The Fifth District Appellate Court has reversed a St. Clair County ruling, finding for the plaintiffs in a 2002 injury case presided over by former Circuit Judge Michael O'Malley.

In the opinion released Oct. 5, Justices found that Eugene Keeley, owner of building contractor Keeley and Sons, should have kept an I-beam that collapsed into Maxwell Creek near Sparta in 2001 underneath the weight of multiple workers.

O'Malley had granted summary judgment for Keeley and Sons on plaintiffs' spoliation of evidence claims in 2009, finding the company did not purposefully destroy evidence.

Justice James M. Wexstten wrote the opinion reversing O'Malley. Justice Melissa A. Chapman concurred.

"Under the circumstances, one could find that it was reasonable for Eugene to conclude that the beam would not be material to a potential civil action, and arguably, any duty to preserve the beam might have ended after IDOT and OSHA inspected it," Wexstten wrote.

"On the other hand, the I-beam was supporting the scaffolding from which the plaintiffs fell, and Eugene knew that at the very least, workers' compensation claims would stem from the accident."

Because it was debatable whether Keeley should have kept the I-beam, the lower court should not have found a summary judgment in his favor, Wexstten and Chapman ruled.

According to court records, Keeley elected to destroy the I-beam after talking to its manufacturer, co-defendant Egyptian Concrete Company. Egyptian Concrete Company informed Keeley that it could rescue material from the old I-beam to build a new one, the opinion states.

Keeley also claimed he waited to get the okay from the Occupational Safety and Health Administration program before using a jackhammer to break the beam into pieces, removing the beam's reusable steel parts and leaving the remaining bits of the beam in the creek into which it toppled.

When deciding to destroy the beam, Keeley claims he took into consideration the Illinois Department of Transportation's concerns that the beam could cause bridge scouring if left in the creek and his belief that the cause of the accident had been identified.

"Disposing of the beam was 'just a matter of cleaning up the mess,'" Keeley had testified.

However, the plaintiffs argued that Keeley breached his duty to preserve evidence crucial to the accident.

The accident occurred on May 29, 2001, when Terry Martin, Ardith Wynn and Rickey Vanover were helping to install a handrail on a bridge running over Maxwell Creek. As the three men were working on the bridge, they heard a crack or pop, then fell from scaffolding supported by the I-beam into the creek below, according to the opinion.

Eventually, the Illinois Department of Transportation concluded that the I-beam was significantly damaged at the time of the incident and in need of repair.

Justice Stephen L. Spomer disagreed, contending that under Illinois law there is no mandate to preserve evidence "in anticipation of litigation."

By law in Illinois, some third parties are required to keep evidence for investigation purposes, but that should not apply to Keeley and Sons' case, Spomer reasoned.

"In this case, Keeley and Sons did nothing more than allow government agencies to inspect its property in accordance with law," Spomer wrote in his dissent.

"To extend the voluntary-undertaking exception to the owner of the property in question under these circumstances is tantamount to a finding that there is a general duty to preserve evidence in Illinois. I would decline to make a new pronouncement of law in this regard instruction from the legislature or our supreme court."

Mark C. Scoggins and Anthony P. Gilbreth of Crowder & Scoggins in Columbia were among the attorneys representing the plaintiffs.

Dayna L. Johnson and Russell K. Scott of Greensfelder, Hemker & Gale in Swansea were among attorneys representing Keeley and Sons.

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Greensfelder Illinois Department of Transportation

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