The Defendant Destroyed the Evidence, So What Can I Do?

CHICAGO, IL, March 15, 2013 (Press-News.org) When personal injury clients consult with a Chicago injury attorney claiming that they were injured by an object, product or other property the first question they are asked is who possesses the item that caused the injury. Often the answer will be I do not know or it was thrown away.

Illinois law recognizes a principal called "Spoliation of Evidence" which is a form of negligence. If a defendant destroys physical evidence which the plaintiff needs to prove his case, the law provides relief under the following special circumstances:

Where the defendant takes possession and control of the object, the plaintiff makes a timely request to preserve the evidence and further shows that "a reasonable person in the defendant's position should have foreseen that the evidence was material to a potential civil action." See: Boyd v .Travelers Insurance Co., 166 Ill. 2d 188, 194-95 (1995).

In the recent decision of TERRY MARTIN et al., v. KEELEY & SONS, INC., the Illinois Supreme Court took a hard line against a plaintiff seeking to invoke the spoliation doctrine. The case involved a plaintiff injured by a defective steel I-beam on a construction site. The defendant destroyed the beam hours after the accident and before the plaintiff could demand its preservation. The high court refused to vacate the trial courts dismissal of the lawsuit holding that absent a plaintiff's timely demand the defendant was under no duty to preserve the evidence.

It is difficult to reconcile Martin, id with the courts previous decision in the case of Shimanovsky v. General Motors Corp., 181 Ill. 2d 112 (1998) where the court found that a trial court could impose discovery sanctions upon a defendant for the destruction of evidence during the pendency of the case:

"a potential litigant owes a duty to take reasonable measures to preserve the integrity of relevant and material evidence." p 121

Decisions such as Martin and Shimanovsky cannot be justified beyond the Supreme Court's simple desire to limit spoliation of evidence lawsuits.

Please remember that if you or a loved one is injured as a result of a defective product, contact an experienced Chicago injury attorney to take the immediate steps to preserve the important evidence necessary to prove your case.

At Steinberg, Burtker & Grossman, our Chicago attorneys believe that practicing law is not just a job, it's a craft. Personal injury claims, especially tough ones, cannot simply be worked through. They must be thought through. Every element must be carefully considered. Strengths must be analyzed and weaknesses must be recognized. A strategic method must be employed and is employed by the personal injury attorneys at our Chicago law firm.

Website: www.rickgrossman.com.