Rule 23 Order filed
April 27, 2001;
Motion to publish granted
June 7, 2001

JUSTICE RARICK delivered the opinion of the court:

The third-party plaintiff, O'Brien Tire and Battery Service Center, Inc. (O'Brien), filedan action in the circuit court of Madison County against the third-party defendants, DaveMacios, doing business as Sugarloaf Landscape Nursery, and Country Mutual InsuranceCompany (Country Mutual), seeking damages for negligent spoliation of evidence. The trialcourt granted Macios' motion to dismiss and granted Country Mutual's motion for judgmenton the pleadings. We reverse and remand the cause for further proceedings.

According to O'Brien's complaint, on September 27, 1994, Thomas Jones was killedwhen the left outer rear wheel of a truck owned by Macios separated from the vehicle andstruck Jones's car. That same day, Tim Finley, a forensic engineer retained by CountryMutual, inspected the Macios vehicle and issued a report noting that the tire had beenpreviously replaced by O'Brien. The report concluded that the left rear wheels were loosebecause the installer failed to properly tighten the lug nuts. In a letter dated October 12,1994, Country Mutual advised Macios to preserve the wheel assembly for evidentiarypurposes.

On February 28, 1995, Deborah Jones filed suit against Macios and Country Mutual.The case was settled on October 27, 1995. On August 30, 1996, Jones filed a complaintagainst O'Brien. During discovery, it was revealed that the wheel assembly had been takento Patterson Tire Service by Macios and subsequently discarded. In its answer to the Jonescomplaint, O'Brien advanced as an affirmative defense the argument that Macios haddiscarded the wheel assembly before it could be examined by O'Brien and that Maciosshould have reasonably foreseen that the wheel assembly was material to a potential civilaction arising from the incident.

O'Brien subsequently filed a two-count third-party complaint against Macios andCountry Mutual, alleging negligent spoliation of evidence. Count I was directed at Macios,and count II was directed at Country Mutual. Count I of the complaint alleged that thewheel assembly was discarded or disposed of by Macios before it was examined by or onbehalf of O'Brien, that Macios knew or should have known that the wheel assembly wasmaterial to a potential civil action arising from the accident, that Macios had a duty to retainthis evidence, and that because of Macios' action, O'Brien was prejudiced in its efforts todefend itself because such evidence was unavailable for forensic analysis. On September10, 1998, the trial court granted Jones's motion to sever the third-party complaint. OnOctober 29, 1998, the trial court dismissed Jones's action against O'Brien pursuant to thesettlement and stipulation of the parties.

On December 23, 1998, Macios filed a two-count motion to dismiss O'Brien's third-party complaint. Count I was brought pursuant to sections 2-615 of the Code of CivilProcedure (Code) (735 ILCS 5/2-615 (West 1996)) and argued that O'Brien failed to allegea duty on the part of Macios to preserve the wheel assembly. Count II was brought pursuantto section 2-619 of the Code (735 ILCS 5/2-619 (West 1996)) and argued that O'Brien'sclaim for spoliation of evidence was waived by virtue of the settlement of the Jones action. On April 29, 1998, the trial court granted the motion and dismissed O'Brien's action, findingthat there was no duty owed by Macios to preserve the wheel assembly and that O'Brien hadnot sufficiently alleged the existence of any duty. The trial court did not address Macios'waiver argument. Country Mutual subsequently filed a motion pursuant to section 2-615of the Code, seeking judgment on the pleadings. Country Mutual argued that the allegationscontained in count II of O'Brien's complaint were substantially the same as those directedagainst Macios and that the trial court's ruling on Macios' motion to dismiss should be giventhe same force and effect as to Country Mutual. The trial court agreed and granted themotion.

On appeal, O'Brien argues that the trial court erred in ruling that Macios and CountryMutual had no duty to preserve the wheel assembly, because our supreme court held in Boydv. Travelers Insurance Co., 166 Ill. 2d 188, 652 N.E.2d 267 (1995), that a claim forspoliation of evidence could be stated under existing negligence law.

When ruling on a motion to dismiss pursuant to section 2-615, the trial court mustaccept all well-pleaded facts as true and interpret all pleadings and supporting documentsin a light most favorable to the nonmoving party. Jackson v. Michael Reese Hospital &Medical Center, 294 Ill. App. 3d 1, 689 N.E.2d 205 (1997). The motion should be grantedonly if the plaintiff can prove no set of facts that would support a cause of action on appeal. Beck v. Budget Rent-A-Car, 283 Ill. App. 3d 541, 669 N.E.2d 1335 (1996). The trial court'sruling is subject to de novo review. Joseph v. Chicago Transit Authority, 306 Ill. App. 3d927, 715 N.E.2d 733 (1999). With these standards in mind, we turn to the merits ofO'Brien's arguments.

In Boyd, Tommie Boyd was injured when a propane heater he was using during thecourse of his employment exploded. Boyd filed a workers' compensation claim against hisemployer, Superior Foods, and Travelers Insurance Company (Travelers), Superior Foods'workers' compensation insurance carrier. Travelers took possession of the heater in orderto investigate Boyd's workers' compensation claim. When Boyd subsequently requested thatthe heater be returned to him, Travelers was unable to locate it. Boyd and his wife broughtsuit against Travelers and alleged negligent and intentional spoliation of evidence. Specifically, the Boyds alleged that Travelers' loss of the heater irrevocably prejudiced andadversely affected their product liability action against the heater's manufacturer. The trialcourt granted Travelers' motion to dismiss, finding that until the Boyds lost their productsliability action against the manufacturer, they could not allege any actual injury and thus theycould not state a cause of action. Boyd, 166 Ill. 2d at 192, 652 N.E.2d at 269.

On appeal, our supreme court held that while spoliation of evidence was notrecognized as an independent tort, an action for negligence based upon spoliation ofevidence could be stated under existing negligence law. After noting that there is no generalduty to preserve evidence, our supreme court stated that such a duty could arise through anagreement, a contract, a statute, or another special circumstance. Moreover, the court noted, a defendant may voluntarily assume a duty by affirmative conduct. The court held that inany of these instances, 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. Our supreme court held that taking possession of theheater while knowing that it was evidence relevant to future litigation was sufficient tocreate a duty on the part of Travelers to preserve the heater. Boyd, 166 Ill. 2d at 195, 652N.E.2d at 271.

With respect to the elements of causation and damages, our supreme court rejectedTravelers' position that the Boyds first had to lose their suit against the heater's manufacturerbefore they could properly allege these elements. The court held that all that was requiredwas that the plaintiffs allege sufficient facts to support a claim that the loss or destructionof evidence caused the plaintiffs to be unable to prove an underlying lawsuit. Our supremecourt concluded that the Boyds' complaint was sufficient to state a cause of action fornegligence based upon spoliation of evidence, and it remanded the cause for a trial. Boyd,166 Ill. 2d at 198, 652 N.E.2d at 272.

In the present case, O'Brien maintains that a special circumstance exists sufficient toimpose upon both Macios and Country Mutual a duty to preserve the wheel assembly. Withrespect to Macios, O'Brien contends that he owned the truck and was in possession of thewheel assembly after the accident. O'Brien argues that a reasonable person in Macios'position would have recognized that the wheel assembly was material to a potential civilaction arising from the incident. We agree.

In its third-party complaint, O'Brien alleged that Macios was in possession of thewheel assembly and that he knew or should have known that the wheel assembly wasmaterial to a potential civil action arising from the incident. Under Boyd, this is sufficientto allege a duty to preserve the wheel assembly.

Macios argues that there is no duty to preserve evidence where there is no "specialrelationship" between the plaintiff and defendant, created by contract, statute, or othercircumstance. Macios contends that in Boyd, any third-party litigation against themanufacturer of the heater would have given rise to a lien in favor of Travelers on theproceeds of such third-party case. Thus, Travelers should have been aware of the possibilityof third-party litigation, and such awareness supported the existence of special circumstancesgiving rise to a duty to preserve evidence.

Macios' argument that Travelers' statutory right to a lien would have made it awareof the possibility of third-party litigation is correct, but not relevant. In its analysis, oursupreme court did not discuss the basis for Travelers' knowledge that the heater would bematerial to any potential civil litigation, nor did it base its holding thereon. Moreimportantly, the Boyds' complaint did not allege that Travelers' right to a lien gave rise toits knowledge that the heater would be material to any potential civil litigation. A plaintiffin a negligence case based upon spoliation of evidence need only allege that a reasonableperson in the defendant's position should have foreseen that the evidence in question wasmaterial to a potential civil action. There is no requirement that the plaintiff allege theexistence of any "special relationship" which would give rise to that knowledge. Ultimately,the plaintiff must prove that the defendant should have foreseen that the evidence inquestion was material to a potential civil action and that the existence of a "specialrelationship" between the plaintiff and the defendant would help establish that foreseeability,but the existence of a "special relationship" is not necessary to give rise to a duty to preserveevidence. Macios is attempting to read into Boyd a requirement that is not there.

Macios also argues that there is no duty to preserve evidence where there is nopending litigation between the parties or any order of protection in place with respect to theevidence at issue. Macios contends that Jones's suit against O'Brien was brought nearly 10months after her case against Macios was settled. He maintains that there was norequirement in the settlement agreement that the wheel assembly be turned over to Jones orotherwise be preserved so that Jones could use it in a suit against O'Brien.

Again, Macios is attempting to read into Boyd a requirement that is not there. Although there was a pending product liability action in Boyd, the existence of such pendinglitigation was not a factor in the court's determination that the Boyds had sufficiently allegedthe existence of a duty to preserve evidence. In fact, the product liability claim against themanufacturer was filed in the same complaint as the negligent-spoliation-of-evidence counts. Thus, there was no pending litigation at the time the heater was destroyed or lost. All thatwas required in Boyd to give rise to a duty to preserve evidence was that Travelers hadpossession of the heater and that it knew or should have known that the heater was evidencerelevant to future litigation. As with a "special relationship," the existence of pendinglitigation would certainly help prove that a defendant should have foreseen that the evidencein question was material, but again, it is not required to establish the existence of the dutyto preserve evidence. Moreover, to hold that a duty to preserve evidence does not arise untilan action was filed would encourage the destruction of evidence. We find that theallegations contained in count I of O'Brien's third-party complaint were sufficient to allegea duty on the part of Macios to preserve the wheel assembly.

The other elements of a negligence action are breach of duty, causation, and damages. In its third-party complaint, O'Brien specifically alleges that by discarding the wheelassembly, Macios breached his duty to preserve evidence.

With respect to causation, our supreme court held in Boyd that to plead causation, aplaintiff in a negligence action based upon spoliation of evidence must allege sufficient factsto support a claim that the loss or destruction of the evidence in question caused the plaintiffto be unable to prove an underlying lawsuit. The Boyds' complaint alleged that Travelerslost the heater and failed to test it to determine the cause of the explosion, thereby deprivingthem of a key piece of evidence against the manufacturer. The Boyds further alleged thatas a result, no expert could testify without doubt whether the heater was defective ordangerously designed. Our supreme court held that these allegations were sufficient tosupport the theory that Travelers' loss of the heater caused the plaintiffs to be unable toprove their suit against the manufacturer. Boyd, 166 Ill. 2d at 197, 652 N.E.2d at 271.

In the present case, O'Brien alleges that because of Macios' breach of his duty topreserve the wheel assembly, O'Brien has been prejudiced in its efforts to defend itself inthe Jones action because the wheel assembly is unavailable for forensic analysis in anattempt to assess the physical evidence against the allegations of the complaint. O'Brienfurther alleges that because of the loss or destruction of the wheel assembly, it is precludedfrom developing any forensic testimony based upon an inspection of the wheel assembly tosuccessfully defend itself from Jones's charges and it is unable to establish whether otherdefenses to Jones's action exist. We find these allegations sufficient to allege the elementof causation.

The final element of a negligence action is actual damages. In Boyd, our supremecourt held that a plaintiff is required to allege that the defendant's loss or destruction ofevidence caused the plaintiff to be unable to prove an otherwise valid, underlying cause ofaction. In Boyd, the plaintiffs' complaint alleged that Boyd sustained serious personalinjuries when the heater exploded, and it also alleged the other elements of a product liabilityaction and a nexus between Travelers' loss of the heater and the plaintiffs' inability to provethe underlying action. Our supreme court found this sufficient to allege actual damages. Boyd, 166 Ill. 2d at 198, 652 N.E.2d at 272.

In the present case, O'Brien alleges that it is the defendant in a wrongful death suitwherein the death is attributed to O'Brien's negligence in mounting a wheel to Macios' truck,that Macios discarded or destroyed the wheel assembly, and that as a result, O'Brien's abilityto defend itself has been impaired. Following Boyd, we find that O'Brien has sufficientlyalleged actual damages resulting from Macios' breach of his duty to preserve evidence.

Macios also argues that O'Brien waived its spoliation-of-evidence claim by virtue ofits settlement with Jones. Although the trial court did not rule on this aspect of his motionto dismiss, Macios contends that this court may nevertheless affirm on this basis.

We previously addressed this issue in Stinnes Corp. v. Kerr-McGee Coal Corp., 309Ill. App. 3d 707, 722 N.E.2d. 1167 (1999), a case very essentially identical to the one atbar. In that case a third-party complaint was filed by Stinnes Corporation (Stinnes) againstKerr-McGee Coal Corporation (Kerr-McGee) alleging negligent spoliation of evidence. Anunderlying products liability action was brought by Robert Wilkas and James Benge againstStinnes's subsidiary, SRE Carlsbad, Inc., for personal injuries arising out of a coal miningvehicle accident that occurred in a coal mine owned by Wilkas's and Benge's employer,Kerr-McGee. Stinnes reached a settlement with Wilkas and Benge, and the suit wasdismissed. Kerr-McGee filed a motion to dismiss, arguing that it did not owe a duty toStinnes to preserve evidence. The trial court granted the motion to dismiss and we reversed. Relying on Boyd, this court held that the allegations of Stinnes's complaint sufficiently stateda cause of action for negligence based upon spoliation of evidence. As in the present case,Kerr-McGee argued that Stinnes's settlement with Wilkas and Benge resulted in a waiverof its spoliation-of-evidence claim. We rejected this argument, finding that Stinnes's liabilityto Wilkas and Benge and Kerr-McGee's potential liability for negligent spoliation ofevidence arose from two different injuries. We likewise reject Macios' similar argument inthe present case.

Count II of O'Brien's third-party complaint was directed against Country Mutual andalso alleged negligence based upon spoliation of evidence. The allegations with respect tothe existence of a duty to preserve evidence are essentially the same as those directed atMacios: that Country Mutual discarded the wheel assembly, that Country Mutual shouldhave known that the wheel assembly was material to a potential civil action arising from theincident, and that Country Mutual had a duty to either retain the evidence or instruct itsinsured, Macios, to do so. The allegations with respect to breach, causation, and damagesare identical to those contained in count I: that as a result of the loss of the wheel assembly,O'Brien's ability to defend itself against the Jones suit has been impaired. Following thesame reasoning above, we conclude that the trial court erred in entering judgment on thepleadings in favor of Country Mutual.

For the foregoing reasons, the judgment of the circuit court of Madison County isreversed, and the cause is remanded for further proceedings not inconsistent with thisopinion.

Reversed; cause remanded.

CHAPMAN, P.J., and MAAG, J., concur.