"Amicus" Brief Supporting Successful Appeal to Illinois Supreme Court Authored by Michael Resis

November 2012


Michael Resis, chair of the firm’s Appellate Practice Group, authored an amicus brief leading to a successful appeal of a decision involving negligent spoliation of evidence. At issue was whether the defendant, a general contractor, had a duty to preserve a concrete I-beam following an accident that injured multiple employees. The amicus brief was filed on behalf of the Illinois Association of Defense Trial Counsel. Mike is the chair of the Amicus Committee for this bar organization.

The contractor destroyed the I-beam after the Illinois Department of Transportation (IDOT) and the Occupational Safety and Health Administration (OSHA) examined the beam.

In Martin v. Keeley & Sons, Inc., 2012 IL 113270, the Illinois Supreme Court reversed the appellate court and held that the general contractor did not assume a voluntary duty to preserve a concrete I-beam by allowing on-site inspection and investigation by IDOT and OSHA following the injuries.

Mike’s brief provided support for the appellant that the contractor’s mere possession and control of the I-beam did not rise to the level of an affirmative undertaking to preserve the I-beam and that the exclusive possession and control were not “special circumstances” that gave rise to a duty. Additionally, neither the contractor’s status as the plaintiffs’ employer nor as a potential litigant was a “special circumstance” which supported a cause of action for negligent spoliation of evidence.