JUSTICE GOLDENHERSH delivered the opinion of the court:

The plaintiff, James E. Dardeen, appeals from an order of the circuit court of WabashCounty entering a summary judgment in favor of the defendant, State Farm Fire & CasualtyCompany (State Farm), on the plaintiff's claim for negligent spoliation of evidence. Wereverse and remand for further proceedings.

According to the plaintiff's complaint, on September 1, 1999, he sustained personalinjuries while delivering newspapers with his daughter when he fell in a hole on a bricksidewalk. The sidewalk was located in Mt. Carmel on the property of Alice Kuehling. Theplaintiff landed on his right elbow. The plaintiff and his daughter described the hole inwhich he fell as approximately 12 inches wide and 4 to 6 inches deep, "the size of a dinnerplate." Because it was not yet light at the time the plaintiff fell, the plaintiff bent down closeto the hole to get a better look. The plaintiff also returned to the accident site that eveningwith his neighbor, Harry. The plaintiff said the brick sidewalk looked the same as it didearlier in the day when he fell.

The plaintiff's daughter called Alice Kuehling the day of the accident, notified her ofthe accident, and requested the name of her insurance company. Kuehling's property wasinsured by State Farm. The plaintiff also told Kuehling about his fall when he returned laterin the evening with his neighbor. Kuehling's daughter and son-in-law were present at theevening meeting and saw the condition of the area in which the plaintiff fell.

On the day of the accident, Kuehling reported the plaintiff's fall to her State Farminsurance agent, Ronald Couch. Kuehling told Couch that the bricks were "cocked up" inthe area where the plaintiff had fallen and she asked Couch if she could remove those bricksso that no one else would get hurt. Kuehling said some of the bricks were raised more thanothers, causing the sidewalk to be uneven. According to Kuehling, Couch told her she couldremove the bricks. Kuehling does not remember exactly when she began removing thebricks, but she said it was less than a week after the plaintiff fell. Kuehling removedsomewhere between 25 and 50 bricks. Prior to removing the bricks, Kuehling did notphotograph or videotape the area of the brick sidewalk where the fall occurred. Likewise,the plaintiff did not photograph the accident site, although the plaintiff's wife did photographhis injuries in contemplation of litigation.

The plaintiff returned to Kuehling's property about a month after he fell. He wasaccompanied by David Satz, Kuehling's neighbor. The plaintiff noticed that bricks had beenmoved from the area in which he fell. Four photographs of the area in question were takenby an unknown photographer on September 7, 1999. These photographs are in the record. The photographs show that the bricks had already been removed six days after the plaintifffell. These photographs have a number written across them that appears to be an insuranceclaim number.

On August 1, 2000, the plaintiff filed a complaint against Kuehling and the City ofMt. Carmel for personal injuries he received as a result of the fall. The count against Mt.Carmel was later voluntarily dismissed by the plaintiff. The plaintiff alleged that his injurywas caused by Kuehling's failure to repair the hole in the brick sidewalk and/or failure towarn others that the hole existed. Kuehling has defended the lawsuit by denying that a holeexisted.

On May 25, 2001, the plaintiff filed a motion for leave to file a second amendedcomplaint, which was granted by the court, to add counts against both Kuehling and StateFarm for negligent spoliation of evidence. The plaintiff alleged that Kuehling's bricksidewalk was material evidence in the personal injury suit and that State Farm had a duty topreserve the sidewalk when it became aware of the plaintiff's claim via its agent, RonaldCouch. The plaintiff further alleged that State Farm breached its duty when Couch, "actingwithin the course and scope of the agency," authorized Kuehling to remove the brickswithout first taking pictures or videotaping the area where he fell. He alleged that theremoval of the bricks changed the appearance of the accident site and destroyed materialevidence in his personal injury case against Kuehling.

On January 24, 2002, State Farm filed a motion for a summary judgment on count IVof the plaintiff's second amended complaint. Count IV alleged negligent spoliation ofevidence by State Farm. On April 30, 2002, the trial court granted State Farm's motion fora summary judgment. The plaintiff now appeals. Kuehling takes no part in this appeal, andtherefore, the counts against Kuehling remain.

The standard of review on a trial court's granting of a summary judgment is de novo. Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 390, 620 N.E.2d1073, 1077 (1993). Although the use of a summary judgment aids the expeditiousdisposition of a lawsuit, it is a drastic means of disposing of litigation. Purtill v. Hess, 111Ill. 2d 229, 240, 489 N.E.2d 867, 871 (1986). Therefore, the reviewing court must examinethe affidavits, pleadings, admissions, and depositions on file and construe the evidencestrictly against the moving party. In re Estate of Hoover, 155 Ill. 2d 402, 410-11, 615N.E.2d 736, 739-40 (1993). A summary judgment is only appropriate if there is no genuineissue of material fact and the moving party is entitled to a judgment as a matter of law. Crum& Forster Managers Corp., 156 Ill. 2d at 390-91, 620 N.E.2d at 1077. With this in mind,we examine the parties' arguments on appeal.

The plaintiff argues there is evidence that State Farm should have foreseen thatKuehling's brick sidewalk was material to a potential civil action and that the destruction ofthe sidewalk could mean that the plaintiff would be unable to prove his personal injurylawsuit. The plaintiff insists that the summary judgment should be reversed and the causeremanded for a jury trial on all the issues. State Farm replies that it did not owe a duty to theplaintiff to preserve the evidence and that even assuming arguendo that State Farm owed theplaintiff such a duty, the plaintiff cannot prove an injury proximately caused by the breach.

The Illinois Supreme Court set forth the elements necessary for a spoliation ofevidence claim in Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 652 N.E.2d 267 (1995). Boyd declined to recognize an independent tort for negligent spoliation of evidence but heldthat an action for negligent spoliation of evidence can be pleaded under ordinary negligencetheories. Boyd, 166 Ill. 2d at 192-93, 652 N.E.2d at 269-70. Accordingly, in a spoliationof evidence case, the plaintiff must plead the existence of a duty, a breach of that duty, aninjury proximately caused by the breach, and damages. Boyd, 166 Ill. 2d at 194-95, 652N.E.2d at 270.

In general, there is no duty to preserve evidence; however, a duty may arise throughan agreement, a contract, or other special circumstances such as the assumption of a duty byaffirmative conduct. Boyd, 166 Ill. 2d at 195, 652 N.E.2d at 270-71. If one of thesecircumstances exists, then a defendant "owes a duty of due care to preserve evidence if areasonable person in the defendant's position should have foreseen that the evidence wasmaterial to a potential civil action." Boyd, 166 Ill. 2d at 195, 652 N.E.2d at 271. In addition,a plaintiff must also allege facts sufficient to support a claim that the loss or destruction ofthe evidence means that the plaintiff is unable to prove the underlying lawsuit. Boyd, 166Ill. 2d at 196, 652 N.E.2d at 271.

In Boyd, the plaintiff was injured while working for his employer when a propaneheater he was using to help him keep warm exploded. The heater was the plaintiff's personalproperty. The plaintiff filed a workers' compensation claim against his employer and itsworkers' compensation insurance company. The insurance company took possession of theheater in order to investigate the plaintiff's workers' compensation claim. When the plaintiffrequested that the heater be returned, the insurance company was unable to locate it. Theplaintiff, along with his wife, brought suit against the insurance company, alleging negligentand intentional spoliation of evidence. Boyd held that the insurance company assumed aduty to preserve evidence when it took possession of the heater knowing it was relevant tofuture litigation. Boyd, 166 Ill. 2d at 195, 652 N.E.2d at 271.

In addition to Boyd, the Illinois Supreme Court has specifically held that a potentiallitigant owes a duty "to take reasonable measures to preserve the integrity of relevant andmaterial evidence." Shimanovsky v. General Motors Corp., 181 Ill. 2d 112, 121, 692 N.E.2d286, 290 (1998). The Shimanovsky court pointed out that if a court is "unable to sanctiona party for the presuit destruction of evidence, a potential litigant could circumvent discoveryrules or escape liability simply by destroying the proof prior to the filing of a complaint." 181 Ill. 2d at 121, 692 N.E.2d at 290. The Shimanovsky court relied on Graves v. Daley, 172Ill. App. 3d 35, 526 N.E.2d 679 (1988).

In Graves, the plaintiffs' home was destroyed by a fire that, in the opinion of aninvestigator, was caused by a defect in the plaintiffs' furnace. Graves, 172 Ill. App. 3d at 37,526 N.E.2d at 680. On the advice of their insurance company, the plaintiffs disposed of allthe debris in their home before they filed a strict liability action against the furnacemanufacturer. Graves, 172 Ill. App. 3d at 37, 526 N.E.2d at 680-81. The trial court grantedthe furnace manufacturer's motion for sanctions and barred all evidence regarding thecondition of the furnace. The appellate court affirmed the sanction, reasoning that theplaintiffs knew or should have known the evidentiary importance of the allegedly defectivefurnace and were "not free to destroy crucial evidence simply because a court order was notissued to preserve the evidence." Graves, 172 Ill. App. 3d at 38, 526 N.E.2d at 681.

In the instant case, circumstances exist sufficient to impose a duty on State Farm topreserve evidence. State Farm had a contractual relationship with its insured, AliceKuehling. Kuehling called State Farm the same day the plaintiff fell on the sidewalk andasked whether or not she could remove some bricks so no one else would get hurt. RonaldCouch, a State Farm agent, replied that it would be okay for the plaintiff to remove thebricks. Couch did not recommend that Kuehling take pictures or videotape the sidewalk, nordid he offer to send an investigator to do so prior to the removal of the bricks.

Couch, as an agent for State Farm, was well aware that the sidewalk was material toany potential civil litigation resulting from the plaintiff's fall. Kuehling relied on her agent'sadvice before removing bricks. Crouch was not free to allow Kuehling to destroy thesidewalk. A crucial piece of evidence is now missing. As a result of State Farm's actions,neither its insured, Alice Kuehling, nor the plaintiff will be able to use this evidence in theongoing litigation, and their positions have, thereby, been impaired.

State Farm argues that it had no duty to preserve evidence because it never possessedor retained control over the evidence in question and never prevented the plaintiff or anyoneelse from inspecting the sidewalk in question. State Farm insists that the plaintiff isimproperly attempting to broaden the scope of a spoliation of evidence claim by imposingliability on a party who never had possession or control over the evidence in question. Insupport of its contention, State Farm cites Jones v. O'Brien Tire & Battery Service Center,Inc., 322 Ill. App. 3d 418, 752 N.E.2d 8 (2001).

In Jones, a tire separated from a landscaper's truck and killed the plaintiff's decedent. The plaintiff settled a claim with the landscaper and then sued the service center alleged tohave negligently attached the tire. Jones, 322 Ill. App. 3d at 419, 752 N.E.2d at 10. Theservice center filed a third-party complaint against the landscaper, alleging that he hadnegligently disposed of the tire assembly, thereby impairing the tire center's ability to defenditself. Jones, 322 Ill. App. 3d at 420, 752 N.E.2d at 10. While the landscaper's insurerrequested that he preserve the tire assembly, there was no allegation that the service centermade such a request. Jones, 322 Ill. App. 3d at 419, 752 N.E.2d at 10. A panel of this courtheld that the foreseeability of the need for the tire assembly as evidence, coupled withownership and possession after the accident, was a sufficient special circumstance toestablish the landscaper's duty to preserve the tire assembly for any potential party's benefit. Jones, 322 Ill. App. 3d at 423, 752 N.E.2d at 13.

Although possession of the evidence played a paramount role in the Jones court'sfinding of a duty to preserve evidence, Jones does not absolutely require that the defendanthave possession of the evidence before a duty to preserve evidence will be imposed. Here,State Farm did not have possession of the sidewalk but, instead, exercised control or had theopportunity to exercise control. It was reasonably foreseeable that the condition of thesidewalk at the time of the accident was a crucial issue. Without a doubt, this evidenceshould have been preserved. Interestingly, four pictures were taken six days after theaccident and bear what appears to be a claim number. Apparently, State Farm knew theimportance of the evidence.

State Farm also contends that because the plaintiff contemplated legal action as earlyas two days after the accident, took pictures of his injuries, and made at least two trips backto the accident site before the bricks were removed, State Farm owed no duty to the plaintiffto preserve evidence. However, we agree with the plaintiff that whether or not the plaintiffhad access to the sidewalk and/or contemplated legal action early on has no bearing on theissue of State Farm's duty. A defendant owes a duty of due care to preserve evidence "if areasonable person in the defendant's position should have foreseen that the evidence wasmaterial to a potential civil action." Boyd, 166 Ill. 2d at 195, 652 N.E.2d at 271. State Farmshould have foreseen that the condition of the sidewalk at the time the plaintiff fell wouldbe material and taken steps to preserve the evidence.

State Farm also contends that it did not authorize its insured, Alice Kuehling, toremove the bricks. We again point out that this matter comes before us as an appeal of asummary judgment in favor of State Farm. In order for a court to appropriately grant asummary judgment, there must be no genuine issue of material fact and the movant must beentitled to a judgment as a matter of law. It is basic law that the motion is to be strictlyconstrued against the movant. Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871. With this inmind and given State Farm's contention, we conclude that the trial court erred in determiningthere was no genuine issue of material fact. It is undisputed that Alice Kuehling called herState Farm agent the day of the accident and asked him if she could remove the bricks. According to Kuehling, the agent told her she could remove the bricks. On the other hand,State Farm claims it did not authorize Kuehling to remove the bricks. Accordingly, amaterial issue of fact remains that precludes the entry of a summary judgment in favor ofState Farm.

State Farm also asserts that it was simply complying with public policy if itencouraged Kuehling to destroy the brick sidewalk. We agree that in Illinois, public policyencourages improvements to enhance public safety (Herzog v. Lexington Township, 167 Ill.2d 288, 300, 657 N.E.2d 926, 932 (1995)); however, in Boyd, the Illinois Supreme Court alsodeclared that it is against public policy to destroy evidence. It is clear that both these policiescould have been advanced had State Farm simply directed Kuehling to photograph orvideotape the sidewalk prior to removing between 25 and 50 bricks. Moreover, as theplaintiff points out, the four pictures taken after the bricks were removed do not necessarilyshow an improvement in the condition of the sidewalk. It still appears uneven after theremoval of the bricks.

Finally, we find that the plaintiff alleged sufficient facts to show that the destructionof the brick sidewalk could cause him to be unable to prove his personal injury lawsuitagainst Alice Kuehling. Boyd specifically states that in order to proceed on a negligentspoliation of evidence claim, a plaintiff need not first lose the underlying personal injuryaction. Instead, it is enough that the plaintiff allege sufficient facts to support a claim thatthe destruction of the evidence caused the plaintiff to be unable to prove the underlying suit. Boyd, 166 Ill. 2d at 196, 652 N.E.2d at 271.

Here, the plaintiff's complaint alleges that the hole in the brick sidewalk was a keypiece of evidence in his personal injury lawsuit against Kuehling and that the failure tophotograph or videotape the area where the plaintiff fell before removing the bricks "hascaused the plaintiff to suffer an inability to prove his personal injury lawsuit against AliceKuehling." Kuehling denies that there was a hole in the sidewalk. We find that theplaintiff's allegations are sufficient to support the theory that the destruction of the bricksidewalk caused the plaintiff to be unable to prove his lawsuit against Kuehling.

In granting a summary judgment in favor of State Farm, the trial court stated thatbecause there were "at least eight persons who viewed the sidewalk and can testify about itscondition," there is ample evidence for the trier of fact to make a determination. What thetrial court failed to consider, however, was that the key piece of evidence has been destroyed. Even though several witnesses may be able to testify about the condition of the sidewalk, their descriptions of the scene differ. A photograph or videotape of the condition of thesidewalk at the time of the accident would be conclusive. Morever, we point out that theplaintiff is not the only person whose ability to prove his personal injury lawsuit has beenimpaired. State Farm's insured's ability to defend has likewise been impaired.

The plaintiff's complaint alleges, "[T]he removal of the bricks and/or Alice Kuehling'sfailure to photograph or videotape the area where plaintiff had fallen before removing thebricks has caused plaintiff to suffer an inability to prove his personal injury lawsuit againstAlice Kuehling." This allegation is consistent with Boyd's requirement that a plaintiff mustdemonstrate that, but for the loss or destruction of the evidence, the plaintiff had a reasonableprobability of succeeding in the underlying suit. Boyd, 166 Ill. 2d at 196-97 n.2, 652 N.E.2dat 271 n.2. Thus, we find that the trial court erred in granting a summary judgment in favorof State Farm.

For the reasons stated above, we reverse the trial court's entry of a summary judgmentin favor of State Farm, and we remand this cause to the trial court for further proceedingsconsistent with our opinion.

Reversed; cause remanded.

CHAPMAN, J., concurs.

Future applications of the rule stated in the majority opinion will result in muchadditional litigation, confusion, and problematic application.

Initially, I disagree with the majority opinion on the matter of State Farm Fire &Casualty Company's legal duty relative to the preservation of a sidewalk over which it hadno ability to exercise possession. Ordinary tort principles apply, and thus, in order to holdState Farm Fire & Casualty Company (State Farm) responsible for the preservation of itsinsured's sidewalk at this procedural state, there must be some issue of material fact relativeto the duty State Farm allegedly owes the injured claimant. While the preservation ofevidence likely to be utilized in a later litigious situation can be required in order to avoidliability for spoliation of evidence, the legal precedent on this issue is very different from thecase at bar. The cases cited in the majority opinion, and others, require the preservation ofan item of evidence when the purported spoliator defendant maintained possession of theitem. See, e.g., Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 652 N.E.2d 267 (1995)(involving the destruction/loss of a water heater required for testing, which was thereforecritical to the proof of liability in a products liability case); Jones v. O'Brien Tire & BatteryService Center, Inc., 322 Ill. App. 3d 418, 752 N.E.2d 8 (2001) (involving a wheel assemblyrequired for forensic testing/testimony in this wrongful-death case). The rationale behindthis theory, although perhaps not stated in the legal opinions, is that the item itself is criticalto the proof of the case. Photographic, other demonstrative, or testimonial evidence aboutthe lost item in question simply would not suffice. These types of items are critical to theproof of a case because they are needed for testing to actually prove up a defect or otherpieces of the liability puzzle. A sidewalk-hole intact-is not such an item of evidence. Thereare many other ways to establish liability in this case.

Much is made of the factual issue of whether State Farm advised Alice Kuehling thatit was okay to dismantle the apparently dangerous sidewalk. In my opinion, that perceivedissue is irrelevant. Even if we view the evidence in a light most favorable to James E.Dardeen and assume that State Farm did tell Alice Kuehling that there was no problem indismantling the sidewalk, that would not change the issue of liability. The sidewalk at issuewas owned by either Alice Kuehling or the City of Mt. Carmel. State Farm had noownership interest in the sidewalk. State Farm had no possessory interest in the sidewalk. Contrary to the majority's opinion, I believe that the possession of the item allegedlyspoliated is critical to a finding of negligence. At a minimum, if the alleged spoliator did notphysically possess the item, then the spoliator must have had the ability to control the entitywho did possess the item. At its essence, spoliation involves an ability to affect the outcomeof the spoliated item's existence. Those types of situations simply did not exist in this case.

Generally speaking, there is no duty to preserve evidence. Boyd, 166 Ill. 2d at 195,652 N.E.2d at 270. Exceptions to the rule arise through agreement, contract, statute,voluntary affirmative conduct, or other special circumstances. Boyd, 166 Ill. 2d at 195, 652N.E.2d at 270-71. In this case, there is no statute requiring State Farm to preserve a sidewalkit apparently insures. There is no agreement or contract with James E. Dardeen to preservethe sidewalk in its decrepit state. State Farm did not volunteer to preserve the sidewalk. Furthermore, no special circumstance was alleged to require State Farm's preservation of thesidewalk. I do not find that a factual issue on the matter of duty existed.

Finally, I take issue with the majority's opinion on the matter of James E. Dardeen'sability to prove up his case. The majority states, "[W]e find that the plaintiff allegedsufficient facts to show that the destruction of the brick sidewalk could cause him to beunable to prove his personal injury lawsuit against Alice Kuehling." Slip op. at 9. As thetrial court pointed out, there were eight witnesses prepared to testify about thishole-including the homeowner, Alice Kuehling. There was evidence that Alice Kuehlingfelt that the hole was so dangerous that she altered the state of the sidewalk to minimize thehole, thereby protecting future uses of the sidewalk.

The majority's statement that photographic evidence of this hole would have been"conclusive proof" fails to take into account the numerous ways in which a photographercould capture an image of the hole in question. If State Farm had taken a Polaroidphotograph of questionable quality, would that have sufficed? Or would State Farm still facea spoliation claim because it "purposefully" took a bad photograph of the scene of theaccident? What would happen if State Farm took an aerial photograph of the hole or aground-level photograph of the hole in an effort to minimize the appearance of the hole? Would those photographs have sufficed to preserve the evidence?

I raise these rhetorical questions because of what I anticipate as a problem with theapplication of the majority's opinion. Theorizing about other possible premises liabilitycases reveals the problems inherent in the application of the majority's rule. In order to avoida later-alleged spoliation claim, will grocery stores and restaurants now be required to installvideo cameras or otherwise photographically document any spilled ice tea or catsup, orgrapes hazardously lying on the store's floor, in the event of a slip and fall? Furthermore, I am left to wonder: how long is an individual or company required to preserve the evidence? Is two years (and longer in the case of a minor or incapacitated adult) sufficient? I do notbelieve that the Illinois Supreme Court's recognition of negligent spoliation claims wasintended to require the preservation of evidence in all cases of injury or contractual damagewithout regard to the quality of the evidence involved.

In light of the ample evidence relative to the size and depth of the hole in question andthe admission on the part of the homeowner, I believe that the preservation of the precisesidewalk hole was not necessary to prove the plaintiff's claim against Alice Kuehling.

Additionally, I do not believe that property owners and their insurers should berequired to preserve an apparently dangerous premises condition in its dangerous statefollowing a premises liability event.

For the reasons stated, I respectfully dissent.