We are called upon to answer certified questions from the Circuit Court of Logan County regarding the viability of independent torts for spoliation of evidence. In the exercise of our discretion, we reformulate the certified questions as follows:
Patricia Hannah is a plaintiff
During discovery, Ms. Hannah produced, at the request of the defendants, an audiotape of the conversation between her and Mr. Heeter. The defendants submitted this audiotape to an expert to determine whether it had been altered. The expert informed the defendants that the audiotape submitted was not the original, and that without the original he was unable to properly analyze the audiotape.
Consequently, the defendants filed a motion to compel production of the original audiotape. At a hearing on this motion, evidence was adduced that when Patricia Hannah moved from her ex-husband's residence, she left the original audiotape there. Ermil Hannah, Patricia Hannah's mother, testified that she lived directly across the street from Patricia Hannah's ex-husband, and that he had contacted her numerous times about the audiotape. Ermil Hannah further testified that her granddaughter, who is Patricia Hannah's daughter, brought her the audiotape, and Ermil Hannah destroyed it in order to avoid further contact with Patricia Hannah's ex-husband.
The defendants thereafter filed a counterclaim against Patricia and Ermil Hannah in which they alleged several causes of action, two of which are negligent and intentional spoliation of evidence. They then filed a motion for partial summary judgment as to liability on the spoliation claims. At a hearing on the motion, the defendants moved the circuit court to certify two questions to this Court concerning the viability of these claims.
STANDARD OF REVIEW
Propriety of Certification
Initially, we must determine whether it is proper for this Court to answer the certified questions under the instant facts. Ms. Hannah asserts that the certified questions should not be accepted because they fail to meet the requirement set forth in Syllabus Point 5 of Bass v. Coltelli, 192 W.Va. 516, 453 S.E.2d 350 (1994),
According to W.Va.Code § 58-5-2 (1998), in part, "[a]ny question of law, including... questions arising upon the ... sufficiency of a motion for summary judgment
We believe that it is proper for this Court to answer the certified questions before us. While these questions do not substantially control the sexual harassment suit filed by the five plaintiffs below, they do substantially control the viability of Mr. Heeter's counterclaims for spoliation. Further, the undisputed facts show that evidence which is relevant to a civil action was destroyed. We conclude, therefore, that the certified questions meet the requirements articulated in Syllabus Point 5 of Bass.
The questions presented concern the viability of torts which this Court previously has not recognized. In considering these issues, we are mindful that "[f]or every wrong there is supposed to be a remedy somewhere." Sanders v. Meredith, 78 W.Va. 564, 572, 89 S.E. 733, 736 (1916). This Court has opined that "[t]he concept of American justice ... pronounces that for every wrong there is a remedy. It is incompatible with this concept to deprive a wrongfully injured party of a remedy[.]" O'Neil v. City of Parkersburg, 160 W.Va. 694, 697, 237 S.E.2d 504, 506 (1977) (citation omitted). See also Gardner v. Buckeye Sav. & Loan Co., 108 W.Va. 673, 680, 152 S.E. 530, 533 (1930) ("It is the proud boast of all lovers of justice that for every wrong there is a remedy."). Accordingly, one of our considerations in answering the certified questions is whether a sufficient remedy already exists for the conduct at issue.
We are also mindful that recognizing tortious conduct as actionable serves additional purposes beyond providing a remedy to the person injured by the tortious conduct. While it is true that "[t]he object of tort law is to provide reasonable compensation for losses[,]" Roberts v. Stevens Clinic Hosp., Inc., 176 W.Va. 492, 504, 345 S.E.2d 791, 803 (1986), additional foundations of tort law are morality and deterrence. See Bart S. Wilhoit, Spoliation Of Evidence: The Viability Of Four Emerging Torts, 46 UCLA L.Rev. 631, 662 (1998) ("It is generally accepted that the three fundamentals of tort law are morality, compensation, and deterrence." (Footnote omitted)). Therefore, in answering the questions before us, we will also consider the level of condemnation and deterrence that may be required as a sufficient response to the conduct at issue. We now proceed to address the specific questions posed in light of these guidelines.
Nonviability of a Tort for Negligent Spoliation by a Party
We answer the first certified question in the negative, and hold that West Virginia does not recognize spoliation of evidence as a stand-alone tort when the spoliation is the result of the negligence of a party to a civil action.
In addition to an adverse inference instruction, the sanctions under our Rules of Civil Procedure for the failure to disclose evidence are potent. "Rule 37 of the West Virginia Rules of Civil Procedure is designed to permit the use of sanctions against a party who refuses to comply with the discovery rules, i.e., Rules 26 through 36." Syllabus Point 1, Shreve v. Warren Assoc., Inc., 177 W.Va. 600, 355 S.E.2d 389 (1987). Specifically, under Rule 37(b)(2) of the West Virginia Rules of Civil Procedure, if a party fails to respond to a request for inspection under Rule 34, the circuit court in which the action is pending may, on motion, enter:
We believe that the adverse inference instruction and the sanctions provided by W.Va.R.C.P. 37 are sufficient remedies when a party to an action negligently fails in his or her duty to preserve relevant evidence.
Viability of a Tort for Negligent Spoliation by a Third Party
We answer the second certified question in the affirmative and hold that West Virginia recognizes spoliation of evidence as a stand-alone tort when the spoliation is the result of the negligence of a third party, and the third party had a special duty to preserve the evidence. Unlike a party to a civil action, a third party spoliator is not subject to an adverse inference instruction or discovery sanctions. Thus, when a third party destroys evidence, the party who is injured by the spoliation does not have the benefit of existing remedies. Such a result conflicts with our policy of providing a remedy for every wrong and compensating victims of tortious conduct. Accordingly, we believe that the negligent spoliation of evidence by a third party ought to be actionable in certain circumstances.
It is generally agreed that recognizing a tort of negligent spoliation against a third party is problematic absent some type of affirmative duty to preserve the evidence. Under our tort law, "[i]n order to establish a prima facie case of negligence in West Virginia, it must be shown that the defendant has been guilty of some act or omission in violation of a duty owed to the plaintiff. No action for negligence will lie without a duty broken." Syllabus Point 1, Parsley v. General Motors Acceptance Corp., 167 W.Va. 866, 280 S.E.2d 703 (1981). However, "there is no general duty to preserve evidence[.]" Smith v. Atkinson, 771 So.2d 429, 433 (Ala.2000). An additional problem arises where the destroyed evidence is the property of the alleged third-party spoliator.
Wilhoit, Spoliation Of Evidence: The Viability Of Four Emerging Torts, 46 UCLA L.Rev. at 671 (footnote omitted). See also Coleman v. Eddy Potash, Inc., 120 N.M. 645, 651, 905 P.2d 185, 191 (N.M.1995), overruled on other grounds by Delgado v. Phelps Dodge Chino, Inc., 131 N.M. 272, 34 P.3d 1148 (N.M.2001), ("We hold that in the absence of [certain enumerated circumstances] a property owner has no duty to preserve or safeguard his or her property for the benefit of other individuals in a potential lawsuit."); Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, 208-209, 734 P.2d 1177, 1179 (1987) ("When negligence is the basis of the suit alleging an economic injury resulting from the destruction of evidence, a duty on behalf of the defendant arising from the relationship between the parties or some other special
Some courts, however, have recognized a cause of action against a third party who negligently destroys evidence when the third party had a special duty to preserve the evidence. For example, in Boyd v. Travelers Ins. Co., 166 Ill.2d 188, 209 Ill.Dec. 727, 652 N.E.2d 267 (1995), the Supreme Court of Illinois declined to create a new tort of spoliation but found that an action for negligent spoliation could be stated under existing negligence law. The court held:
Boyd, 166 Ill.2d at 195, 209 Ill.Dec. at 730-31, 652 N.E.2d at 270-71 (citations omitted). Likewise, in Holmes v. Amerex Rent-A-Car, 710 A.2d 846 (D.C.1998), the District of Columbia Court of Appeals recognized a spoliation tort and applied it to third parties. The court explained:
Holmes, 710 A.2d at 849. We agree with these courts and hold that a duty to preserve evidence for a pending or potential civil action may arise in a third party to a civil action through a contract, agreement, statute, administrative rule, voluntary assumption of duty by the third party, or other special circumstances.
Various elements have been included in a negligent spoliation tort. In Oliver, 297 Mont. at 348, 993 P.2d at 19, the Supreme Court of Montana articulated the following elements:
(1) existence of a potential civil action;
(3) destruction of that evidence;
(7) damages. (Citations omitted).
The Supreme Court of Alabama, in Smith v. Atkinson, 771 So.2d 429, 432-33 (Ala.2000), explained:
Accordingly, we hold that the tort of negligent spoliation of evidence by a third party consists of the following elements: (1) the existence of a pending or potential civil action; (2) the alleged spoliator had actual knowledge of the pending or potential
We emphasize that a third party must have had actual knowledge of the pending or potential litigation. "[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." Smith, 771 So.2d at 433 (citation omitted). In addition,
Smith, 771 So.2d at 434. In proving the element of proximate cause, we adopt the reasoning of the court in Smith that,
771 So.2d at 434. Therefore, a plaintiff in a spoliation claim does not have to file an action in which the spoliated evidence would have been vital to proving or defending his or her case. Instead, he or she simply may show that without the spoliated evidence, a summary judgment would have been entered on behalf of the adverse party in the underlying action.
The determination of damages in a claim for spoliation of evidence is generally considered to be a task fraught with uncertainty and speculation. In fact, a "strong counterargument to compensation [in spoliation cases] is the inherent difficulty of proving the fact of injury in a spoliation suit." Levine, 104 W.Va.L.Rev. at 440 (footnote omitted). Courts have adopted a myriad of methods to assess damages.
Smith, 771 So.2d at 438. Therefore, if a spoliator cannot rebut the presumption that the injured party would have prevailed in the underlying litigation but for the spoliation, the spoliator must compensate the party injured by the spoliation for the loss suffered as a result of his or her failure to prevail in the underlying litigation.
Viability of the Tort of Intentional Spoliation of Evidence
We answer the third certified question in the affirmative and hold that West Virginia recognizes intentional spoliation of evidence as a stand-alone tort when done by either a party to a civil action or a third party. Our reasoning for the need to hold third parties liable for negligently spoliating evidence is also applicable here. That is, recovery under a separate tort is necessary because a third party is not subject to an adverse inference instruction or discovery sanctions. In regard to a party to a civil action, we believe that intentional spoliation of evidence is misconduct of such a serious nature, the existing remedies are not a sufficient response.
For these reasons, intentional spoliation of evidence has been rightly characterized as highly improper and unjustifiable. See Coleman, 120 N.M. at 649, 905 P.2d at 189 ("[T]he intentional destruction of potential evidence in order to disrupt or defeat another person's right of recovery is highly improper and cannot be justified."); Cedars-Sinai Medical Center, 18 Cal.4th at 4, 74 Cal.Rptr.2d at 249, 954 P.2d at 512 (Intentional spoliation of evidence "is a grave affront to the cause of justice and deserves our unqualified condemnation."); Wilhoit, 46 UCLA L.Rev. at 663-64 ("[T]here is a need to condemn a party who takes advantage of the adversarial system by destroying evidence that is essential to an adverse party's lawsuit.... Likewise, in order to preserve the integrity of the adversarial system, courts must deter parties from destroying evidence that may weaken their cases." (Footnote omitted)). Simply put, such highly improper and unjustifiable conduct ought to be actionable.
In defining the parameters of the tort of intentional spoliation of evidence we look to the several states that currently recognize this tort. Intentional spoliation of evidence is defined as "the intentional destruction, mutilation, or significant alteration of potential evidence for the purpose of defeating another person's recovery in a civil action." Coleman, 120 N.M. at 649, 905 P.2d at 189.
Levine, 104 W.Va.L.Rev. at 422 (footnotes omitted). See, e.g., Coleman, 120 N.M. at 649, 905 P.2d at 189 ("In order to prevail on an intentional spoliation of evidence theory, a plaintiff must allege and prove the following: (1) the existence of a potential lawsuit; (2) the defendant's knowledge of the potential lawsuit; (3) the destruction, mutilation, or significant alteration of potential evidence; (4) intent on part of the defendant to disrupt or defeat the lawsuit; (5) a causal relationship
Therefore, we hold that the tort of intentional spoliation of evidence consists of the following elements: (1) a pending or potential civil action; (2) knowledge of the spoliator of the pending or potential civil action; (3) willful destruction of evidence; (4) the spoliated evidence was vital to a party's ability to prevail in the pending or potential civil action; (5) the intent of the spoliator to defeat a party's ability to prevail in the pending or potential civil action; (6) the party's inability to prevail in the civil action; and (7) damages. Once the first six elements are established, there arises a rebuttable presumption that but for the fact of the spoliation of evidence, the party injured by the spoliation would have prevailed in the pending or potential litigation. The spoliator must overcome the rebuttable presumption or else be liable for damages.
We caution that the party injured by spoliation must show more than the fact that potential evidence was intentionally destroyed. The gravamen of the tort of intentional spoliation is the intent to defeat a person's ability to prevail in a civil action. Therefore, it must be shown that the evidence was destroyed with the specific intent to defeat a pending or potential lawsuit. "The intent with which tort liability is concerned... is an intent to bring about a result which will invade the interests of another in a way that the law forbids." Prosser & Keeton on Torts, § 8 at 36 (5th ed.1984). See also Torres v. El Paso Elec. Co., 127 N.M. 729, 987 P.2d 386, 405 (N.M.1999) ("[W]e believe that the tort recognized in Coleman [v. Eddy Potash, Inc., supra] seeks to remedy acts taken with the sole intent to maliciously defeat or disrupt a lawsuit.").
The rule for the determination of compensatory damages in intentional spoliation actions shall be the same as that set forth above for use in actions where evidence was negligently spoliated by a third party. Finally, in addition to compensatory damages, punitive damages may be awarded in cases where evidence was intentionally spoliated. This Court has held:
Syllabus Point 4, in part, Mayer v. Frobe, 40 W.Va. 246, 22 S.E. 58 (1895). This Court has recognized that punitive damage awards achieve a number of important objectives. "Among the primary ones are: (1) to punish the defendant; (2) to deter others from pursuing a similar course; and, (3) to provide additional compensation for the egregious conduct to which the plaintiff has been subjected." Harless v. First Nat. Bank in Fairmont, 169 W.Va. 673, 691, 289 S.E.2d 692, 702 (1982). These objectives certainly may be applicable when a person intentionally destroys evidence for the purpose of defeating a lawsuit.
For the reasons set forth above, we answer the certified questions as follows:
1. Whether West Virginia recognizes spoliation of evidence as a stand-alone
Certified Questions Answered.
Further, "there appears to be a trend away from acceptance of the tort among jurisdictions, at least when such a claim is brought against an adverse party to the original suit." Levine, 104 W.Va.L.Rev. at 421-22 (footnote omitted).
Holmes, 710 A.2d at 853.
198 W.Va. at 386-87, 480 S.E.2d at 825-26.