Hilligoss v. Schnuck Markets, Inc.
Filing
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OPINION entered by U.S. Magistrate Judge Byron G. Cudmore: Plaintiff Gweneth Hilligoss' Motion for Leave to Amend Complaint at Law to Add Additional Counts 24 is DENIED. See written order. (LB, ilcd)
E-FILED
Monday, 16 December, 2013 02:01:59 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION
GWENETH HILLIGOSS,
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Plaintiff,
v.
SCHNUCK MARKETS, INC.,
Defendant.
No. 13-cv-3095
OPINION
BYRON G. CUDMORE, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Plaintiff Gweneth Hilligoss’
Motion for Leave to Amend Complaint at Law to Add Additional Counts
(d/e 24) (Motion). This case comes before the Court under diversity
removal jurisdiction. Hilligoss alleges that on March 26, 2011, she suffered
personal injuries in Defendant Schnuck Markets, Inc.’s (Schnuck’s) grocery
store located at 2801 Chatham Road, Springfield, Illinois (Store). She
alleges that a checker injured her by negligently hitting her in the elbow
with a large package of bottled water. Notice of Removal (d/e 1), Exhibit A,
Complaint at Law (Complaint), ¶¶ 7-10.
During discovery, Hilligoss sought copies of video recordings made
by the Store’s security cameras. Schnuck’s provided the video recorded by
one security camera. This camera recorded the events in the checkout
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lane where the incident occurred. Schnuck’s adjuster had previously
determined that the video taken by the other security cameras in the Store
was not relevant, and so, did not preserve any of it. See Motion, at 6-7.
Hilligoss now asks to amend the Complaint to add a claim for
spoliation of evidence. Hilligoss’ proposed amendment alleges:
4. That the Defendant, Schnuck Markets, Inc., maintained
and operated multiple closed circuit video cameras capturing
images of the Defendant's premises from multiple angles.
5. That agents and employees of the Defendant, Schnuck
Markets, Inc., held access to those cameras by virtue of their
relationship with the Defendant.
6. That subsequent to the injury as alleged in the Plaintiffs
Complaint at Law, a prior adjuster of the Defendant, Debbie
Harris, retrieved one videotape of the Plaintiff, Gweneth
Hilligoss, being struck on or about March 26, 2011, at 2801
Chatham Road, City of Springfield, State of Illinois.
7. That Harris failed to secure the footage of the other
cameras in the immediate vicinity.
8. That upon information and belief, one or more cameras
in the immediate vicinity also captured portions of the incident
as described in the Plaintiffs Complaint at Law.
9. That the footage recorded by the aforesaid cameras
was subsequently destroyed, or allowed to be destroyed, by
agents or employees of the Defendant, Schnuck Markets, Inc.
10. That despite the fact that the Defendant knew, or
reasonably should have known, that the video footage at issue
was material evidence to a potential personal injury cause of
action, the Defendant failed to use due care in preserving this
key evidence.
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11. That as a direct and proximate result of the
Defendant's failure to use due care in preserving the videotape,
Plaintiff was unable to establish by direct evidence the impact
that caused injury to the Plaintiff, and the corresponding
negligence and/or violation of the Premises Liability Act, and
but for the loss of this evidence, Plaintiff would have succeeded
in her prosecution of this lawsuit against the Defendant; further,
Plaintiff has suffered money damages because of her inability
to successfully prosecute her claim.
Motion, Exhibit M, Proposed Complaint at Law, Count III Negligence—
Spoliation, ¶¶ 4-11. Schnuck’s opposes the Motion.
ANALYSIS
Leave to amend pleadings is to be freely given when justice so
requires. Fed. R. Civ. P. 15(a)(2). The Court may deny leave to file an
amendment to a complaint when the amendment would be futile or cause
undue delay. Foman v. Davis, 371 U.S. 178, 182 (1962). Schnuck’s
objects to the proposed amended pleading because the amendment would
cause undue delay and because the additional claim would be futile. The
Court agrees that the amendment would be futile.
Illinois does not recognize a separate tort of spoliation of evidence.
Rather, spoliation is brought as a negligence action. Boyd v. Travelers Ins.
Co., 166 Ill. 2d 188, 194-95, 652 N.E.2d 267, 270 (Ill. 1995). As such,
Hilligoss must allege duty, breach of duty, proximate cause, and damage.
E.g., Estate of Johnson by Johnson v. Condell Memorial Hosp., 119 Ill.2d
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496, 503, 520 N.E.2d 37, 40 (Ill. 1988). In this case, Hilligoss’ proposed
pleading fails to allege facts which, if true, would establish that Schnuck’s
owed her a duty to preserve the video recordings.
Illinois does not recognize a general duty to preserve evidence. Boyd
v. Traveler’s Ins., 652 N.E.2d at 270. A party, however, may incur a duty to
preserve evidence as a result of an agreement, a contract, a statute, a
voluntary undertaking or other special circumstance. Id. Hilligoss alleges
no agreement, contract, or statute that gave rise to this duty. Hence, her
allegations must plausibly show a special circumstance or a voluntary
undertaking to allege the element of duty. The proposed allegations do
neither.
Hilligoss alleges no special circumstances that would impose a duty.
Hilligoss alleges that Schnuck’s possessed and controlled the recordings.
Exclusive possession and control of the evidence does not create a special
circumstance. See Martin v. Keeley & Sons, Inc., 2012 IL 113270, ¶¶4446, 979 N.E.2d 22, 31(Ill. 2012). To establish a special circumstance in
this context, Hilligoss must allege that she made a request to Schnuck’s to
preserve the other recordings before they were erased or recorded over.
Id. She does not allege that she made any such request.
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Hilligoss also does not allege a voluntary undertaking. Illinois law on
a voluntary undertaking of a duty provides, “[O]ne who undertakes
gratuitously or for consideration, to render services to another is subject to
liability for bodily harm caused by the other by one’s failure to exercise due
care in the performance of the undertaking.” Rhodes v. Illinois Cent. Gulf
R.R., 172 Ill.2d 213, 239, 665 N.E.2d 1260, 1273 (Ill. 1996). Hilligoss
alleges that Schnuck’s voluntarily made the multiple recordings of events
throughout the Store and kept one recording of the incident. Hilligoss does
not allege that Schnuck’s voluntarily made the recordings or kept the single
recording as a service for her. Rather, it seems clear that Schnuck’s
operated security cameras for its own purposes, and kept the one
recording for its own purposes. The allegations do not establish a
voluntary undertaking.
Hilligoss’ proposed amendment fails to allege the essential element
of duty. Therefore, the proposed amendment would be futile, and the
Motion is denied.
WHEREFORE Plaintiff Gweneth Hilligoss’ Motion for Leave to Amend
Complaint at Law to Add Additional Counts (d/e 24) is DENIED.
ENTER: December 16, 2013
s/ Byron G. Cudmore
UNITED STATES MAGISTRATE JUDGE
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