Two State Supreme Court Reject Independent Tort of Spoliation of Evidence
January, 2003
In two recent cases of first impression, the Supreme Courts of Nebraska and Mississippi each rejected the invitation to recognize a cause of action in tort for spoliation of evidence.
Facts
In Timber Tech Engineered Building Products v. The Home Ins. Co., 55 P.3d 952 (Nev.), Timber Tech installed trusses in the ceiling of a restaurant. The ceiling later suddenly collapsed and several of the restaurant’s patrons were injured. In the personal injury action arising out of the collapse, three defendants (the restaurant, the contractor, and the construction company which had installed a decorative ceiling in the restaurant) entered into a preservation of evidence agreement whereby the debris from the collapse would be stored in a warehouse pending resolution of the claims arising out of the collapse. The insurers of the contractor and the restaurant agreed to bear the cost of the storage. Three years later, however, the insurers advised the warehouse that they would no longer pay the storage fees; a few months later, the warehouse discarded the debris.
After settling the personal injury actions, Timber Tech sued the contractor and the two insurers alleging that it had been harmed by the disposal of the debris because without it Timber Tech was unable to prove that it was not responsible for the ceiling collapse. The insurers moved to dismiss Timber Tech’s claims, all of which sought relief based on the alleged spoliation of evidence, arguing that Nevada does not recognize such a tort. After the court granted the insurers’ motions, the contractor sought, and was granted, summary judgment in its favor as well.
In Dowdle Butane Gas Co., Inc. v. Moore, 831 So. 2d 1124 (Miss.), plaintiff and a gas company employee were injured when an underground propane tank exploded during the gas company’s delivery of propane to the plaintiff’s home. Plaintiff sued the gas company for damages and later added the gas company’s insurer and its investigating propane expert as defendants, alleging that the three defendants intentionally destroyed the propane tank, valves, regulators and gas lines when they removed the tank from his property and conducted destructive testing. Plaintiff claimed that as a result of the defendants’ actions, he was unable to discover the cause of the explosion and was thereby deprived of the ability to recover from the gas company.
Analysis
Both Timber Tech and Dowdle involved first-party (against parties to the underlying litigation) and third-party (against non-parties to the underlying litigation) spoliation claims, and both relied heavily on a recent decision of the California Supreme Court in declining to recognize an independent cause of action for intentional spoliation of either type. In Temple Community Hosp. v. Superior Court, 84 Cal. Rptr. 2d 852 (Cal. 1999), the Supreme Court overruled Smith v. Superior Court, 198 Cal. Rptr. 829 (Cal. App. 1984), which had taken the lead in recognizing a tort remedy for spoliation of evidence. In eliminating both first- and third-party spoliation claims, the Temple court stated:
In sum, we conclude that the benefits of recognizing a tort cause of action, in order to deter third party spoliation of evidence and compensate victims of such misconduct, are outweighed by the burden to litigants, witnesses, and the judicial system that would be imposed by potentially endless litigation over a speculative loss, and by the cost to society of promoting onerous record and other retention policies.
Citing the above language, the Timber Tech court agreed with the reasoning of the Temple court. While the Dowdle court also agreed with the Timber Tech court’s reasoning and holding, its analysis was more extensive. The Supreme Court noted that evidence spoliation has traditionally been handled by remedies such as an instruction to the jury that it may infer that the spoliated evidence is unfavorable to the spoliating party, discovery sanctions, contempt sanctions, and disciplinary sanctions against attorneys who take part in the spoliation. In addition, the Dowdle court noted that Mississippi law includes a criminal sanction for those who destroy evidence. Finding these remedies sufficient to address the evils of spoliation, the court declined to extend them to include a cause of action for intentional spoliation against either first- or third-party spoliators.
Moreover, the Dowdle court noted three additional concerns: first, that there has to be an end to litigation, second, the uncertainty which exists as to whether there has actually been any harm when spoliation is alleged, and third, the cost to defendants who are forced to preserve evidence for indefinite amounts of time in order to avoid future litigation arising out of alleged spoliation. As to the first concern, the court stated that “[w]e should not adopt a remedy that itself encourages a spiral of lawsuits, particularly where sufficient remedies, short of creating a new cause of action, exist for a plaintiff.” As to the second concern, the court noted that the uncertainty lies not only with respect to “the amount of damages caused by the destruction of evidence, but also to the very existence of injury.” Finally, as to the third concern, the court noted that defendants should not be required to bear the potentially enormous expenses associated with long-term retention of evidence. The court concluded:
Nontort remedies for spoliation are sufficient in the vast majority of cases, and certainly, as the California courts learned after 14 years of experience with this tort, any benefits obtained by recognizing the spoliation tort are outweighed by the burdens imposed.
These decisions are consistent with the decisions of the majority of states which have likewise concluded that no such independent tort exists. In fact, only a handful of jurisdictions (including Alaska, the District of Columbia, and Ohio) recognize such a cause of action.
Learning Point:
In the event of spoliation, the plaintiff must look for relief to nontort remedies which exist within the litigation, such as adverse evidentiary inferences and sanctions against the spoliating party.
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