Employer Beware: The Duty to Preserve Evidence in Illinois

When an employee is involved in a work-related accident, especially one involving a machine, tool or other mechanical device, employers can be confronted with difficult questions regarding preservation of evidence. Employers, and their insurers, should have a good understanding of the importance of preserving evidence and a plan in place to ensure proper action is taken when an accident happens.

An employer’s proper preservation of evidence serves at least two important purposes. First, it protects the employer from potential liability for spoliation of evidence. This includes third-party actions against the employer as well as a potential direct action by an employee against her employer. In Schusse v. Pace Suburban Bus, 334 Ill.App.3d 960, (1st Dist. 2002), the appellate court held that an employee’s claim for negligent spoliation against his employer was not barred by the exclusive remedy provision of the Illinois Workers’ Compensation Act. Second, preserving evidence protects the employer’s ability to pursue subrogation against other potential at-fault parties, such as product manufacturers, installers and vendors.

When does an employer need to preserve evidence? In order for a duty to preserve evidence to exist, the Illinois Supreme Court has set forth a two-prong test. First, there must be an agreement, contract, statute, special circumstance, or voluntary undertaking which gives rise to a duty to preserve evidence. Second, there must be a showing that a reasonable person in the employer’s position should have foreseen that the evidence was material to a potential civil action. If both prongs of the test are not satisfied, there is no duty to preserve evidence.

Illinois courts have not clearly defined what constitutes a “special circumstance” giving rise to a duty to preserve evidence. In Martin v. Keeley & Sons, Inc., 2012 IL 113270, the Illinois Supreme Court, noting the lack of any precise definition, suggested that a request to preserve evidence is sufficient to create a “special circumstance,” although the court also held that an employer-employee relationship alone is not. Given the relative ambiguity and uncertainty of what may or may not be a “special circumstance,” not preserving evidence can be a risky proposition in Illinois.

Where a duty to preserve evidence exists, failure to observe it subjects an employer to potential liability for spoliation of evidence. Spoliation of evidence is a form of negligence and is a recognized cause of action in Illinois. In order to prevail on a spoliation claim, a plaintiff must prove: 1. the defendant breached the duty to preserve evidence by losing or destroying evidence; 2. the loss or destruction of evidence was the proximate cause of the plaintiff’s inability to prove an underlying lawsuit; and 3. as a result the plaintiff sustained damages. Martin, 2012 IL 113270.