The United States District Court for the Middle District of Alabama has certified to this Court the following questions, acting pursuant to Rule 18, Ala. R.App. P.: "(1) Does Alabama recognize a cause of action for the independent tort of spoliation of evidence against a third party? and (2) If so, what are the elements of that tort?"
The district court's order certifying its questions provides the following background information: On July 20, 1996, William Smith ("Smith"), his wife Monica Smith, and his two children, Alexandria and Chris, were traveling south on U.S. Highway 231 in Montgomery County in a minivan manufactured by Chrysler Corporation. The minivan was struck by another vehicle, which was being driven by Richard Ferguson. As a result of the collision, Monica Smith suffered injuries that caused her death; the remaining three passengers in the minivan suffered bodily injuries.
At the time of the collision, Smith had in full force and effect an automobile insurance policy with Metropolitan Property and Casualty Insurance Company ("Metropolitan") that included a provision for underinsured-motorist coverage. Smith filed a claim on the Metropolitan policy. Carl Atkinson, a claims adjuster, handled the claim for Metropolitan.
After the accident, Metropolitan took possession of the minivan and arranged to have it delivered to the company's storage facility in Montgomery. Subsequently, Smith began investigating a potential products-liability action against Chrysler Corporation, based on the theory that the minivan in which his wife was killed was defective. On four separate occasions, Smith informed Atkinson and Metropolitan that he intended to bring an action against Chrysler and requested that they preserve the minivan for further inspection. On each occasion, Atkinson agreed to retain the vehicle at the Metropolitan storage facility for Smith's use and inspection. On October 4, 1996, Smith executed a power of attorney to transfer the minivan's title to Metropolitan. At some point thereafter, Smith alleges, Metropolitan, after assuring him the minivan would be preserved for his inspection, negligently allowed the minivan to be destroyed before it could be inspected by Smith or his expert.
Smith sued Ferguson and Metropolitan under the underinsured-motorist provision of his automobile insurance policy. On or about September 26, 1997, in exchange for a pro tanto settlement of $150,000, Smith obtained the circuit court's approval and executed documents releasing Metropolitan and Ferguson. Smith specifically released
On July 17, 1998, Smith sued Atkinson and Metropolitan (hereinafter those defendants will be referred to together as "Metropolitan") in the Montgomery Circuit Court. The defendants removed the case to the United States District Court for the Middle District of Alabama, on the basis of diversity jurisdiction. Relying on the pro
The district court's certified questions require us to decide whether Alabama recognizes a cause of action for an independent tort of evidence spoliation. This Court has refused to recognize such a cause of action when the spoliator was a defendant in an action—that included a tort claim other than the alleged spoliation —filed by a plaintiff whose evidence was lost or destroyed. See Christian v. Kenneth Chandler Constr. Co., 658 So.2d 408, 413 (Ala.1995). Under the facts of this case, however, the question whether a remedy exists for one whose evidence was lost or destroyed through the acts of a third party (i.e., a party not alleged to have committed the underlying tort as to which the lost or destroyed evidence related) is squarely before us.
The Supreme Court of Illinois has written: "Courts have long afforded redress for the destruction of evidence and, in our opinion, traditional remedies adequately address the problem presented in this case. An action for negligent spoliation can be stated under existing negligence law without creating a new tort." Boyd v. Travelers Ins. Co., 166 Ill.2d 188, 193, 652 N.E.2d 267, 270, 209 Ill.Dec. 727, 730 (1995). We agree with the majority of states that have resolved this issue and conclude that general principles of Alabama law afford a plaintiff an adequate remedy. Therefore, we see no need to recognize a new cause of action for spoliation of evidence.
As in all negligence actions, the plaintiff in a third-party spoliation case must show a duty to a foreseeable plaintiff, a breach of that duty, proximate causation, and damage. Crowne Invs., Inc. v. Bryant, 638 So.2d 873, 878 (Ala.1994). We announce today a three-part test for determining when a third party can be held liable for negligent spoliation of evidence. In addition to proving a duty, a breach, proximate cause, and damage, the plaintiff in a third-party spoliation case must also show: (1) that the defendant spoliator had actual knowledge of pending or potential litigation; (2) that a duty was imposed upon the defendant through a voluntary undertaking, an agreement, or a specific request; and (3) that the missing evidence was vital to the plaintiffs pending or potential action. Once all three of these elements are established, there arises a
Although there is no general duty to preserve evidence, "Alabama clearly recognizes the doctrine that one who volunteers to act, though under no duty to do so, is thereafter charged with the duty of acting with due care and is liable for negligence in connection therewith." Dailey v. City of Birmingham, 378 So.2d 728, 729 (Ala.1979).
A California District Court of Appeal has clarified the duty element of California's tort of negligent spoliation, in Johnson v. United Services Automobile Association, 67 Cal.App.4th 626, 79 Cal.Rptr.2d 234 (1998), and, although we decline to adopt California's negligent-spoliation tort in its entirety, we are persuaded by that court's rationale for the method by which the plaintiff in a negligent-spoliation case is to establish the existence of a duty on the part of the defendant. In addition to the voluntary assumption of a duty, mentioned above, the Johnson court recognized two additional ways a duty could be imposed upon a third party:
67 Cal.App.4th at 635, 79 Cal.Rptr.2d at 239 (citations omitted). We also agree with Johnson that a third party's constructive notice of a pending or potential action is not sufficient to force upon the third party the duty to preserve evidence. Id., 67 Cal.App.4th at 635, 79 Cal.Rptr.2d at 240. "Limiting the usual duty in third-party negligent spoliation to an agreement to preserve, or a voluntary undertaking with reasonable and detrimental reliance, or a specific request, ensures that such a spoliator has acted wrongfully in a specifically identified way." Id., 67 Cal.App.4th at 637, 79 Cal.Rptr.2d at 241.
Metropolitan argues that imposing on a third party a duty to preserve evidence could result in wasteful and unnecessary record- and evidence-retention practices.
For the purpose of answering these certified questions, we assume that a duty of care was owed to Smith and that the duty was breached by the destruction of the minivan. However, absent the existence of such a duty, Smith would have no cause of action for spoliation.
C. Proximate Cause
Not every piece of lost or destroyed evidence should lead to a cause of action for negligent spoliation. Where the destruction or loss of evidence defeats any chance of the plaintiffs recovering in the underlying action, we conclude that the plaintiff deserves recourse for such a loss. Therefore, under a claim for negligent spoliation, the defendant's breach must be the proximate cause of the plaintiffs inability to file, or to win, the underlying lawsuit. Other courts that have recognized spoliation within the context of traditional causes of action have required a plaintiff to show that the "defendant's loss or destruction of the evidence caused the plaintiff to be unable to prove an otherwise valid, underlying cause of action." Boyd v. Travelers Ins. Co., supra, 166 Ill.2d at 197, 652 N.E.2d at 272, 209 Ill.Dec. at 731. In our opinion, the "otherwise valid" language places too heavy a burden on the plaintiff. Without the lost or destroyed evidence, the plaintiff cannot show that the underlying claim was valid. The Appellate Court of Illinois, in Petrik v. Monarch Printing Corp., 150 Ill.App.3d 248, 264, 501 N.E.2d 1312, 1322, 103 Ill.Dec. 774, 784 (1986), referring to this language, found that "[s]uch a showing would be nearly impossible because judges or juries cannot evaluate the value of evidence that they cannot see." Therefore, we conclude that, in order for a plaintiff to show proximate cause, the trier of fact must determine that the lost or destroyed evidence was so important to the plaintiffs claim in the underlying action that without that evidence the claim did not survive or would not have survived a motion for summary judgment under Rule 56, Ala. R. Civ. P. Metropolitan argues that a plaintiff, in order to be able to file an action alleging spoliation of evidence against a third party, must first file an action pursuing the underlying cause of action and be denied a recovery in that underlying action. We disagree. If we use the summary-judgment standard as a guide, there will be no need for a plaintiff to waste valuable judicial resources by filing a futile complaint and risking sanctions for filing frivolous litigation. The plaintiff can rely upon either a copy of a judgment against him in an underlying action or upon a showing that, without the lost or destroyed evidence, a summary judgment would have been entered for the defendant in the underlying action.
For those cases hinging upon one particular piece of evidence, the loss of that evidence through the tortious acts of a third party adds an additional injury to an already-injured plaintiff by eliminating his opportunity to seek a remedy against the initial tortfeasor. Smith alleges that Chrysler defectively designed a product and that the defect in that product caused the death of his wife, but that because of Metropolitan's alleged actions, he will be unable to pursue any claims against Chrysler. The fact that Metropolitan is a third party should not deprive Smith of his day in court.
Smith has not filed an action against Chrysler, apparently because Metropolitan allowed the destruction of the minivan that Smith contends was defective. In Alabama, a products-liability claim relating to a defective automobile is properly disposed of on a motion for summary judgment if the automobile in question is not available and the plaintiff has no other means of proving the alleged defect. See Capitol Chevrolet, Inc. v. Smedley, 614 So.2d 439 (Ala.1993). "Proof of an accident and injury is not in itself sufficient to establish liability under the AEMLD; a
Once a plaintiff has established that the third party had knowledge of the underlying action or potential action, that the third party assumed control over the evidence, and that the lost or destroyed evidence was "vital" to his claim in the underlying action or potential action, a rebuttable presumption arises in favor of the plaintiff. Our treatment here of the effect of spoliation is similar to the rationale set forth in a dissenting opinion in a case involving alleged spoliation by an adverse party in an action presenting a tort claim other than the spoliation, Alabama Power Co. v. Murray, 751 So.2d 494, 504 (Ala.1999) (Lyons, J., dissenting):
This burden-shift derives from the rationale set forth by the United States Court of Appeals for the Sixth Circuit in Welsh v. United States, 844 F.2d 1239, 1248 (6th Cir.1988). Although the burden-shift adopted by the court in Welsh involved spoliation by a party to the original tort rather than by a third party, its reasoning remains sound in this context:
Id. at 1249 (citation omitted).
The rebuttable presumption we adopt for use in third-party spoliation cases is "[a] presumption affecting the burden of proof by imposing upon the party against whom it operates the burden of proving the nonexistence of the presumed fact." Rule 301(b)(2), Ala. R. Evid.; see Charles W. Gamble, McElroy's Alabama Evidence § 451.05(a) (5th ed.1996). The presumed fact is that the plaintiff would have prevailed in the underlying action but for the loss or destruction of the evidence by the third-party spoliator. The third party can overcome the presumption by producing evidence showing that the plaintiff would not have prevailed in the underlying action even if the lost or destroyed evidence had been available. In this present case, if Smith establishes a prima facie case of negligent spoliation, it will be presumed that he would have prevailed in a products-liability action against Chrysler. If that presumption is in place, Metropolitan will have the burden of proving that Smith would not have prevailed on the merits of his products-liability action against Chrysler even if the minivan had not been destroyed.
To illustrate further, assume that the plaintiff in a products-liability action alleges that the front wheel of an automobile separated from the vehicle during operation and that the separation caused a serious accident. Further assume that the garage to which the vehicle was towed was
Just as the plaintiff in a negligent-spoliation action must prove the other three elements of a negligence action (duty, breach, and proximate cause), such a plaintiff also must prove damage. The appropriate measure of damages is difficult to determine in spoliation cases because, without the missing evidence, the likelihood of the plaintiffs prevailing on the merits cannot be precisely determined. "It would seem to be sheer guesswork, even presuming that the destroyed evidence went against the spoliator, to calculate what it would have contributed to the plaintiffs success on the merits of the underlying lawsuit." Petrik v. Monarch Printing Corp., supra, 150 Ill.App.3d 248, 260, 501 N.E.2d 1312, 1320, 103 Ill.Dec. 774, 782 (1987). However, courts have long recognized the need to remedy a wrong despite the fact that a proper award of damages is difficult to determine.
Id., 150 Ill.App.3d at 261, 501 N.E.2d at 1321, 103 Ill.Dec. at 783, quoting Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264-65, 66 S.Ct. 574, 90 L.Ed. 652 (1946). "`The wrongdoer is not entitled to complain that [damages] cannot be measured with the exactness and precision that would be possible if the case, which he alone is responsible for making, were otherwise.'" Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563, 51 S.Ct. 248, 75 L.Ed. 544 (1931), as quoted in American Life Ins. Co. v. Shell, 265 Ala. 306, 311, 90 So.2d 719, 723 (1956).
Id. If the lost or destroyed evidence is vital to a party's claim or defense and the evidence was lost or destroyed through no fault of the innocent party, the wrongdoer should bear the risk.
The burden-shifting approach we adopt today puts us on a different footing from that of the states that have already adopted a remedy for negligent spoliation of evidence. The different options available for determining damages in a spoliation action were reviewed in Holmes v. Amerex Rent-A-Car, 710 A.2d 846, 853 (D.C.1998), where the court observed:
Holmes, 710 A.2d at 853.
Because the approach we adopt today to this cause of action is distinct from
Any punitive damages that would have been rendered against the original tortfeasor in the underlying litigation should not be included in the plaintiff's recovery for negligent spoliation. It would be wholly unjust to punish a merely negligent party by imposing punitive damages for which the tortfeasor in the underlying claim would have been liable. "Punitive damages are not awarded because the injured party is entitled to them as a matter of right; they are awarded as a punishment to the wrongdoer and to deter him and others in the same or similar situation from such wrongdoing in the future." City Bank of Alabama v. Eskridge, 521 So.2d 931, 933 (Ala.1988). However, if the spoliator is found to have acted willfully or wantonly in the destruction of the evidence, then punitive damages can be levied against the spoliator in an amount adequate to punish the spoliator for its misconduct and to deter others in similar situations.
Jury charges that presume missing evidence weighs against the spoliator, and discovery sanctions, both of which are available when spoliation is charged against an opposing party, are not available to remedy the injustice caused by spoliation when the spoliator is a third party. However, "`[t]he most elementary conceptions of justice and public policy require [that] the wrongdoer shall bear the risk of the uncertainty which his own wrong has created.'" Petrik, 150 Ill. App.3d at 261-62, 501 N.E.2d at 1321, 103 Ill.Dec. at 783, quoting Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 265, 66 S.Ct. 574, 90 L.Ed. 652 (1946). Thus, the risk associated with the loss or destruction of evidence entrusted to a third party must be borne by the third party. When a third party deprives another of his day in court, through tortious destruction of indispensable evidence, that third party commits a wrong; that wrong deserves a remedy, and the fact that damages will be difficult to determine should not preclude a recovery. Therefore, we hold that liability may be imposed on a third party liable for negligent spoliation of evidence, based upon general principles of Alabama law and under the procedures for establishing such liability that we have established in this opinion.
HOOPER, C.J., and MADDOX, HOUSTON, COOK, JOHNSTONE, and ENGLAND, JJ., concur.
BROWN, J., concurs in the result.
SEE, J., dissents.
SEE, Justice (dissenting).
The main opinion answers in the affirmative the certified question whether Alabama recognizes a cause of action for spoliation of evidence by a third party. It establishes as the elements of that cause of action, in addition to the elements of a negligence cause of action, a complicated
In Peek v. State Auto Mutual Insurance Co., 661 So.2d 737, 738 (Ala.1995), this Court declined, under the particular facts of that case, to consider "whether [it] should recognize a spoliation of evidence cause of action against third parties who did not directly cause the destruction of [evidence]." In the related case of Christian v. Kenneth Chandler Constr. Co., 658 So.2d 408, 413 (Ala.1995), this Court refused to recognize a separate tort of spoliation of evidence in a first-party situation, where the alleged spoliator was a party to the underlying action. In Christian, this Court stated that "[a]lthough a few jurisdictions have recognized a new independent tort based on spoliation of evidence, the majority of courts considering the issue have declined to adopt such a new cause of action." Id. (footnotes omitted).
It appears that a small number of jurisdictions recognize an independent tort of spoliation of evidence in first-party situations or in third-party situations, or in both. See, e.g., Hazen v. Municipality of Anchorage, 718 P.2d 456 (Alaska 1986) (recognizing the tort of intentional spoliation of evidence by a party); Holmes v. Amerex Rent-A-Car, 710 A.2d 846 (D.C. 1998) (recognizing the tort of negligent or reckless spoliation of evidence by a third party); Bondu v. Gurvich, 473 So.2d 1307 (Fla.Dist.Ct.App.1984) (recognizing the tort of negligent spoliation of evidence by a third party); Coleman v. Eddy Potash, Inc., 120 N.M. 645, 905 P.2d 185 (1995) (recognizing the tort of intentional spoliation of evidence by a third party and declining to recognize the independent tort of negligent spoliation of evidence); Smith v. Howard Johnson Co., 67 Ohio St.3d 28, 615 N.E.2d 1037 (1993) (recognizing a tort of spoliation of evidence by a party and against a third party); see also Eric Marshall Wilson, Recent Case, The Alabama Supreme Court Sidesteps a Definitive Ruling in Christian v. Kenneth Chandler Construction Co.: Should Alabama Adopt the Independent Tort of Spoliation?, Ala. L.Rev. 971, 977-80 (1996) (identifying 9 states that have recognized the independent tort of spoliation of evidence and 15 states that have rejected it). However, a larger number of jurisdictions do not recognize the tort. See, e.g., La Raia v. Superior Court, 150 Ariz. 118, 722 P.2d 286 (1986) (refusing to recognize the independent tort of intentional spoliation of evidence by a party); Wilson v. Beloit Corp., 921 F.2d 765, 767 (8th Cir.1990) (applying Arkansas law and holding that Arkansas does not recognize the tort); Temple Community Hosp. v. Superior Court, 20 Cal.4th 464, 976 P.2d 223, 84 Cal.Rptr.2d 852 (1999)(refusing to recognize the independent tort of intentional spoliation of evidence by a third party); Meyn v. State, 594 N.W.2d 31 (Iowa 1999)(refusing to recognize the independent tort of spoliation of evidence by a third party); Weigl v. Quincy Specialties Co., 158 Misc.2d 753, 601 N.Y.S.2d 774, 776 (Sup.Ct.1993) (stating that "the majority of jurisdictions refuse to recognize such a cause of action" (citations omitted) and that "[t]he Courts of New York follow the majority view and do not recognize spoliation of evidence as a cognizable tort action"); Trevino v. Ortega, 969 S.W.2d 950, 951 (Tex.1997) (declining to recognize the
Several years after a California District Court of Appeal, in Smith v. Superior Court, 151 Cal.App.3d 491, 198 Cal.Rptr. 829 (1984), had become the first court to recognize the tort of intentional spoliation of evidence by a third party, the Supreme Court of California joined the majority of jurisdictions and held that California does not recognize the tort of spoliation of evidence either by a party or by a third party. See Cedars-Sinai Med. Ctr. v. Superior Court, 18 Cal.4th 1, 954 P.2d 511, 74 Cal.Rptr.2d 248 (1998); Temple Community Hosp. v. Superior Court, 20 Cal.4th 464, 976 P.2d 223, 84 Cal.Rptr.2d 852 (1999). In Temple Community Hospital, the Supreme Court of California, relying on its decision in Cedars-Sinai, summarized its rationale for not recognizing a tort of spoliation of evidence by a third party:
20 Cal.4th at 477-78, 976 P.2d at 232-33, 84 Cal.Rptr.2d at 861-62. I find the rationale of the Supreme Court of California in Temple Community Hospital persuasive, and, therefore, agree with the majority of jurisdictions that have refused to recognize the independent tort of spoliation of evidence by third parties. Accordingly, I would answer the certified question in the negative.