thank you may please the court my name is debbie champion and i am here today along with russell scott on behalf of keeling and sons incorporated mr scott and i request this court to a foot from the ruling of the trial court judge o'malley in that he correctly applied the rule of law of the state of illinois that a party generally does not have a duty to preserve evidence as mr scott will further explain the fifth district court of appeals has completely changed the law on this issue by imposing on keeley a contractor for i dot the duty to protect property which didn't even belong to them in violation of i gotz request that they get rid of the steel beam that had fallen from the bridge in addition keeling's actions in this case do not constitute a voluntary undertaking to preserve evidence and the proper application of this court's rule of law  set forth in the boy case would have reached all fit and should have resulted in a judgment in keeley's favor consistent with what judge o'malley did in this case keeley did not voluntarily undertake to preserve this being the court will recall that this being fell from a bridge over a creek that keeley was in the process of building four i'd thought three or four workers were standing on the beam it were all that fell into the stream below under this court's narrow and limited circumstances that the court set forth in the boy case this core indicated that there might be very specific circumstances under which someone might be liable on a spoiler he ation cloying to preserve evidence in the court step those fourth they're things like if you agreed to do so under contract so you knew ahead of time you had to preserve those sorts of things are what this more pointed out would require an affirmative duty to preserve evidence and finally the fourth and and really in this particular case the relevant issues that will be discussing today are the voluntary assumption without specific agreement but with affirmative act to preserve a piece of evidence those things must one of those things must be present order to satisfy the first prong called they had their people come out and at some point they called egyptian concrete the manufacturer because they knew they had to get another being made and they came out and everybody stands there kind of scratching their chin look at it intil i got says osha's done their investigation get rid of it and i don who is in charge of this ultimately even though he was the contractor i got said look if you leave that thing in the creek bed it's going to ruin our bridge because it allows scoring or something like that to a car and it undermines the stability of the bridge the got to get rid of this healing never took it your honor they never took any effort made any effort to preserve it or segregated the cases which have the very few cases which have allowed a spoiler action claim relevant you know i don't your honor let me tell you why under boyd there are two prongs one how is the problem i just went through all of the specific acts you must see the first no were agreed to in order to preserve evidence and the second is for least in this case have argued well you knew you could be sued so you have to preserve evidence but your honor there is no law in illinois never has been any law in illinois that says just because you know that you might be potentially involved in litigation you have a duty to preserve and there are good public policy reasons for that but moreover and more specifically to boy what that argument does if somebody says well you were a potential  therefore you should preserve was it gets rid of wipes out the first requirement of boy and it makes only one prong requirement remember i told you first you have to agree to do it and then there must be for see a bill to that if you didn't do it you could have get you have to keep that evidence that has never been the law in the state of the state of illinois and it would completely nawaf the void prongs as well as this the next morning what had happened is osha came out came out told me to get rid of it and the manufacturer came out and they said you know if you cut the ends off of those of that beam that in caps off of that beam and give them to us with you know the beam out here quickly so they went out cut the end caps off and cut the beam up until they called it rip rap so it will go on down stream so the next morning they just they got rid of that the duty is tied to the foreseeability element i don't think so looked at them in tandem right that make you question a law as to both duty and for suitability as a writer that they have your honor there have been set up and in this case i think i think we can't get to first the ability but if the court looked at that first i think you would also see that as a matter of law there is no evidence before this court in the court record that would allow the court to make a factual issue out of perceived bills so the court would have to rule as a matter of law but the way boyd set out the the analysis we first have to go to the well is there a duty to begin with and i think we all agree that that is going to be a legal issue only in addition other than the the status as a potential  there's also an argument by the pelleas that the ability or opportunity control evidence places upon a the holder or the controller of that evidence the duty to preserve and again that is not the law in the states the court has found well i'll just run through the districts every almost every appellate court in this supreme court in miller versus the fifth district in other cases have said there has to be something more than control it's not just control it's an affirmative duty to try to preserve it segregate preserve or otherwise try to set it aside so that someone knows or someone is trying to protect is the evidence  the second district in the andersen case we cited the first district district after district court of appeals after court of appeals hold that the opportunity to control evidence is not enough here we didn't own the evidence we control to the extent of we did with it what the owner told us to do with that now with respect to the other issues in that case i noticed that my model my amber light is on so i will simply turn it over to mr scott to say that adoption of this notion or this argument or this position of the fifth district experience boy and it expands and really no fuss illinois law and mr scott will further discuss that here some years back the fifth district held that there was no insurance coverage applicable to this case and that's why i'm representing keeley against the plaintiffs a coverage does exist for the claims of contribution which have been brought by henderson and egyptian and that's how this champion fits in eight years ago i stood in front of this court to argue that the appellate court and improperly applied the boy requirements in a case then pending in illinois and and this court issued a strong and decisive opinion at that time reaffirming all of the principles of boyd as the controlling authority in illinois in the area of spoliation that case was  cueing now once again i ask you to reverse an action of the appellate court for the fifth district following up on justice freeman's question the the accident occurred on may twenty ninth two thousand and one three o'clock in the afternoon when watch concrete beam embedded with steel parts rolled on a bridge project injuring three of keeley's employees the beam landed in the creek below the bridge and broke in half and there the essentially untouched for seventeen hours little over seventeen hours until the morning of may thirtieth when it was hammered into rip rap oh shit i had completed its onsite investigation and had concluded that the beam had rolled because of excess weight from the people who were standing on this beam which was not tied down it was it was really kind of a a classic silly accident i diot also completed its onsite investigation but indicated it did not want the being to remain in the creek because of the scouring effect that the blocking the water of the creek would have so in that entire seventeen hours it had not been moved it had not been segregated it had not been you know no police tape or or fence or anything like that had been put around it it's just la there in the creek mr kiely was asked in a deposition if he could have taken it out of the creek and taken it somewhere else and he said well yeah we could have we didn't have the equipment on site to do that so it would have required bringing a piece of equipment in taking the beam out of the creek putting it on a truck and taking it somewhere and that no one asked him to do that neither the state nor osha nor any of the parties in this litigation made any request of him to inspect the beam or take any action with respect to the beam and in the meantime of course the state wanted this project to move along and wanted this beam to be taken care of  which would then help the project move forward and that's what was done and those were taken out and then the rest of it was was literally just chopped into little pieces and left as rip rap in the arguing that there was a special relationship that had occurred because of the employer employee relationship and they also argued the foreseeability question that justice thomas bench the appellate court decided on its own that  there was a voluntary undertaking however there was never any evidence when one looks at all those other cases that have been decided the deal with voluntary undertaking they all include some form of affirmative action by the party who against whom spoliation is claimed either an express agreement in some cases boyden is a classic example that the insurance company said we'll keep this heat or until everybody gets a chance to look at it and then they threw it away other cases you know where they held that either through express agreement or through their action they had made a conscious effort to actually  control not only keep control of it but to keep control for other people and there was a there was none of that here it just simply i mean this the the the shortness of time is is is partially a factor and the fact that no one asked  them to keep it and they didn't see any need to is there any concern is that there is no duty to preserve evidence everything else all spoliation cases have to find an exception to that rule and voluntary undertaking is one of those exceptions in this case particularly i mean if if if osha had said you know maybe this ought to be kept i'm sure it would have been if i dot had said maybe this ought to be kept i'm sure it would have been i mean one of the things that that is interesting in this case is that  the two parties that did conduct investigations were parties that keeley owed an obligation to either legally or by contract and so they had the best opportunity to preserve this evidence or order it to be preserved and they simply did not do that so what what what is happening here is an attempt to expand again the idea that that that there ought to be some general duty if you look at what just a spoiler said in his dissent which which we thought was was very compelling he says in this case killing sons did nothing more than allow government agencies to inspect its property in accordance with law to extend a voluntary undertaking exception to the owner of the property in question under these circumstances stances is tantamount to finding that there is a general duty to preserve evidence in illinois boyd said there's no such duty dard being reaffirmed that principle even all the cases where they find spoliation the court's all start off by saying there is no duty to general duty to preserve evidence so what the court is doing here with the fifth district is attempting to do here is essentially to extend the exception to the point that it wipes out the rule and that's what we're asking this court to reverse well by the fifth district and by the appellant in this case and that is whether the first prong of the boy do the analysis is boyish of evidence cases has been satisfied in this case obviously we believe it has we believe but we agree with the fifth district in that killing sons voluntarily soon to duty to preserve this failed beam now before we get into the issues policy to say that mere compliance with governmental regulation or government is or governmental inspection in and of itself gives rise or inspirers or propagates a voluntary undertaking to preserve the evidence but that's not all that happened here and appellant would like this court to believe that they would have like the fifth district to believe that but in this case after the being failed at helen's own engineer inspected it depends on an engineer drew conclusion why the beam failed and then after those conclusions were drawn upon destroy the beam and but but they did actually preserve some of the beams they kept the parts it needed it needed the steel and beds on either end of the beam that bear the weight of the beam so that it could get a new beam more quickly and as a practical matter we all know in the construction business time is money and i understand that but they kept those parts they also kept the interior steel pre stressed tending components essentially rebar and then recycled them so those were they either got a credit against you them as soon as they are kept that beam for their own benefit and my opinion their benefit was the inspired inspection by their own engineer the preservation of those portions of the beam that they could re use and to a lesser degree but part of the analysis is hanging on to it long enough to for these other agencies to inspect it i don't even know that those requests were made i know the facts of that are frankly a little bit underdeveloped but once that happened once that's a letter from healy and sons together with three pages of engineering calculations performed by mr layman that were submitted i die so to say that there's no citation to the record that killer performed inspection of the jobsite and of and an alysis of of the cause of the of the failure of the beam and that's just not accurate we decide to the record now they may disagree that that's an adequate cites of the record but it's in the record and in his deposition mr healy's deposition this is page four three three zero of the record page forty eight the deposition lines one through six he indicated that they concluded there was no problem with the beam but if they thought there would have been a problem with the beam they would have made note of that problem they would have pursued that problem now this kind of gets into the forsee a billet analysis which arguably understandably is the second you know the second hurdle that we have to get over in this case but throughout its brief killy sort of conflates well we didn't have any of the two prong saying well we didn't have any idea it was relevant so we were just getting on with business we didn't know it was relevant but you said that if you would have thought there was something wrong you would might have done something about it i think that to say that there's no evidence in the record at all that he had any idea that this could even possibly be relevant to potential future  but but i don't think that would be enough but when you're determining the cause of the failure you're preserving portions of that beam for your own benefit and then it's gone and whoever might be impacted by this is is forever without an opportunity to perform their own investigation to draw their own conclusions you've undertaken now whether they breached their duty to separate analysis and maybe they didn't i think they did but maybe they did maybe the correlative determine yeah you had a duty but you didn't breach it because you did what you needed to do  keeping it in its failed state long enough for their guy to draw it to analyze it figure out what he thought the cause of the failure was and then use that information to create a mathematical formula as to why it failed the way they feel a bit fail and they kept the steel portions of the beam that they needed they actually physically retained them and ship them back to the manufacture of the beam so they kept what they wanted and needed wasn't there at the request of the manufacturer else's where no but i don't think the law requires a preservation for the purpose of setting it aside as evidence the law doesn't require that if the law were if the law were well if you recognize that it's evidence and if you keep it for the purpose of preserving as evidence and then you lose it evidence well that's fine but then we might as well throw boyd out because we don't need that two part analysis anymore because that really that kind of just gets rid of the relationship not a provision of both void and all the voluntary undertaking does for us in this case is satisfy the relationship now if it was not for c of lee relevant or material then there's still no duty and we've got a lot of work to do still in that regard but but to say in this case that that the relationship prong of boyd was not satisfied because there was no balance terry undertaking i think ignores the facts of the case and i think that too to get ahead of ourselves are talking about whether or not it was preserved for the purposes of being evidence it is never been required  are as a part i understand their sit on the bridge to date on was there any testing or analysis performed on the i v no because it was destroyed less than twenty four hours after failed while one of my clients are still in the hospital so the fact that happened and and based on what they saw and what they observed and all the photographs that they took and kept their engineer went back and drew up  calculations that supported or were based either supported his is put on conclusion or were based upon his observations of the job site and the failed beam in the condition it was in nobody else even had a chance to look at that beam in the condition it was in laying in the and if they if they had done nothing right with the general rule that you agree with if they had done nothing they wouldn't be subject to the quick and you're saying that ocean i doubt isn't enough to subject them to  voluntary undertaking so i'm trying to find out what coupled with that is enough and you're saying it's that they made a determination well aren't aren't any of these always going to make a determination as to what happened i'm trying to understand why this isn't doing nothing well and i guess we're focusing on the voluntary undertaking because that was the decision of the fifth district but that's not i mean that's not the only thing in this case that that i see as as potentially forming the basis of the duty i also believe that under  worker's compensation laws really change the employer employee relationship but prior to really so this day an employer has a duty to provide a safe work environment for its employees and when an employee was injured and was in a location where the employer was the only one who could render aid the employer had a duty to do so they had a duty to take care of that person that person employs person and property it's similar here we have a circumstance where an employer has absolute control the instrumentalities of its employees that's not for a well i got said that they had concerns i don't know that they were as as grave as appellant would would have the court believe however if i got tells them to get it out of  creek i think they can get out of the creek but i've never said anything about destroy that thing and they could have easily removed it and if they can get the pieces out they need they could have easily moved it off to the side so should they have left it in the i mean it is in the creek as a practical matter then i would cases like miller emphasize what they well i think their request is is a factor to be considered about whether or not special circumstances exist the andersen case is specifically declined to extend a duty based on a request alone and essentially my argument is the inverse of that the lack of a request if a request alone is not sufficient to impose a duty than the lack of a request in and of itself should not be sufficient to avoid the duty and kind of getting back to what the court is one of the concerns of course already raised it's essentially a race to the bottom if we get rid of it fast enough and if nobody asks us to get rid of it and if we maybe just don't do anything just because we don't we then if we get rid of it quick enough then we're not going to be saddled with the duty mr gilbert you alluded to the workers compensation there than the relationship between him or your employee and you did so also in your brief i believe are you arguing i want to understand the argument or your reference to it are you arguing that there was a duty by the employer to maintain the beam  connection with a worker's comp claim that wouldn't have anything to do with no he doesn't know what system you're i don't know i wouldn't i would look at it that way what i would look at it as is is when my position is that and i'm the employer employee relationship could be recognized and perhaps should be recognised by this court as a special relationship under boy that would that would that would then put the employer in a position of ok if you're employer has a duty or excuse me is in a special relationship with its employees therefore cantor i've talked we've talked about that a lot around the office because duty generally is an issue of law but for see ability generally has a question for the jury i would i would say probably not i think that if you're entering into a forsee ability analysis of whether or not a reasonable person and i apologize it appears i think my time has expired i'm we talked about this downstairs i'm colorblind so the re you if if we were asking the question of whether a reasonable person in the same or similar circumstances as the alleged politer would be did or should have forseen the materiality of this evidence that sounds an awful like a jury question to me so i don't know that it should be decided as a matter of why it seems to me like a question that ought to be decided by a jury but obviously this court has much more weight on that issue than i do matter i have taken just a few moments of the time  house for plaintiff has set forth primarily our arguments as well as their own with regard to the first prong of the test in this case i would like to point out a couple of things however i think there was a reference early on gypsy concrete did come to the site there's no indication in the record that egypt actually came to the site at any time and certainly not before the beam was destroyed there's also been a question raised with regard to whether or not there was any type of request to view or inspect the team the plant manager for egyptian was deposed and at one point he was asked whether or not anyone whether he or anyone from egyptian ever asked healy for the opportunity to inspect the beam and he did reply yes to that question there is no fast yes yes the the call was made within the day or the day after and the plant manager did indicate that if they could get those plates out we could make that work quickly because we did have to g another manufacturer for those with regard to the the voluntary undertaking as late as was noted counsel has gone through those and we also cite in the record the calculations that were made by the engineer mr keely and his is near both of whom have had extensive work in the construction business did come out spent their time made their are at the site or know it's formed and then brought to the site and my dad and that's another point we're just a little bit of background there is that it they could see if there was a defect at that time but once it's cooler and the insides are obviously covered there's no way to tell if there's a void or anything on the inside unless the proper testing is undertak the the allegations are good kids my client or that it is defect and in order to defend it it's affective we would need that portion of the concrete to do the testing on that to see if in fact it was the reason we're here today i would like to conclude and see my light is on as well as i did and just i think that what the appellate court did was appropriate it analyzing the facts and applying them to this court's two prong test particularly with regard to actually in this case says the preservation of a portion of this item for reuse and not for evidence means there was a voluntary undertaking that flies in the face of every case this state or any  in the state has ever set forth in miller versus a group to the court said in that case there was an assumed duty to preserve for evidence they requested it there was a request to have that done and it was segregated the bobbery case the only case where there's been a finding of something that should be submitted for spoliation the court said in a prize winning car segregated in committed to preserve this for evidence the jones versus o'brien case o'brian tire the defendant undertook to segregate and preserve it they had actual control and assume the duty to preserve as evidence for five or six medicare closure the boyd case they took under took and segregated the heater and then they lost it in this case it fell we left it there there was no opera there was no action to preserve it there was no request for us to preserve it there was no segregation there was no covering it or trying to protect it that had to happen under the current law in this state earlier judge garman asked do we encourage parties to destroy evidence and asked admit to this court we do not encourage parties to destroy evidence what we encourage is this the reason for the rule to begin with there is no general duty in this state to preserve evidence why not because we want safe sidewalks we want people to fix the problems that are there not to continue to let them be there because they might get sued if they fix that for spoiling ation we want people to fix machines that are dangerous we want people to take out beams from from  undermine bridges and for that reason we don't encourage people to destroy them your honor because there are other rim of the east if people come in and they are in a case in which they don't know what happened to that it was destroyed there is an adverse inference that can be drawn with respect to those types of actions and that's the room that the plaintiffs would have been a case where a proper defendant destroyed evidence that it shouldn't have to strongly thank you i'll let mr scott thank you i just want to address a couple of questions that have come up first of all about this part of the record regarding mr layman who was the keeley engineer and i certainly invite the court to review that letter very carefully it's c o three nine five six and seven and then some calculations follow it's very evident in that letter what the purpose of this letter is is not to discuss the cause of the accident what the purpose of the letter is and it's addressed to the two i doubt it is to ask for additional time to do the project they point out that it will take from they won't get a new beam until june eleventh and they say they will be back to the to the pre accident point by june eighteenth and they do they do do some calculations for mr layman the letters actually from mr kiely but it certainly is not a determine attempt to determine how the accident happened also to to judge to justice karmas point about the worker's comp situation mr keillor his deposition is contained in the record i think he was deposed more than once about the foreseeability issue in and he says we thought there when we had three of our employees in the hospital we thought there'd be a worker's compensation claim there was no other party there was no other contractor there was no other company  on this job or at this scene the only people involved in this were keeley and sons so he had certainly no idea that there would ever be a lawsuit that actually was frankly some creative pleading by a very talented lawyer in st clair county  but the first the ability it that is mentioned to the appellate court's ruling on that point and i note that the amakosa in this case has suggested that appellate court was an error that should have that it's a question of law on the on the issue of the foreseeability and to be honest i i tend to agree generally that it is a question of law we certainly would not be unhappy in this particular case if we had to submit that issue to a jury we believe the evidence is pretty strong lastly let me talk about this so called request from egyptian there is  one answer to a question in a deposition by this mr schmidt who was the egyptian plant manager and it when i was preparing for this argument it really when i looked at this it was so out of context that he that he did answer s or yes when he was asked did you or anyone from egyptian ever ask for the opportunity inspect it and then there was no other questioning about that that request and it just seems so odd  so i went back and i read the entire deposition and there's a lot more testimony and it's all in the record before you from this same gentleman  one seven four one the evidence in this case that the eye being that fell did not crack or break until it hit the ground alone would it have helped you to go to the scene of the accident to see that beam to try to figure out what happened to the beam and mr schmidt says you know this wasn't that big a deal to us i mean things like that i'm not going to say happen all the time but they have problems that occur and you know that maybe they may break something or something doesn't fit i wasn't real interested in it like i said you didn't ask elian sons to save the beam for you to inspect it to see whether answer no so as far as you are concerned from what you know about that being the concrete and the ability of the concrete to hold weight was not the problem i was never worried about that because of the test that happened before it got sent out you know i mean that was the furthest thing from my mind that we had any responsibility for bad concrete so i mean there really is there was nothing wrong with the concrete there was wrong with the steel this accident happened because too much weight was put on this beam and it rolled over and that's what i dot found and that's what osha found and that's what this case you know was always about so this idea somehow that there's this need for for keeley to have spent a lot more money to remove the beam bring in equipment remove the beam take it somewhere it is really it support this request for more time from the from i don't mean secondly of course they this is an accident that happened they've got to know why it happened to some extent so it doesn't happen again this was obviously of  outstanding but i don't think that they were preparing for for some litigation no one thought anything happened here except that the beamer oh so thank you for sharing thank you