FIRST DIVISION
March 24, 2002

Plaintiff, Nicholas Kambylis, filed a complaint against defendant, Ford Motor Company,asserting a claim on a products liability theory for injuries he sustained in a car accident when hehit another vehicle from the rear while driving a 1995 Ford Escort (Escort). Plaintiff assertedthat the vehicle was defective because the air bag failed to deploy upon impact, thus enhancinghis injuries. After the accident, the Escort was towed and was eventually destroyed by the Cityof Chicago's automotive pound. As a result, defendant filed a motion to bar evidence as adiscovery sanction, alleging that plaintiff spoiled crucial evidence by failing to preserve theEscort. Defendant likewise moved for summary judgment. The trial court granted defendant'smotions. Plaintiff now asserts that the trial court erred in granting defendant's motion to barevidence as a discovery sanction because plaintiff answered interrogatories and requests toproduce, gave a deposition at defendant's request, did not violate any court orders, did notintentionally allow the Escort to be destroyed and otherwise cooperated in the discovery process. Plaintiff likewise contends that the grant of summary judgment in defendant's favor wasimproper because plaintiff provided adequate circumstantial and expert opinion evidencedemonstrating that the Escort was defective. For the reasons that follow, we affirm.

BACKGROUND

For purposes of this appeal, it is undisputed that plaintiff was driving his parents' Escorton Pulaski Street near the intersection with Marquette Street in Chicago at approximately 7:50a.m. on July 9, 2000, when he had a "momentary lapse" and rear-ended the vehicle in front ofhim. As a result of the accident, plaintiff sustained numerous injuries to his face and underwentseveral surgeries. The Escort was towed by the City of Chicago (the City) immediately followingthe accident to an automotive pound located at 10301 South Doty Avenue in Chicago.

On December 11, 2000, plaintiff filed a two-count complaint against defendant. Count Iof the complaint sought compensatory damages under a products liability theory, claiming thatthe Escort was "defective and unreasonably dangerous for its foreseeable intended use." Count IIof the complaint sought punitive damages on the basis that defendant "showed an utterindifference to and conscious disregard for the safety of the occupants of the [Escort] *** [and]*** knew or recklessly failed to discover that the [Escort] was defective and unreasonablydangerous." Count II was eventually stricken without prejudice because plaintiff failed to obtainleave of court to seek punitive damages as required under section 2-604.1 of the Code of CivilProcedure. 735 ILCS 5/2-604.1 (West 2000).

On July 12, 2000, the City sent a "Notice of Vehicle Impoundment" to Toula Kambylis,⁽¹⁾plaintiff's mother. The notice advised that the Escort was in the automotive pound located at10301 South Doty Avenue in Chicago, and that anyone, aside from the owner, seeking its releasefrom the pound would be required to "furnish the written and notarized approval of the registeredowner." The notice further warned:

"Should you fail to retrieve your vehicle or request a hearing within the 15 day period [previously defined as 15 days from the date of the notice], your inaction will constitute a waiver of your rights therein, and this vehicle and its contents, if any, will be disposed of according to the provisions of theIllinois Motor Vehicle Code."

On July 26, 2000, one day before the above referenced notice indicated that the Escortwas to be destroyed, plaintiff's father traveled to the automotive pound and photographed theEscort, but did not seek its release from the pound. Plaintiff contends that, on that same date, hiscounsel addressed the following letter to defendant:

"We represent Nicholas Kambylis who was involved in an accident on July 9, 2000, while driving a 1995 Ford Escort. We contend that his air bags did not properly function. His vehicle was towed by the City of Chicago, Automotive Pound, 10301 S. Doty Ave., Chicago, IL (312) 746-4954, # S/R 00-00874522, SST:0000146838. Your company needs to act quickly to preserve the vehicle. We have taken photographs." 

Defendant maintains that it never received this letter, and the record reveals that the letter or acopy thereof was not included in the discovery materials or submitted to defendant despitedefendant's request pursuant to Supreme Court Rule 214 (166 Ill. 2d R. 214) that plaintiffproduce all communication which, he contended, constituted notice regarding the impendingdestruction of the Escort. The record further reflects that plaintiff did not produce the letter untildefendant filed its motion seeking to bar evidence as a sanction for plaintiff's failure to producethe Escort.

In support of his contention that the July 26 letter was, in fact, sent as he alleged, plaintiffcalls our attention to a letter addressed to plaintiff's attorney from defendant dated September 6,2000, stating that defendant "acknowledges" plaintiff's "recent contact to Ford Motor Company." However, there is no indication on the face of the letter that the "recent contact" defendant's lettermakes reference to is the July 26 letter allegedly written by plaintiff. Conversely, in support ofits contention that plaintiff never sent the July 26 letter, defendant produced a letter sent byplaintiff on October 13, 2000, indicating that the Escort was "in a police pound on the south sideof Chicago *** [at] 10430 Oda St., Chicago, IL." Defendant also produced a letter dated May 8,2001, which stated that the Escort was taken to "101^st and Oda, Chicago, Illinois" and thatplaintiff had "secured a release of the vehicle and he [sic] [the vehicle is] still in the possession ofthe Chicago Authorities." Both of these letters contradict the representation made by plaintiff inthe July 26 letter and inferentially would negate any previous letter dealing with the samesubject. Although the automotive pound indicated in the notice sent to plaintiff that the Escortwould be destroyed on July 27, 2000, the record indicates that the Escort was not removed fromthe Doty Street automotive pound until August 11, 2000, and was thereafter destroyed.

Defendant contends on appeal that it learned that the Escort had been destroyed throughits own efforts and, upon receiving that information, filed its "Motion to Bar Evidence and forSummary Judgment" on the basis of "plaintiff's spoilation of evidence in failing to either preservethe vehicle or notify Ford of its availability and his claim." In the motion, defendant contendedthat plaintiff had a duty to preserve the Escort and that his breach of that duty resulted indefendant being significantly prejudiced and ultimately foreclosed from defending againstplaintiff's claims. Defendant urged the court to bar plaintiff's evidence as a sanction and grantsummary judgment.

Plaintiff filed a response asserting that no sanction for spoilation of evidence waswarranted because he notified defendant that the vehicle was impounded through his July 26,2000, letter and thus satisfied his duty of preservation. Plaintiff further asserted that he did not"do anything deliberately or negligently to destroy evidence" and that he cooperated "in goodfaith in discovery." In addition, plaintiff argued that even though the car was destroyed, therewas sufficient secondary evidence to preclude the motion for summary judgment. Attached toplaintiff's response was a report dated February 1, 2002, submitted to plaintiff's counsel in theform of a letter from Dr. Daubert, who represented himself as an employee of a forensicengineering firm. In the portion of the report included in the record on appeal, Dr. Daubertopined that the car was defective because the air bag failed to deploy. Dr. Daubert stated thatplaintiff was involved in "a full frontal contact. *** Therefore, the type of collision is met [sic]for air bag deployment. The severity of the collision is also of sufficient magnitude that the airbag should have deployed." Plaintiff represents in his brief that the report also indicated that"[t]he non-deployment of the air bag is consistent with other complaints received for the samemodel year." This latter sentence, however, is not included in the portion of the record receivedby this court, which is noticeably incomplete.

Despite Dr. Daubert's report, and the other contentions advanced by plaintiff in hisresponse, defendant's motion to bar evidence and motion for summary judgment were granted. This appeal followed.

ANALYSIS

Discovery Sanction

On appeal, plaintiff first contends that the trial court erred in barring his evidence as adiscovery sanction because: (1) his failure to preserve the vehicle did not violate any courtorders; (2) defendant was informed of the whereabouts of the vehicle and was "put on notice toact quickly to preserve the subject vehicle;" (3) he took no affirmative action to destroy thevehicle or any other evidence; and (4) he photographed the vehicle before it was destroyed. Inresponse, defendant asserts that the trial court properly granted its motions because plaintiff had aduty to preserve the Escort or to notify defendant of the claims against it, and plaintiff breachedthose duties when he allowed the car to be destroyed with knowledge of its impendingdestruction. We agree.

It is well settled that, while there is generally no duty to preserve evidence, such a dutymay arise through an agreement, contract, statute or any other special circumstance or voluntaryassumption of a duty by affirmative conduct. Boyd v. Travelers Insurance Co., 166 Ill. 2d 188,195, 652 N.E.2d 267, 270-71 (1995). In any of these circumstances, a duty of due care topreserve evidence exists "if a reasonable person in the defendant's position should have foreseenthat the evidence was material to a potential civil action." Boyd, 166 Ill. 2d at 195, 652 N.E.2d at271. With respect to causes of action sounding in strict liability, such as the case at bar, Illinoiscourts have long held that "[t]he preservation of an allegedly defective product is of the utmostimportance in both proving and defending against a strict liability action." Graves v. Daley, 172Ill. App. 3d 35, 38, 526 N.E.2d 679, 681 (1988). This is because the allegedly defective product,maintained in the condition it was in at the time of the occurrence, often aids in determiningwhether the product is defective and how the defect occurred, "and is usually far more instructiveto a fact-finder than photographs or oral descriptions." Shelbyville Mutual Insurance Co. v.Sunbeam Leisure Products Co., 262 Ill. App. 3d 636, 642, 634 N.E.2d 1319, 1323 (1994). Failure to preserve evidence will support sanctions, including debarment of evidence. SeeAmerican Family Insurance Co. v. Village Pontiac-GMC, Inc., 223 Ill. App. 3d 624, 626, 585N.E.2d 1115, 1117-18 (1992). The decision to impose sanctions is largely within the discretionof the trial court, and the trial court's decision will not be disturbed on review absent an abuse ofdiscretion. Shelbyville, 262 Ill. App. 3d at 641, 585 N.E.2d at 1323.

In this case, plaintiff first asserts that he did not have a duty to preserve the vehiclebecause he was not ordered to do so by the court. This argument, however, was previouslyconsidered and rejected by this court in Graves v. Daley. There, the plaintiffs filed suit allegingthat a fire in their home was caused by a defective furnace in their basement, sold and installedby the defendant. After the fire, the plaintiffs' insurance carrier inspected the home andconcluded that the furnace was the probable cause of the fire. The plaintiffs then disposed of thefurnace, prior to filing suit, with the permission of their insurance carrier. The defendant movedto bar the plaintiffs from presenting any evidence regarding the condition of the furnace afterlearning that the furnace was unavailable for inspection and the motion was granted by the trialcourt. Graves, 172 Ill. App. 3d at 36-37, 526 N.E.2d at 680.

On appeal, the plaintiffs alleged that the trial court's sanction was unwarranted becausethey did not violate any court orders when destroying the furnace. We rejected their contention,reasoning that "[t]he plaintiffs are not free to destroy crucial evidence simply because a courtorder was not issued to preserve the evidence. Further, the furnace was destroyed by theplaintiffs after their expert had examined it and before the suit was filed, thus, the court could nothave issued a preservation order." Graves, 172 Ill. App. 3d at 38, 526 N.E.2d at 681. Welikewise concluded that the plaintiffs had a duty to preserve the furnace because they "knew, orshould have known, that a defective condition of the furnace, the item they allege caused the fire,was a crucial piece of evidence and should have been preserved." Graves, 172 Ill. App. 3d at 39,526 N.E.2d at 682; accord, Silvestri v. General Motors Corp., 271 F.3d 583, 591 (4^th Cir. 2001)("[t]he duty to preserve material evidence arises not only during litigation but also extends to thatperiod before the litigation when a party reasonably should know that the evidence may berelevant to anticipated litigation"); see also American Family, 223 Ill. App. 3d at 626, 585 N.E.2dat 1118 ("it is similarly sound that sanctions may also be imposed despite the absence of a courtorder barring destruction"), citing R. Johnston & K. Kandaras, Discovery in Illinois 181 (1985). We also noted that the destruction of the furnace could not be excused because it was not"innocently or negligently destroyed." Graves, 172 Ill. App. 3d at 39, 526 N.E.2d at 681.

In this case, like Graves, the facts support a conclusion that plaintiff had a duty topreserve the Escort because he knew or should have known that the defective condition of theEscort was a crucial part of the investigation, with or without a court order mandatingpreservation. There can be little question that plaintiff and his family recognized that thepreservation of the Escort was of crucial relevance to the case they intended to file againstdefendant because plaintiff's father went to the automotive pound to photograph the Escort priorto its destruction.

The facts also show, as they did in Graves, that the destruction of the evidence cannot beattributed to the commission of an innocent mistake resulting in the Escort's destruction. Theparties do not dispute that plaintiff's parents received a notice at their correct address from theautomotive pound advising them that the Escort was going to be destroyed by the City if it wasnot claimed by a date certain. Despite this notice, plaintiff failed to act to protect the car. Asalready noted, plaintiff argues that defendant should bear responsibility for the car's destructionbecause it, too, was given notice, through a letter from plaintiff, that the car was going to bedestroyed. While we will deal with this issue more thoroughly later, we note here, as we didpreviously, that there is a dispute as to whether defendant actually received the letter plaintiffspeaks of. Moreover, plaintiff cites no authority and we find none which suggests that plaintiff'sduty to preserve is satisfied by merely advising defendant to protect the car, especially where, ashere, plaintiff had control of the car and defendant could not remove it from the automotivepound without plaintiff's express consent in the form of "written and notorized approval." Itstands to reason that such control need not entail actual custody of the evidence if, in fact, suchevidence is in the hands of a bailee subject to instruction from the bailor.

Thus, even though plaintiff was not ordered by the court to preserve the Escort, the lackof a court order does not give a plaintiff the right to stand by idly while evidence crucial to theresolution of a case is destroyed, especially where, as here, plaintiff knew where the evidencewas and had the authority to prevent its destruction and where the destruction of the evidencegreatly prejudiced the defendant such that it prohibited it from effectively defending againstplaintiff's claims. Further, as we concluded in Graves, plaintiff's argument that he did not have aduty to preserve the evidence based on the absence of a court order is particularly unpersuasivewhere the evidence demonstrates that a court order could not have been issued because plaintiffhad not filed suit at the time the car was destroyed.

Plaintiff next asserts that the trial court erred in barring evidence of the vehicle as adiscovery sanction because plaintiff took no affirmative action to destroy the vehicle andotherwise cooperated with the discovery process. This claim, as the proceeding one, also lacksmerit. As previously articulated, the duty to preserve evidence exists where a reasonable personin the plaintiff's position knew or should have known that the evidence was material to apotential civil action. See Boyd, 166 Ill. 2d at 195, 652 N.E.2d at 271. While plaintiffapparently argues that he cannot be held responsible for breaching his duty to preserve evidencewhen he personally did not destroy the evidence, we see no caveat in the preservation rule forplaintiffs who knew or should have known that the evidence should have been preserved,neglected to preserve it, but did not happen to personally destroy it. We find no case law tosupport such an interpretation, which would excuse passive spoilation, i.e., spoilation throughinaction. In fact, while not addressing this issue directly, Illinois cases clearly point to theopposite conclusion. See Shelbyville, 262 Ill. App. 3d at 643, 634 N.E.2d at 1324 (where theplaintiffs were barred from presenting evidence of defective grill after the plaintiff's insurancecompany misplaced portions of the grill); American Family, 223 Ill. App. 3d at 627-28, 585N.E.2d at 1118-19 (where the plaintiffs were barred from presenting evidence of defect in carafter plaintiffs turned over title of the car to their insurance company and insurance companyarranged to have the car destroyed).

Plaintiff attempts to support his contention that spoilation resulting from inaction wouldnot warrant a sanction by relying on the case of Peterson v. Ress Enterprises, Inc., 292 Ill. App.3d 566, 686 N.E.2d 631 (1997). However, we find Peterson to be inapposite and, if anything, tonegate plaintiff's contention. In Peterson, the plaintiff, an Illinois resident, was in an autoaccident in Arkansas and filed suit alleging that the accident resulted from a defective tire. Thecar and tire were transported to a police-accredited car pound in Arkansas and the allegedlydefective tire was stolen or misplaced from the pound prior to trial. The defendant alleged onappeal that plaintiff should have been sanctioned for spoilation of evidence because he breachedhis duty to preserve the defective tire. We concluded that sanctions were inappropriate becausethe plaintiff diligently tried to preserve the tire, the tire was not lost as a result of the plaintiff'sunreasonable failure to take affirmative action to preserve it, and the plaintiff had no reason topresume that the evidence would be destroyed. See Peterson, 292 Ill. App. 3d at 580, 686 N.E.2dat 641. In this case, however, we cannot say that plaintiff made a "diligent" attempt to preservethe Escort or that the Escort was destroyed through no fault of plaintiff. On the contrary, plaintiffwas notified by letter that the Escort faced destruction and made no effort to preserve the vehicle,even though the vehicle was in the nearby vicinity and plaintiff possessed the authority topreserve it. Accordingly, we conclude that plaintiff breached his duty to preserve the Escort andthat his duty was not negated by the fact that Escort was destroyed by someone other thanplaintiff.

Plaintiff next asserts that he should not have been sanctioned for failure to preserve theEscort because he notified defendant of the Escort's impending destruction and defendant failedto take action to inspect or preserve the vehicle. Citing to the Fourth Circuit's decision inSilvestri, plaintiff concedes that he did, in fact, have a duty to notify defendant that the Escortwas going to be destroyed. In Silvestri, the court stated that "[i]f a party cannot fulfill this duty topreserve [evidence] because he does not own or control the evidence, he still has an obligation togive the opposing party notice of access to the evidence or of the possible destruction of theevidence if the party anticipates litigation involving that evidence." Silvestri, 271 F.3d at 591. Recognizing this duty, plaintiff maintains that his July 26, 2000, letter to defendant served asnotice of the Escort's pending destruction, and therefore, sanctions against him wereinappropriate because he complied with the duty to notify.

First, we note that Silvestri does not exonerate a party who actually controls the evidencefrom a duty to preserve by merely passing notice on to the defendant, but only addresses the dutywith respect to someone who does not own or control the evidence. More overridingly, as wepreviously noted, a question exists as to whether the July 26, 2000, letter, which plaintiff assertswas sufficient notice to defendant, was ever sent by plaintiff. Defendant asserts in its brief that itnever received the July 26, 2000, letter, and the record demonstrates that the letter was not madepart of plaintiff's discovery materials until after defendant filed its motion to bar evidence of theEscort. Moreover, the record demonstrates that plaintiff sent at least two letters to defendantafter July 26, 2000, which represented that the Escort had not been destroyed and was still at theautomotive pound. Notably, those letters, dated October 13, 2000, and May 8, 2001, indicated that the Escort was at a pound located at 10430 Oda Street and 101st and Oda, respectively. However, the facts show that the car was held at the automotive pound located at 10301 SouthDoty Avenue, and there is no evidence in the record that the car was removed from that pounduntil August 14, 2000, when it was taken to be destroyed. For these reasons, as well as those setforth above, we conclude that the trial court did not err in barring evidence of the Escort as adiscovery sanction for plaintiff's spoilation of evidence.

Plaintiff nevertheless contends that the trial court erred in barring evidence of the Escortbecause he arranged to have his father photograph the car prior to its destruction. This argumenthas also been previously considered and rejected by this court. In American Family, theplaintiff's home was severely damaged by a fire that was caused by the plaintiff's car. Aninvestigator for the plaintiff's homeowner's insurance carrier photographed the car and removed awire that he believed caused the fire. The plaintiffs then transferred title of the car to theirautomotive insurer and the car was destroyed several months later. The plaintiffs subsequentlyfiled suit against the defendant, and the defendant responded with a motion to bar evidence basedon the destruction of the car, which was granted by the trial court. On appeal, the plaintiffsargued that their evidence should not have been barred because photographs and two wires fromthe car had not been destroyed. American Family, 223 Ill. App. 3d at 625-26, 585 N.E.2d at1117.

We concluded that the plaintiff's argument was "without merit" because, although thephotographs and the wires were available, "defendants were unable to inspect, as plaintiffs'experts were, the most important evidence," namely, the car itself. American Family, 223 Ill.App. 3d at 627, 585 N.E.2d at 1118. We concluded that the physical evidence destroyed with thevehicle would have been "far more probative" in determining the cause of the fire than thephotographs and wire, and that the "physical object itself in the precise condition immediatelyafter an accident may be far more instructive and persuasive to a jury than oral or photographdescriptions." American Family, 223 Ill. App. 3d at 627, 585 N.E.2d at 1118. We see no reasonto depart from this reasoning here. In this case, plaintiff failed to retrieve the Escort from theautomotive pound even though he was advised that the car would be destroyed if not claimed. Plaintiff allowed this destruction to occur even though he knew, or should have known, thatdefendant would want to inspect the vehicle and that experts on both his and defendant's behalfwould need to inspect the vehicle in order to determine whether the air bag was actuallydefective. As we stated in American Family, the defective product in the condition after anaccident is far more instructive and probative than photographs, especially where, as here, thephotographs were taken by a nonexpert who presumably could not be certain about what items inthe car would aid an expert in determining whether a defect existed.

Finally, plaintiff contends that the trial court erred in granting defendant's motion forsummary judgment. In support of this assertion, plaintiff argues that he can establish a primafacie case of product liability based on the inference of a defect established through the report ofDr. Daubert, his expert, and other circumstantial evidence such as the photographs taken prior tothe destruction of the Escort. Defendant counters that the report of plaintiff's expert is notproperly before this court and should not be a part of our consideration on appeal because thereport is unsworn and was not made under oath as an affidavit, and therefore, is in violation ofSupreme Court Rule 191. 145 Ill. 2d R. 191. While we agree with defendant that Dr. Daubert'sreport is not submitted as an affidavit signed and sworn under oath, we note that there is noevidence in the record demonstrating that defendant objected to the admission of Dr. Daubert'sreport in the trial court. It is well-settled that the failure to object at trial results in waiver of anissue on appeal. See Regency Savings Bank v. Chavis, 333 Ill. App. 3d 865, 869, 776 N.E.2d876, 880 (2002). Accordingly, we conclude that defendant's claims with respect to Dr. Daubert'sreport are barred from further review by the waiver doctrine.

Regardless of the admissibility of Dr. Daubert's report on appeal, the fact remains thatplaintiff's argument with respect to summary judgment would only have a chance of prevailing ifthe sanction in this case was improper. However, having concluded that the sanction wasappropriate, we find that plaintiff's claim lacks merit. We find support for this conclusion inAmerican Family, a case previously discussed herein. In American Family, as in the case at bar,this court concluded that the trial court properly barred the plaintiffs from presenting evidenceregarding their allegedly defective vehicle after plaintiffs allowed the vehicle to be destroyedprior to trial and before the defendant had an opportunity to inspect or examine it. AmericanFamily, 223 Ill. App. 3d at 627-28, 585 N.E.2d at 1118. The plaintiffs there, as here,nevertheless argued that summary judgment was improper because they could still make out aprima facie case of product liability based on the inference of a defect. The American Familycourt held that the plaintiffs' assertion lacked merit because:

"Any cause of action for product liability based on an inference must still show that the damage resulted from a condition of the product. After all evidence of the condition of the car is barred, no evidence remains upon which the trial court could find product liability or negligence. Therefore, the trial court did not err in granting defendants' motion for summary judgment." American Family, 223 Ill. App. 3d at 629, 585 N.E.2d at 1120.

We agree. In this case, the trial court barred plaintiff's evidence concerning the Escort, andtherefore, the photographs, along with Dr. Daubert's report, were likewise inadmissible. Withoutany evidence regarding the alleged defect in the car, plaintiff was unable to present a factual basisto the court that would entitle him to judgment. Accordingly, we conclude that summaryjudgment was proper in this case.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

McNULTY and O'MALLEY JJ., concur.

1. The letter incorrectly spelled plaintiff's last name as "Kabilis."