This case asks whether Nevada should permit recovery in tort for spoliation of evidence. Appellant Timber Tech Engineered Building Products ("Timber Tech") sued the respondents, The Home Insurance Company ("Home"), Travelers' Casualty & Surety Company ("Travelers"') and Perkins General Contractors, Inc. ("Perkins"), for their failure to preserve certain evidence that was relevant to a separate personal injury action.
The personal injury case arose in 1992 when Red Line Taco, L.V. LTD Partnership, d/b/a Taco Cabana ("Taco Cabana"), hired Perkins as the general contractor for the construction of a restaurant in Las Vegas. Perkins subcontracted with Timber Tech to install trusses for the restaurant's ceiling. On March 21, 1993, the ceiling of the Taco Cabana restaurant suddenly collapsed, and several patrons were injured. The injured patrons sued Taco Cabana, Perkins, Timber Tech and several other parties. As a consequence, Taco Cabana's insurer, Home, and Perkins' insurer, Travelers', became involved in the case.
Shortly after the ceiling collapse, Perkins, Taco Cabana and the Valmar Construction Company, which had installed a decorative ceiling in the restaurant, entered into a preservation of evidence agreement. The agreement provided that the debris from the collapse would be stored in a warehouse until all claims arising from the incident were resolved; Home and Travelers' would bear the cost of storage. Accordingly, the debris was stored in a warehouse for the next three years. In early 1996, however, Home and Travelers' advised the warehouse that they were no longer interested in paying the storage fees. The warehouse disposed of the debris a few months later.
After settling with the injured patrons, Timber Tech brought the instant action against Perkins, Home and Travelers', alleging that it had been harmed as a result of the destruction of the debris. Timber Tech claimed that without the debris it was unable to prove that it was not responsible for the collapse and the injuries sustained by the patrons in the collapse. Timber Tech's complaint contained three claims for relief, entitled "Punitive Damages," "Equitable Indemnification" and "Contribution"; however, each claim sought relief based upon the alleged spoliation of evidence. Both Home and Travelers' filed motions for dismissal, arguing that Nevada does not recognize a tort for spoliation of evidence. The district court granted both motions. Subsequently, Perkins moved for summary judgment, arguing that as a matter of law Timber Tech could not recover from Perkins. The district court granted Perkins' motion as well.
Timber Tech asserts on appeal that it should be permitted to recover in tort against the respondents because they caused Timber Tech harm in the personal injury action by destroying the ceiling debris. Timber Tech concedes that Nevada has yet to recognize an independent tort for spoliation of evidence; however, Timber Tech urges this court to join the minority of jurisdictions that have recognized spoliation of evidence as an independent tort claim.
Whether Nevada should recognize an independent tort for spoliation of evidence is an issue of first impression in Nevada. We review this question of law de novo.
We concur with the reasoning of the California Supreme Court, and accordingly, we decline to recognize an independent tort for spoliation of evidence regardless of whether the alleged spoliation is committed by a first or third party.
Additionally, while Timber Tech asserts that it could also recover under existing common-law negligence, we conclude that a negligence claim for spoliation does not exist under the circumstances presented in this case. Timber Tech cannot succeed on a negligence theory because the respondents never owed a duty to Timber Tech to preserve the ceiling debris. The preservation of evidence agreement did not create a duty in tort between Timber Tech and the respondents. Rather, the preservation of evidence agreement created contractual rights and obligations
Finally, we decline to reach the merits of Timber Tech's contention that it has a viable breach of contract claim based upon the preservation of evidence agreement. Timber Tech neither pleaded breach of contract in its complaint nor raised it in any fashion as an issue in the district court, and therefore, we will not address the issue on appeal.
Accordingly, we affirm the judgment of the district court dismissing Timber Tech's complaint against Home and Travelers' and granting summary judgment in favor of Perkins.
YOUNG and LEAVITT, JJ., concur.