DESTRUCTION OF EVIDENCE

A recent Illinois case reminds us of the importance of preserving evidence of accidents. The case arose when a newspaper carrier fell into a hole in a homeowner's sidewalk, breaking his elbow. After the injury, the homeowner asked her insurer whether she should fix the hole. The insurer said that it was okay to do so, and the homeowner repaired the sidewalk.

Unfortunately, no one took a picture of the sidewalk before the repair, and the injured carrier was unable to show how the hole looked when he fell. He sued the insurance company, claiming that it had a duty to preserve evidence regarding his injuries and, in addition, that it was negligent in approving the repairs to the sidewalk.

According to the Illinois Supreme Court, the insurer had no legal obligation to preserve evidence concerning the slip and fall. Although the insurer had a contract with the homeowner, the newspaper carrier was not a party to that agreement. While the court recognized that the insurer might have an obligation to safeguard evidence under its control, the insurer did not control the sidewalk. Because the insurer owed the carrier no duty to preserve the evidence, it did no wrong in approving the repairs.