attorney and file a lawsuit to recover damages from the personal injuries.

However, after the lawsuit is filed, each individual learns that the object that caused the injury—the machinery, the chair, and the shopping cart—are missing. What happened to them? These objects are important to the lawsuit in order to prove their case. Are these individuals out of luck? Do they have any chance of recovering damages that they rightfully deserve? The attorneys at Sherwood Law Group are here to tell you that all is not lost.

Missing evidence potentially opens the door for the plaintiff to bring a negligent spoliation of evidence claim. A negligent spoliation claim allows the plaintiff to recover damages despite not possessing the key piece of evidence by arguing that:
  • the defendant had a duty to preserve the evidence;
  • the defendant breached that duty by losing the evidence;
  • the evidence undermines the plaintiff’s ability to prove his claim; and
  • the plaintiff has suffered actual damage as a result.

Generally, Illinois does not impose a duty to preserve evidence (such as the machinery, chair, and shopping cart from above). However, there are situations when a person or entity is obligated to preserve a key piece of evidence. These situations arise when (1) a special relationship is established between the plaintiff and the defendant, and (2) it is reasonably foreseeable that the object causing the injury would be important to a potential lawsuit. Once these two requirements are established, the plaintiff is able to argue the remainder of the negligent spoliation claim: that defendant breached its duty to keep the evidence, the missing evidence undermines the strength of the claim, and actual damages have resulted.

In October of 2016, the Seventh Circuit Court of Appeals analyzed the two requirements in Schaefer v. Universal Scaffolding & Equipment, LLC., 839 F.3d 599. In this case, the plaintiff, a scaffolding construction worker, was injured while assembling scaffolding. A metal bar fell from the scaffolding above him and landed on his head, causing various neck, back, shoulder, and arm injuries. Shortly after the incident, the defendant (plaintiff’s employer) took possession of the metal bar and kept it in storage. During the discovery phase of the lawsuit, the plaintiff requested to inspect the metal bar for any defects that could have caused it to fall. Unfortunately, the metal bar was lost while in storage, never to be seen again.

The court first considered the special relationship requirement. This requirement can be difficult to pin down because a “special relationship” has not been clearly defined. However, a special relationship can be established if the plaintiff specifically requests the defendant to keep a piece of evidence, or if the defendant voluntarily stored the evidence. In this case, the defendant voluntarily decided to keep the metal bar in storage. This act was enough to convince the court that a special relationship existed. Next, the court considered the foreseeability requirement. In this case, that was easy. The metal bar was the object that fell on the plaintiff’s head and caused his injuries. It was entirely reasonable for the defendant to foresee that the metal bar would be an important piece of evidence in a personal injury claim. From these facts, a duty was imposed on the defendant to properly preserve the metal bar.

After the duty to preserve the metal bar was imposed, the court found that the defendant breached that duty by losing the bar. Without the metal bar, it would be very difficult for the plaintiff to prove that defective scaffolding caused his injuries. As a result, the plaintiff would be personally on the hook for the medical expenses and lost wages he incurred from the injuries.

The attorneys at the Sherwood Law Group routinely face challenges just like this in personal injury case. Fortunately, the attorneys are experienced enough to know what to look for and how to obtain the result you deserve. Don’t let missing evidence convince you that you have no hope of recovering damages for injuries you have suffered. Hope is not lost, and the attorneys at the Sherwood Law Group are ready to use every aspect of the law to get you back on your feet.
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