                             ILLINOIS OFFICIAL REPORTS
                                           Appellate Court




                           Kilburg v. Mohiuddin, 2013 IL App (1st) 113408




Appellate Court              JOYCE KILBURG, Plaintiff-Appellant, v. MUNAWAR MOHIUDDIN,
Caption                      ZANTE CAB COMPANY, INC., a Corporation, TAXI MEDALLION
                             MANAGEMENT, INC., TAXI AFFILIATION SERVICES, LLC, and
                             WOLLEY CAB ASSOCIATION, INC., d/b/a Checker Taxi Affiliation,
                             Inc., Defendants-Appellees.



District & No.               First District, Fifth Division
                             Docket No. 1-11-3408


Filed                        May 3, 2013


Held                         In an action for the injuries plaintiff suffered when the taxi in which she
(Note: This syllabus         was riding left the road and struck a tree, the dismissal of plaintiff’s
constitutes no part of       spoliation of evidence claims against the owner and driver of the cab was
the opinion of the court     reversed, since the owner and driver were aware of plaintiff’s request for
but has been prepared        the preservation of the cab, including the event data recorder, and the
by the Reporter of           complaint sufficiently alleged facts establishing a duty on the part of the
Decisions for the            owner and the driver to preserve the cab and its contents, but the
convenience of the           spoliation claims were properly dismissed as to the defendant entities
reader.)
                             involved in licensing and operating the cab in the absence of a showing
                             that those entities knew of plaintiff’s request to preserve the cab.


Decision Under               Appeal from the Circuit Court of Cook County, No. 09-L-12140; the
Review                       Hon. Lynn M. Egan, Judge, presiding.



Judgment                     Reversed in part and affirmed in part.
Counsel on                 Corboy & Demetrio, P.C., of Chicago (Daniel M. Kotin and William T.
Appeal                     Gibbs, of counsel), for appellant.

                           Allen L. Wiederer, of Chicago, for appellees Munawar Mohiuddin and
                           Zante Cab Company, Inc.

                           Hinshaw & Culbertson LLP, of Chicago (Steven R. Bonanno, Kimberly
                           A. Jansen, and Anne C. Couyoumjian, of counsel), for appellees Taxi
                           Medallion Management, Inc., Taxi Affiliation Services, LLC, and Wolley
                           Cab Association, Inc.


Panel                      JUSTICE PALMER delivered the judgment of the court, with opinion.
                           Presiding Justice McBride and Justice Taylor concurred in the judgment
                           and opinion.



                                             OPINION

¶1          Plaintiff Joyce Kilburg was injured while a passenger in a taxi. She filed a negligence and
        spoliation of evidence action against defendants Munawar Mohiuddin, Zante Cab Co., Inc.
        (Zante), Taxi Medallion Management, Inc. (Taxi Medallion), Taxi Affiliation Services, LLC
        (Taxi Affiliation), and Wolley Cab Association, Inc. (Wolley), doing business as Checker
        Taxi Affiliation, Inc. The trial court dismissed the spoliation claims against defendants
        pursuant to section 2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615 (West
        2010)). Plaintiff appeals, arguing the court erred in dismissing her spoliation claims because
        her complaint set forth sufficient facts to show that defendants had a duty to preserve the
        evidence. We affirm in part and reverse in part.

¶2                                           Background
¶3          On October 6, 2009, at 10:30 p.m., plaintiff was injured when the taxi in which she was
        a passenger left the roadway and crashed into a tree. Mohiuddin was the driver of the taxi.
        Zante owned the taxi. After the accident, the Chicago police department towed the taxi to a
        Chicago auto pound. On October 8, 2009, Zante had the taxi towed to a lot at 949 Elston
        Avenue in Chicago. Taxi Medallion leased the lot from the lot’s owner and stored taxis there.
        Taxi Affiliation paid the rent on the lot.
¶4          The taxi bore the insignia of Checker Taxi. Wolley, a taxi association, operated the
        Checker taxis in the City of Chicago. Zante had a written “Association Agreement” with
        Wolley “d/b/a Checker Taxi Affiliation, Inc.” Under the agreement, Zante, identified as an
        independent contractor, paid Wolley a weekly “association fee” in exchange for a license to

                                                 -2-
     operate the taxi as a Checker taxi, radio dispatch services, insurance coverage for the taxi and
     assorted other services. The agreement provided that Wolley could terminate the agreement
     if Zante or its driver failed to notify Wolley “of any accident involving [Zante] and one of
     its taxicabs within one (1) hour following the occurrence of such accident.”
¶5        On October 13, 2009, plaintiff filed a complaint against Mohiuddin, Zante and Checker
     Taxi Company, Inc., asserting that their negligence caused her injuries. Checker Taxi
     Company, Inc., ceased to exist in 1988. On October 15, 2009, the court granted plaintiff’s
     emergency motion for an order of protection and production, ordering that Mohiuddin, Zante
     and Checker Taxi Company, Inc., “shall preserve and protect the [taxi] in its current
     condition and shall make it available to Plaintiff and her representatives ***. The vehicle
     shall not be driven, repaired, modified or moved without agreement of the plaintiff or prior
     order of Court.”
¶6        Plaintiff amended her complaint numerous times, adding and dismissing parties and
     claims. On July 12, 2011, she filed the five-count, sixth amended complaint at issue here.
     Count I asserted a negligence claim against Mohiuddin and Zante. Counts II through V
     asserted claims for spoliation of evidence against Mohiuddin and Zante, Wolley, Taxi
     Medallion, and Taxi Affiliation. Only the four spoliation claims are at issue here.
¶7        In plaintiff’s spoliation claim against Mohiuddin and Zante (count II), she asserted that
     Zante knew or should have known that Mohiuddin, Zante’s agent and/or employee, had
     suggested that the cause of the crash was “sudden acceleration (i.e., the taxicab suddenly,
     unexpectedly and unintentionally accelerated).”1 She asserted that, on October 6, 2009, the
     day of the crash, the taxi was equipped with an event data recorder with two component parts
     and that, “through October 8, 2009, both component parts of the Event Data Recorder were
     present.” Plaintiff asserted that, on October 8, 2009, Zante and Mohiuddin possessed,
     controlled and had access to the taxi.
¶8        Plaintiff asserted that on October 9, 2009, her counsel had sent correspondence to
     Mohiuddin and Zante demanding that the taxi be preserved and protected.2 She asserted that,
     on November 9, 2009, her counsel and consultants inspected the taxi in order to verify the
     claim of sudden acceleration by downloading the event data recorder information but they
     found the recorder missing. Plaintiff claimed that, if her counsel and consultants had been
     able to download the data and verify that the taxi experienced sudden acceleration, she
     “would have commenced with a product liability lawsuit.”
¶9        Plaintiff asserted that Mohiuddin and Zante knew or should have known that the recorder
     was material evidence in the litigation regarding the taxi crash on the basis of (1) the October


             1
               In his answers to plaintiff’s interrogatories, Mohiuddin had reported that the taxi
     “unexpectedly and uncontrollably accelerated.” Zante had answered similarly, stating that “[i]t is
     thought that the vehicle experienced a sudden, unexpected and uncontrollable acceleration which
     led to the accident. The precise defect or cause of such phenomenon is unknown.”


             2
                 Plaintiff did not attach a copy of this correspondence to her complaint.

                                                   -3-
       9, 2009, correspondence from her counsel, (2) her October 13, 2009, complaint and (3) the
       court’s October 15, 2009, order requiring preservation of the taxi. She asserted that Zante and
       Mohiuddin removed or allowed removal of the recorder between October 6, 2009, and
       November 9, 2009.3 She claimed that, “[a]s a proximate result of [their] destruction,
       misplacement and/or loss of critical evidence, [she could not] succeed in proving a product
       liability lawsuit regarding sudden acceleration.” Plaintiff asserted that, “[h]ad it not been for
       the destruction, misplacement and/or loss of the critical component of the Event Data
       Recorder, Plaintiff would have had a reasonable probability of succeeding in proving a
       product liability claim as Plaintiff’s counsel’s consultants could have verified that the taxicab
       experienced ‘sudden acceleration’ as a result of the defect.”
¶ 10        In plaintiff’s spoliation claim against Wolley (count III), she asserted that Zante operated
       the taxi as part of a “Wolley/Checker fleet of taxicabs,” Mohiuddin was an agent and/or
       employee of Wolley/Checker and Wolley controlled the taxi. She asserted that, pursuant to
       Zante’s agreement with Wolley, Zante notified Wolley of the accident and plaintiff’s injuries
       on October 6, 2009, within an hour of the crash. Plaintiff alleged that Wolley knew of
       Mohiuddin’s sudden acceleration assertion on or after October 6, 2009. She claimed that, on
       October 6, 2009, the taxi was equipped with an event data recorder with two component
       parts and “through October 8, 2009, both component parts of the Event Data Recorder were
       present.”
¶ 11        Plaintiff asserted the taxi was relocated to the Elston lot on October 8, 2009, and that
       Wolley possessed, controlled and had access to the taxi on that date. Plaintiff alleged that
       Wolley knew or should have known that the event data recorder was material evidence in
       litigation regarding the crash through her counsel’s correspondence, her initial complaint and
       the court’s order of protection. She alleged that, between October 6, 2009, and November
       9, 2009, Wolley removed or allowed the removal of the recorder.4 Plaintiff claimed that, as
       a result of Wolley’s “destruction, misplacement and/or loss of the critical component” of the
       recorder, her reasonable probability of succeeding in proving a product liability claim was
       foreclosed.
¶ 12        In plaintiff’s spoliation claims against Taxi Medallion in count IV and Taxi Association
       in count V, she asserted that Taxi Medallion leased the Elston lot on which the taxi was
       stored. She claimed that, pursuant to Taxi Medallion’s lease agreement with the lot’s owner,
       it was permitted to park vehicles in the lot and “was obligated to prevent ‘anything to be
       done upon the property which in any way shall violate any federal, state or municipal law,
       ordinance or regulation.’ ” Plaintiff claimed that Taxi Affiliation, “an affiliated corporation


               3
               This allegation in the complaint contradicts plaintiff’s earlier allegations against Mohiuddin
       and Zante that the taxi was equipped with an event data recorder with two component parts on
       October 6, 2009, the day of the crash, and “through October 8, 2009, both component parts of the
       Event Data Recorder were present.”
               4
               Again, this allegation contradicts plaintiff’s earlier allegations against Wolley that the taxi
       was equipped with an event data recorder with two component parts on October 6, 2009, and
       “through October 8, 2009, both component parts of the Event Data Recorder were present.”

                                                    -4-
       of [Zante, Wolley and Taxi Medallion,] paid the rental fee to allow Taxi Medallion to use
       the lot.
¶ 13       The majority of plaintiff’s assertions regarding Taxi Medallion and Taxi Affiliation were
       identical. In count IV, she asserted that Taxi Medallion “managed” the “Wolley/Checker
       fleet of taxicabs” and Zante notified Taxi Medallion and Wolley/Checker of the crash and
       injuries within the hour. In count V, she made the same assertions against Taxi Affiliation.
       In count IV, plaintiff asserted that Taxi Medallion controlled the lot, determined which
       vehicles in its fleet would be stored there and was obligated to ensure that the stored vehicles
       were safe from theft, tampering and destruction. She claimed that the taxi had both
       components of the event data recorder on October 6, 2009, and “at the time [it] was moved”
       to the Elston lot. She claimed that, “on October 8, 2009, and thereafter,” the taxi was stored
       on the Elston lot and in the exclusive possession and control of Taxi Medallion. In count V,
       she made the same assertions regarding Taxi Affiliation.
¶ 14       In count IV, plaintiff asserted that Taxi Medallion knew of the sudden acceleration claim
       and that the data recorder was critical evidence. She asserted that, due to its corporate
       relationship with Zante and Wolley and its agreement to store the taxi, Taxi Medallion knew
       of the October 9 letter, October 13 complaint and October 15 court order “as it had
       voluntarily undertaken possession, control and responsibility for the subject taxicab and
       component parts, including the [data recorder] and its component parts.” She asserted,
       “[a]lternatively, [Taxi Medallion] failed to enact a policy or procedure for identifying which
       vehicles at its storage lot were subject to Protective Orders and/or requests for preservation
       of evidence.” She alleged that, between October 8, 2009, and November 9, 2009, Taxi
       Medallion removed or allowed the removal of a critical component of the data recorder and,
       as a proximate result, she could not succeed in her product liability lawsuit based on the
       taxi’s “sudden acceleration.” In count V, plaintiff made the same allegations regarding Taxi
       Affiliation.
¶ 15       Plaintiff attached to her complaint a copy of the association agreement between Zante and
       Wolley, a copy of the “early entry license agreement” between Taxi Medallion and the owner
       of the Elston lot allowing Taxi Medallion to occupy the lot and a copy of two checks from
       Taxi Affiliation to the lot’s owner showing that Taxi Affiliation paid the rent on the lot.
¶ 16       Mohiuddin and Zante moved to dismiss the count II spoliation claim against them
       pursuant to section 2-615. They asserted plaintiff failed to allege facts giving rise to a duty
       on behalf of Zante and Mohiuddin to preserve the evidence in question, the taxi. Taxi
       Medallion, Taxi Affiliation and Wolley moved similarly, asserting that counts III, IV and V
       failed to state facts sufficient to show that they had a duty to preserve the taxi.
¶ 17       On November 1, 2011, the court granted defendants’ motions to dismiss the spoliation
       claims with prejudice. Pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010),
       it found no just reason to delay the enforcement or appeal of the dismissal order. On
       November 15, 2011, plaintiff filed her timely notice of appeal from the court’s dismissal of
       her four spoliation counts.




                                                 -5-
¶ 18                                            Analysis
¶ 19       Plaintiff argues that the trial court erred in dismissing the spoliation of evidence claims
       in her sixth amended complaint pursuant to section 2-615 because her complaint set forth
       sufficient facts to support spoliation claims against each of the defendants. A section 2-615
       motion to dismiss is based on the pleadings rather than on the underlying facts, admits all
       well-pleaded facts on the face of the complaint and attacks the legal sufficiency of the
       complaint, alleging only defects on the face of the complaint. Neppl v. Murphy, 316 Ill. App.
       3d 581, 584 (2000); Elson v. State Farm Fire & Casualty Co., 295 Ill. App. 3d 1, 6 (1998).
       Viewing the complaint in the light most favorable to plaintiff, we must determine whether
       the complaint alleges facts sufficient to state a cause of action upon which relief may be
       granted (Ziemba v. Mierzwa, 142 Ill. 2d 42, 46-47 (1991)) and do not consider the merits of
       the case (Elson, 295 Ill. App. 3d at 5).
¶ 20       In making this determination, we must take as true all well-pleaded facts of the
       complaint, drawing all reasonable inferences therefrom in favor of the nonmoving party and
       disregarding mere conclusions of law unsupported by specific factual allegations. Krueger
       v. Lewis, 342 Ill. App. 3d 467, 470 (2003); Ziemba, 142 Ill. 2d at 47. In ruling on a section
       2-615 motion, the court “may not consider affidavits, the products of discovery, documentary
       evidence not incorporated into the pleadings as exhibits, testimonial evidence or other
       evidentiary materials.” Elson, 295 Ill. App. 3d at 6. We must construe the complaint liberally
       and dismiss only when it appears that plaintiff cannot recover under any set of facts. Sheffler
       v. Commonwealth Edison Co., 399 Ill. App. 3d 51, 59 (2010). Our standard of review is de
       novo. Neppl, 316 Ill. App. 3d at 583.
¶ 21       In Illinois, spoliation of evidence is a form of negligence. Martin v. Keeley & Sons, Inc.,
       2012 IL 113270, ¶ 26. In order to set forth a sufficient claim of spoliation of evidence,
       plaintiff’s complaint must allege facts in support of the four elements of a spoliation claim:
       “(1) the defendant owed the plaintiff a duty to preserve the evidence; (2) the defendant
       breached that duty by losing or destroying the evidence; (3) the loss or destruction of the
       evidence was the proximate cause of the plaintiff’s inability to prove an underlying lawsuit;
       and (4) as a result, the plaintiff suffered actual damages.” Martin, 2012 IL 113270, ¶ 26.
¶ 22       As a general rule in Illinois, there is no duty to preserve evidence. Martin, 2012 IL
       113270, ¶ 27. However, a plaintiff can establish an exception to the general no-duty rule if
       it meets the two-prong test set forth by our supreme court in Boyd v. Travelers Insurance
       Co., 166 Ill. 2d 188 (1995). Martin, 2012 IL 113270, ¶ 27 (citing Boyd, 166 Ill. 2d at 195).
           “Under the first, or ‘relationship,’ prong of the test, a plaintiff must show that an
           agreement, contract, statute, special circumstance, or voluntary undertaking has given
           rise to a duty to preserve evidence on the part of the defendant. [Citations.] Under the
           second, or ‘foreseeability,’ prong of the Boyd test, a plaintiff must show that the duty
           extends to the specific evidence at issue by demonstrating that ‘a reasonable person in
           the defendant’s position should have foreseen that the evidence was material to a
           potential civil action.’ Boyd, 166 Ill. 2d at 195. If the plaintiff fails to satisfy both prongs
           of the Boyd test, the defendant has no duty to preserve the evidence at issue.” Martin,
           2012 IL 113270, ¶ 27.


                                                   -6-
¶ 23                                    A. Zante and Mohiuddin
¶ 24        Turning to the first prong of the Boyd test, we must determine whether plaintiff’s
       complaint alleged facts sufficient to support a finding that an agreement, contract, statute,
       special circumstance or voluntary undertaking gave rise to a duty on the part of Mohiuddin
       and Zante to preserve the missing evidence, the event data recorder. Plaintiff’s complaint
       stated no allegation that an agreement, contract or statute imposed such a duty and she does
       not argue otherwise. She points instead to her counsel’s sending the October 9, 2009, letter
       demanding preservation of the taxi; her filing the complaint on October 13, 2009; and the
       court’s ordering the preservation of the evidence on October 15, 2009. Plaintiff argues that,
       at a minimum, these actions, coupled with defendants’ knowledge of these actions and their
       knowledge of the unique circumstances surrounding the accident, created a special
       circumstance under which defendants’ duty to preserve the evidence arose.
¶ 25        Recently, in Martin v. Keeley & Sons, Inc., 2012 IL 113270, our supreme court addressed
       the existence of duty due to special circumstance in a spoliation of evidence claim. The court
       stated that “Illinois courts have not precisely defined a ‘special circumstance’ in the context
       of recognizing a duty in a spoliation of evidence claim. However, in Miller v. Gupta, 174 Ill.
       2d 120 (1996), we hinted at what special circumstances might give rise to a duty to preserve
       evidence.” Martin, 2012 IL 113270, ¶ 39.
¶ 26        In Miller, a plaintiff had brought a malpractice and spoliation of evidence action against
       her physician where the physician had allowed the plaintiff’s X rays to be destroyed. Martin,
       2012 IL 113270, ¶ 39 (citing Miller, 174 Ill. 2d at 122-23). The supreme court affirmed the
       appellate court’s decision to allow the plaintiff to replead her complaint to conform to Boyd,
       which had been filed while the appeal was pending. Martin, 2012 IL 113270, ¶ 39 (citing
       Miller, 174 Ill. 2d at 128).
¶ 27        In Martin, the court noted that its decision in Miller:
            “made special mention of evidence in the record that might constitute ‘special
            circumstances’ supporting a duty by the defendant upon repleading of the complaint: (1)
            the plaintiff’s medical malpractice attorney requested the plaintiff’s X rays from her
            doctor; (2) in response to the request, the doctor obtained the X rays and placed them on
            the floor in his office prior to taking them to the hospital for copying; (3) the doctor
            admitted that his wastebasket was located three feet from where he placed the X rays; (4)
            a housekeeper who was assigned to clean the doctor’s office testified that she regularly
            disposed of X ray jackets located in or near the trash; and (5) the housekeeper stated her
            belief that the plaintiff’s X rays were thrown out when she cleaned the office and were
            later destroyed in the hospital’s incinerator.” Martin, 2012 IL 113270, ¶ 40 (citing Miller,
            174 Ill. 2d at 123-24).
¶ 28        The court then pointed out that “[t]he factors in Miller supporting a ‘special
       circumstances’ exception to the no-duty rule were notably absent in Dardeen [v. Kuehling],
       213 Ill. 2d 329 [(2004)].” Martin, 2012 IL 113270, ¶ 41. In Dardeen, the plaintiff was injured
       when he fell in a hole on a brick sidewalk next to someone’s home. Martin, 2012 IL 113270,
       ¶ 41 (citing Dardeen, 213 Ill. 2d at 331). The homeowner contacted her insurer that day,
       reported the accident and asked whether she could remove the bricks in order to prevent


                                                 -7-
       further injuries. The insurer told her yes. The plaintiff returned to the accident site that
       evening to see the hole but took no photographs of the hole. A few days thereafter, the
       homeowner removed 25 to 50 bricks from the area. The plaintiff subsequently brought
       premises liability claims against the homeowner and spoliation of evidence claims against
       the homeowner and the insurer. Martin, 2012 IL 113270, ¶ 41 (citing Dardeen, 213 Ill. 2d
       at 331-32). The supreme court affirmed summary judgment for the insurer, finding that the
       plaintiff had failed to establish that the insurer owed a duty to preserve the sidewalk. Martin,
       2012 IL 113270, ¶ 42 (citing Dardeen, 213 Ill. 2d at 338-40).
¶ 29       In Martin, the court explained that, in Dardeen, it had distinguished Miller,
           “noting several key differences in the facts:
                   ‘Unlike the plaintiff in Miller, [plaintiff] never contacted the defendant to ask it
               to preserve evidence. [Plaintiff] never requested evidence from [the insurer], and he
               never requested that [the insurer] preserve the sidewalk or even document its
               condition. And though he visited the accident site hours after he was injured, he did
               not photograph the sidewalk. Additionally, unlike the doctor in Miller, [the insurer]
               never possessed the evidence at issue and, thus, never segregated it for the plaintiff’s
               benefit.’ ” Martin, 2012 IL 113270, ¶ 42 (quoting Dardeen, 213 Ill. 2d at 338).
       The court stated that, in Dardeen:
           “We noted that ‘no Illinois court has held that a mere opportunity to exercise control over
           the evidence at issue is sufficient to meet the relationship prong’ and that ‘[t]he record
           here indicates that [the insured] had neither possession nor control over [defendant’s]
           sidewalk and, therefore, owed [plaintiff] no duty to preserve it.’ ” Martin, 2012 IL
           113270, ¶ 44 (quoting Dardeen, 213 Ill. 2d at 339).
¶ 30       Our supreme court explained that it
           “did not hold in Dardeen that a defendant’s possession and control of the evidence,
           standing alone, is sufficient to establish a duty to preserve the evidence. Rather, [it] held
           that [the insurer’s] lack of possession or control over the sidewalk defeated the plaintiff’s
           spoliation claim. It is clear from the context of the Dardeen decision that something more
           than possession and control are required, such as a request by the plaintiff to preserve
           the evidence and/or the defendant’s segregation of the evidence for the plaintiff’s
           benefit.” (Emphasis added.) Martin, 2012 IL 113270, ¶ 45.
¶ 31       Here, we have not just a request from plaintiff to preserve the evidence but also a
       complaint and an order of court requiring preservation of the evidence. Three days after the
       accident, plaintiff’s counsel had sent a letter to Zante and Mohiuddin demanding that they
       preserve the taxi. Seven days after the accident, plaintiff had filed her negligence complaint
       and served it on Zante and Mohiuddin. Nine days after the accident, plaintiff had obtained
       and served a protective order from the court requiring Zante and Mohiuddin to preserve the
       evidence. The letter, original complaint and order served to notify Zante and Mohiuddin
       within days of the accident that the taxi was evidence in a suit and must be preserved. Based
       on Martin, we find that this notice, coupled with plaintiff’s factual allegation that Mohiuddin
       and Zante had possession and control of the taxi, is sufficient to support the existence of a
       special circumstance giving rise to Mohiuddin and Zante’s duty to preserve the evidence

                                                 -8-
       under the first prong of the Boyd test.
¶ 32       Mohiuddin and Zante asserted during oral argument that, even accepting that a special
       circumstance giving rise to a duty to preserve the evidence arose when they received
       plaintiff’s letter on October 9, 2009, there existed a “gap” in time between the occurrence of
       the accident on October 6 and receipt of the letter on October 9 during which no such duty
       existed. Plaintiff took the position at oral argument that, once the accident happened and
       Mohiuddin claimed “sudden acceleration” of the taxi, Zante and Mohiuddin knew that “the
       cab ran away from” Mohiuddin and a special circumstance giving rise to a duty to preserve
       the evidence arose on the part of Mohiuddin and Zante. We find mere knowledge of the
       accident and of the possible causes of the accident, standing alone, is insufficient to create
       a duty to preserve the evidence. Martin, 2012 IL 113270, ¶ 45. We find that there is no
       authority for the proposition that, prior to delivery of the letter on October 9, 2009, a special
       circumstance existed that gave rise to a duty to preserve the evidence.
¶ 33       The gap here concerns not days but a mere matter of hours. Plaintiff sufficiently alleged
       that both components of the recorder were in the taxi from the time of the October 6, 2009,
       accident and “through October 8, 2009,” when the taxi was moved to the Elston lot and
       allegedly came into defendants’ possession and control. Taking this well-pleaded allegation
       as true, the recorder was still in the taxi “through October 8, 2009.” Whether a special
       circumstance existed prior to the end of day on October 8, 2009, is, therefore, irrelevant
       because, taking the allegation as true, the recorder had not yet been removed from the taxi.
¶ 34       Given the sufficiency of plaintiff’s allegation that the recorder was in the taxi through
       October 8, 2009, the only “gap” of consequence lies between midnight on the morning of
       October 9 and delivery of the October 9 overnight letter. We grant that the recorder could
       have been removed from the taxi by one of the defendants during this short time period in
       which no special circumstance gave rise to a duty to preserve the evidence. However, this
       span of time concerns only a few hours and plaintiff further alleges that Mohiuddin and
       Zante removed or allowed removal of the evidence “[b]etween October 6, 2009, and
       November 9, 2009” (count II, paragraph 18), a month-long period, a portion of which we
       hold the duty to preserve the evidence existed.
¶ 35       On a section 2-615 motion to dismiss, “the plaintiff is not required to set out evidence;
       only the ultimate facts to be proved should be alleged, not the evidentiary facts tending to
       prove such ultimate facts.” Chandler v. Illinois Central R.R. Co., 207 Ill. 2d 331, 348 (2003).
       Accordingly, questions regarding whether and when the recorder was actually present in the
       taxi or when the loss of the recorder occurred are not addressed at the pleading stage on a
       section 2-615 motion to dismiss. Instead, these factual matters are for the trier of fact to
       decide subsequent to discovery. Since the time period alleged includes the time period where
       we hold that a duty to preserve the evidence could exist, we cannot find that there is no
       possibility that plaintiff will recover under the first prong of the Boyd test on the well-
       pleaded facts alleged in her complaint as required for dismissal under section 2-615.
¶ 36       Plaintiff’s allegations regarding Zante and Mohiuddin’s knowledge of the October 9,
       2009, letter, the original complaint and the court order are also sufficient to support a
       showing that the second prong of the Boyd test is met, i.e., that Zante and Mohiuddin’s duty


                                                 -9-
       to preserve the evidence extends to the specific evidence at issue, the taxi. Indeed, the letter
       standing alone would demonstrate that, as required under the second prong of the Boyd test,
       “ ‘a reasonable person in the defendant’s position should have foreseen that the evidence was
       material to a potential civil action.’ ” Martin, 2012 IL 113270, ¶ 27 (quoting Boyd, 166 Ill.
       2d at 195). Zante and Mohiuddin should have clearly foreseen that the taxi was material
       evidence given that, within three days of the accident, plaintiff demanded that they preserve
       the taxi. Compounded with service of the initial complaint and the court’s order requiring
       preservation of the evidence shortly thereafter, Zante and Mohiuddin clearly should have
       known within a few days of the accident that the taxi was material evidence in a civil action.
       Accordingly, plaintiff’s sixth amended complaint alleges facts sufficient to satisfy both
       prongs of the Boyd test with regard to Zante and Mohiuddin. The complaint is, therefore,
       sufficient to set forth an exception to the general rule that a defendant has no duty to preserve
       evidence.
¶ 37        With regard to the proximate cause and damages elements of a spoliation claim, we note
       that, in their brief before this court, Mohiuddin and Zante do not challenge plaintiff’s
       assertion that the sixth amended complaint alleged sufficient facts to support a showing of
       proximate cause and damages. Therefore, we do not address it.
¶ 38        Plaintiff’s sixth amended complaint sufficiently alleged facts to support a showing that
       Zante and Mohiuddin had a duty to preserve the taxi and its contents. As to Zante and
       Mohiuddin, the court erred in dismissing the spoliation count based on a lack of duty to
       preserve the evidence in question.

¶ 39                       B. Taxi Medallion, Taxi Affiliation and Wolley
¶ 40       These same factual allegations are not, however, sufficient to establish the existence of
       a special circumstance giving rise to a duty to preserve the evidence on the part of Taxi
       Medallion, Taxi Affiliation or Wolley. Even taking as true plaintiff’s assertion that, after
       October 8, 2009, Taxi Medallion, Taxi Affiliation and Wolley were in possession and control
       of the taxi, mere possession and control of the taxi do not constitute special circumstances
       giving rise to a duty to preserve the taxi without some showing that these defendants
       segregated the taxi for plaintiff’s benefit or knew of plaintiff’s request to preserve the
       evidence. Martin, 2012 IL 113270, ¶ 45. There is no such showing here. Plaintiff’s
       allegations are insufficient to show that Taxi Medallion, Taxi Affiliation and Wolley knew
       of the letter, original complaint or court order. The letter was addressed to only Mohiuddin
       and Zante (and to the nonexistent Checker Taxi Company, Inc.) and there is no allegation
       that Taxi Medallion, Taxi Affiliation and/or Wolley received a copy of the letter. Further,
       Taxi Medallion, Taxi Affiliation and Wolley were not named in the October 13, 2009,
       complaint and, therefore, were not served with either that complaint or the court’s October
       15, 2009, order to preserve the evidence. Plaintiff does not assert otherwise.
¶ 41       The complaint did allege that Taxi Medallion and Taxi Affiliation, due to their corporate
       relationship with Zante and Wolley and agreement to store the taxi, knew of the letter,
       complaint and court order. However, there are no well-pleaded allegations in the complaint
       supporting that such a relationship or agreement existed between Zante and/or Wolley and


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       Taxi Medallion and/or Taxi Affiliation. Nor does plaintiff assert any facts supporting a
       showing that Taxi Medallion, Taxi Affiliation or Wolley put the taxi in the Elston lot for her
       benefit. Indeed, from the complaint itself, we do not know which of the five defendants
       moved the taxi to the Elston lot, let alone that this was done for plaintiff’s benefit.
¶ 42        Plaintiff does assert that Zante, pursuant to its association agreement with Wolley,
       notified Wolley of the accident within an hour of its occurrence. However, even inferring that
       such notice alerted Wolley that a passenger was injured and that litigation might be
       forthcoming, as we held above, this notice is not in any way comparable to an actual request
       by plaintiff that Wolley preserve the evidence, such as was discussed in Martin. Wolley did
       not own the taxi and there is nothing to support plaintiff’s legal conclusion that Mohiuddin
       was Wolley’s employee or agent, given that Zante owned the taxi. Therefore, Zante’s notice
       to Wolley, without more, would not give rise to a duty to preserve the taxi.
¶ 43        Accordingly, the sixth amended complaint fails to sufficiently show that Taxi Medallion,
       Taxi Affiliation and/or Wolley segregated the taxi for plaintiff’s benefit or knew of plaintiff’s
       request to preserve the evidence. Taxi Medallion, Taxi Affiliation and Wolley’s mere
       possession and control of the taxi, without more, did not give rise to a duty to preserve the
       taxi.
¶ 44        Plaintiff also argues that Taxi Medallion and Taxi Affiliation knew of the protective
       order and, by taking possession of the taxi at the lot they were leasing within two days of the
       accident, they voluntarily assumed a duty to protect and preserve the evidence. “A voluntary
       undertaking requires a showing of affirmative conduct by the defendant evincing defendant’s
       intent to voluntarily assume a duty to preserve evidence.” Martin, 2012 IL 113270, ¶ 31
       (citing Boyd, 166 Ill. 2d at 195). Plaintff “must demonstrate affirmitive conduct by [the
       defendant] showing its intent to voluntarily undertake a duty to the plaintiff[ ].” Martin, 2012
       IL 113270, ¶ 31. There is no factual allegation in the sixth amended complaint that would
       support such a showing. There is no well-pleaded allegation that Taxi Medallion or Taxi
       Affiliation moved the taxi to the Elston lot in order to preserve it for the purpose of potential
       future lititgation, whether for its own investigative purposes or those of plaintiff. There is no
       allegation that Taxi Medallion or Taxi Affiliation moved the taxi there at all. The only
       relevant allegations are that Taxi Medallion leased the lot, Taxi Affiliation paid for the lease
       and Taxi Medallion took possession of the taxi when it moved the taxi onto the lot. These
       allegations do not show “some affirmative acknowledgment or recognition of the duty by the
       party who undertakes the duty” as required for a voluntary undertaking. Martin, 2012 IL
       113270, ¶ 36. Further, when the taxi was moved to the lot on October 8, 2009, plaintiff had
       not yet sent the demand letter, filed her initial complaint or requested the order of protection.
       Therefore, given the lack of any other showing, we infer that Taxi Medallion and Taxi
       Affiliation were not aware of any duty to preserve the taxi at that point. Plaintiff’s complaint
       is not sufficient to support a showing of a voluntary undertaking by Taxi Medallion and Taxi
       Affiliation.
¶ 45        Citing Shimanovsky v. General Motors Corp., 181 Ill. 2d 112 (1998), plaintiff asserts
       that, because defendants were all potential litigants, they had a duty to plaintiff to take
       reasonable measures to preserve the evidence. She asserted that each defendant would have
       or should have known that the taxi’s event data recorder was evidence pertinent to causes of

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       action brought by a passenger critically injured when the taxi crashed as a result of a “sudden
       acceleration” defect. In Shimanovsky, the defendant had moved for imposition of discovery
       sanctions where the plaintiffs had altered a key piece of evidence prior to trial. Martin, 2012
       IL 113270, ¶ 50 (citing Shimanovsky, 181 Ill. 2d at 115). As our supreme court explained in
       Martin, “[p]laintiffs’ argument that the reasoning in Shimanovsky is applicable to a claim for
       negligent spoliation of evidence has been considered, and rejected, previously by this court.”
       Martin, 2012 IL 113270, ¶ 51 (citing Dardeen, 213 Ill. 2d at 339). Accordingly, the test
       applied in Shimanovsky is not relevant here and does not support plaintiff’s argument.
       Martin, 2012 IL 113270, ¶ 51.
¶ 46       Plaintiff’s complaint did not state sufficient facts to show that an agreement, contract,
       statute, special circumstance, or voluntary undertaking gave rise to a duty to preserve the
       event data recorder on the part of Taxi Medallion, Taxi Affiliation or Wolley. It, therefore,
       failed to allege facts sufficient to meet the first prong of the Boyd test with regard to these
       three defendants and they, therefore, had no duty to preserve the recorder. Martin, 2012 IL
       113270, ¶ 53. Because we find plaintiff’s complaint insufficient to support the existence of
       Taxi Medallion, Taxi Affiliation or Wolley’s duty to preserve the recorder under the first
       prong of the Boyd test, we need not address the second prong of the Boyd test with regard to
       these defendants. Martin, 2012 IL 113270, ¶ 53.
¶ 47       On appeal, Taxi Medallion, Taxi Affiliation and Wolley raised the issue of whether the
       sixth amended complaint sufficiently alleged proximate cause to survive a motion to dismiss.
       As we find Taxi Medallion, Taxi Affiliation and Wolley had no duty to preserve the
       evidence, we decline to address this issue.
¶ 48       The court did not err in dismissing plaintiff’s spoliation of evidence claims against Taxi
       Medallion, Taxi Affiliation and Wolley

¶ 49                                     Conclusion
¶ 50      For the reasons stated above, we reverse the trial court’s dismissal of count II against
       Zante and Mohiuddin. We affirm the court’s dismissal of the counts III, IV and V against
       Wolley, Taxi Medallion and Taxi Affiliation.

¶ 51      Reversed in part and affirmed in part.




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