Spoilation of Evidence

In a personal injury case, if the defendant destroys evidence, there are two types of claims: (1) Intentional spoilation of evidence, and (2) Negligent spoilation of evidence.

For the plaintiff to establish a cause of action for negligent spoilation of evidence, s/he has to show that s/he reasonably relied on the party to preserve potential evidence. The plaintiff had to establish a duty by the defendants to preserve evidence. For example, if police officers voluntarily assumed responsibility to protect the plaintiff’s prospects for recovery by civil litigation, or their conduct prevented the plaintiff from conducting the plaintiff’s own investigation. Another example, a chair manufacturer, could have a cause of action against a hospital for losing or throwing away a chair if the manufacturer established that the hospital had a duty to maintain or secure the chair.

In determining whether a duty exists, the most important consideration is foreseeability of harm to the plaintiff. Foreseeability is measured by whatever a reasonably thoughtful person would likely take account of in his conduct in the setting of modern life. For example, a janitor throws away an unmarked bag containing a broken bottle, which was placed on top of an attorney’s desk. The bottle was valuable evidence in a product liability action. The janitor may not owe the plaintiff a duty to preserve the evidence. Rather, it was the attorney who was negligent in not maintaining the evidence. The janitor acted reasonably when he removed the bottle, as he would other trash. If the bottle was labeled, and not left lying about, a reasonable janitor would not have destroyed the evidence, which he was normally entitled to assume was garbage.

Other factors in determining duty include: (1) the extent to which the transaction was intended to affect the plaintiff; (2) the degree of certainty that the plaintiff suffered injury; (3) the closeness of the connection between the defendant’s conduct and the injury suffered; (4) the moral blame attached to the defendant’s conduct; and (5) the policy of preventing future harm.

Where spoilation of evidence enables the spoilator to profit from his own wrong, a duty to preserve evidence arises solely from foreseeability of the harm to the plaintiff. Undertaking to preserve evidence is not a prerequisite to liability for intentional spoilation of evidence. Intentional spoilation of evidence occurs when a defendant destroyed or lost evidence s/he knew was essential proof in a civil action. For example, the plaintiff is involved in an auto accident. The defendant agrees with the plaintiff’s attorney to maintain certain automotive parts (physical evidence), pending further investigation. Thereafter, the defendant destroys, loses or transfers the physical evidence, making it impossible for the plaintiff’s experts to pinpoint the cause of the failure of the automotive part.

The elements of intentional spoilation of evidence are analogized to intentional interference with prospective economic advantage. The elements include: (1) pending or probable litigation involving the plaintiff; (2) knowledge by the defendant of the existence or likelihood of the litigation; (3) intentional acts of spoilation, on the part of the defendant, designed to disrupt the plaintiff’s case; (4) disruption of the plaintiff’s case; and (5) damages proximately caused by the acts of defendant.