We have for review the decision in Martino v. Wal-Mart Stores, Inc., 835 So.2d 1251 (Fla. 4th DCA 2003), which certified conflict with the decision in Bondu v. Gurvich, 473 So.2d 1307 (Fla. 3d DCA 1984). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
In March 1997, petitioner Ronna Martino (Martino) went to a Wal-Mart store in Royal Palm Beach. In addition to other items, Martino placed two forty-pound bags of salt in her shopping cart. When checking out, Martino placed all of her items except the bags of salt on the counter for the cashier. According to Martino's testimony, the cashier then asked Martino to lift up the bags of salt so that the cashier could scan the price code. Martino attempted to comply with the cashier's request, placing one bag of salt on the top of the shopping cart where a child would sit. As she placed the salt on top of the shopping cart, the cart collapsed, and Martino injured her arm. Martino then completed the sale and went home.
Martino testified that once she returned home, she called the Wal-Mart store and asked to speak to the manager. Her call was answered by the assistant manager, who advised her to go to the hospital to have her arm checked and then return to Wal-Mart to fill out an incident report. Martino testified that during the conversation with Wal-Mart's assistant manager, Martino informed him where he could find the shopping cart in the parking lot.
After her visit to the hospital, Martino returned to Wal-Mart and filled out an incident report. Martino testified that while she was at the store, she showed the assistant manager where the shopping cart was in the parking lot and requested that he obtain the videotape of the incident from the surveillance camera inside the store.
Thereafter, on August 26, 1999, Martino brought an action against Wal-Mart, alleging that Wal-Mart was negligent in its inspection and maintenance of the store's shopping carts (the "negligent maintenance" theory) and in failing to properly train store employees regarding appropriate procedures for scanning and customer handling of heavy items (the "negligent mode of operation" theory). Martino's husband also asserted a claim for loss of consortium.
During discovery, Martino requested the shopping cart and a copy of the video surveillance tape. When Wal-Mart could not produce either item, Martino filed a second amended complaint, alleging a separate claim for spoliation of evidence. Wal-Mart thereafter filed a motion to dismiss Martino's claim for spoliation of evidence, asserting that Martino's complaint failed to state a cause of action because Martino failed to allege ultimate facts indicating that Wal-Mart had a legal or contractual duty to preserve the evidence. The trial court granted Wal-Mart's motion
The case then proceeded to trial on Martino's negligence claims.
Martino appealed the trial court's decision to the Fourth District Court of Appeal, arguing that (1) the trial court erred in granting Wal-Mart's motion to dismiss Martino's spoliation-of-evidence claim; (2) the trial court erred in granting a directed verdict in Martino's negligent maintenance claim because there was an adverse inference that the shopping cart and videotape would have been unfavorable to Wal-Mart that should have been drawn from Wal-Mart's failure to produce the shopping cart and videotape; and (3) the trial court erred in granting a directed verdict on the negligent mode of operation claim.
With respect to the first claim, the Fourth District framed the issue to be:
Martino, 835 So.2d at 1254. The Fourth District concluded that when the defendant who allegedly caused the spoliation of evidence is also the defendant who allegedly committed the underlying tort causing injury or damages, the plaintiff cannot maintain a cause of action against that defendant for damages on the basis of spoliation of evidence.
The Fourth District certified conflict with Bondu, in which the Third District Court of Appeal held that a first-party
Id. In the instant case, the Fourth District stated:
Martino, 835 So.2d at 1256. In reaching its decision, the Fourth District relied upon the California Supreme Court decision in Cedars-Sinai Medical Center v. Superior Court, 18 Cal.4th 1, 74 Cal.Rptr.2d 248, 954 P.2d 511 (1998). In Cedars-Sinai, the California court rejected cases from lower California appellate courts which had approved a first-party spoliation cause of action. One of the cases Cedars-Sinai overruled was Smith v. Superior Court, 151 Cal.App.3d 491, 198 Cal.Rptr. 829 (1984), which had been relied upon by the Third District in Bondu.
On issue two, Martino's negligent maintenance claim, the Fourth District agreed with Martino that a proper consideration of the "adverse inferences" which may arise when a party fails to produce pertinent evidence within its control required that the negligent maintenance claim in this case be presented to the jury. On issue three, Martino's negligent mode of operation claim, the Fourth District also agreed with Martino that the trial court erred in directing a verdict on behalf of Wal-Mart.
In this opinion, we only consider the issue on which conflict was certified: whether an independent cause of action should exist for first-party spoliation of evidence. We addressed a similar issue in Public Health Trust of Dade County v. Valcin, 507 So.2d 596 (Fla.1987).
In Valcin, the plaintiff sued the defendant hospital for, inter alia, its negligent performance of a sterilization procedure. The Third District found that "the lack of an `operative report' by the surgeon in Valcin's file impaired the expert's ability to determine whether the operation had been performed with due care," and thus Valcin had been hindered in proving a prima facie case of negligence against the defendant hospital. Id. at 597. The Third District created a set of presumptions which were to apply so that the plaintiff could still maintain the negligence action against the defendant despite the absence of this key evidence. If the defendant demonstrated that the loss of evidence was only negligent, a rebuttable presumption that the defendant was negligent in the underlying action was to apply. If the loss was intentional, however, a conclusive, irrebuttable presumption of negligence was to be entered against the defendant. Id. at 598.
On appeal, this Court held that "the rules fashioned by [the district] court sweep wider than necessary." Id. at 599. First, we held that when evidence was intentionally lost, misplaced, or destroyed by one party, trial courts were to rely on sanctions found in Florida Rule of Civil Procedure 1.380(b)(2) and that "a jury could well infer from such a finding that the records would have contained indications of negligence." Id.; see Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983) (willful
Interestingly, the Third District released its decisions in Valcin and Bondu, the case certified for conflict with the instant case that recognized an independent cause of action for spoliation of evidence, on the same day, June 5, 1984, and denied rehearing in both cases on the same day, August 20, 1985. Though they dealt with substantially the same issue, these two cases were distinguishable because of the plaintiffs' different forms of requested relief from summary judgment. In order to avoid summary judgment, Bondu attempted to amend her complaint against the hospital to add a spoliation of evidence claim and had also filed a separate cause of action for spoliation. She was denied leave to amend her complaint in the first case, and a judgment on the pleadings was entered against her in the separate action. In Valcin, the plaintiffs were simply appealing from a summary judgment of the underlying tort action against the hospital.
The Third District did not note this distinction between the two cases in deciding that in Bondu there was a cause of action and in Valcin there was a presumption which was to be applied in the underlying action. We did not review the Third District's decision in Bondu or reference the Bondu decision in our opinion in Valcin. Now that we consider whether the remedy against a first-party defendant for spoliation of evidence should be the Valcin presumption and sanctions, if found to be necessary, or an independent cause of action, we decide in favor of the Valcin presumption and sanctions. Martino has not demonstrated that there is any need to change our reliance on the Valcin presumption and instead recognize an independent cause of action for first-party spoliation of evidence. We disapprove Bondu to the extent that it conflicts with this decision.
In sum, for reasons stated in this opinion, we approve the Fourth District's dismissal of the cause of action for spoliation of evidence. This case is remanded to the district court for further proceedings consistent with this opinion.
It is so ordered.
WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.
WELLS, J., concurs specially with an opinion, in which BELL, J., concurs.
PARIENTE, C.J., recused.
WELLS, J., specially concurring.
I concur with the majority's opinion and reasoning in affirming the Fourth District Court of Appeal's decision that there is no separate cause of action against a first-party defendant for spoliation of evidence. In instances in which it is demonstrated that a first-party defendant has a duty by reason of statute, regulation, court order, or discovery rule to maintain and preserve
However, in the instant case, I believe that in addition to the decision that no cause of action exists, there should be no use of the Valcin presumption or sanctions because Wal-Mart had no duty to maintain or preserve the cart or videotape. In this case there was no statute or regulation which required Wal-Mart to preserve the evidence. Suit was not filed for two years after the incident at the Wal-Mart store, and during that two-year period, no court order or discovery rule required Wal-Mart to maintain or preserve the cart or videotape.
For this reason, I disagree with the majority's decision not to decide the related issue of whether the Fourth District Court of Appeal's decision to reverse the trial court's directed verdict for Wal-Mart on the negligent maintenance theory was proper. I would decide that issue and quash the decision of the Fourth District.
It is fundamental to the entire legal basis for spoliation of evidence that the owner or possessor of property have a legally defined duty to maintain or preserve the property. Both Valcin and Bondu v. Gurvich, 473 So.2d 1307 (Fla. 3d DCA 1984), clearly recognized as their foundation the statutory and regulatory duty to maintain hospital records. Unless there is a legally defined duty, I believe that presumptions or sanctions against owners or possessors of property for spoliation of evidence have serious due process concerns under both the United States and Florida Constitutions. See U.S. Const. amend. V & XIV; art. I, § 9, Fla. Const. Both constitutions expressly protect the freedom to use property, and this necessarily includes the freedom to dispose of property, unless there is a legally defined duty requiring maintenance or preservation of the property.
One law review article succinctly stated the importance of the existence of a duty to maintain evidence in these situations:
Robert D. Peltz, The Necessity of Redefining Spoliation of Evidence Remedies in Florida, 29 Fla. St. U.L.Rev. 1289, 1320 (2002). The Supreme Court of Kansas made the point in Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, 734 P.2d 1177, 1181-82 (1987):
It appears to me that the district court in its decision in the instant case attempts
Martino, 835 So.2d at 1257. I have carefully read the Fourth District's earlier decision in New Hampshire Insurance Co., to which it cites, and I do not find a basis for the above statement in that case. Nor have I found any other authority for that statement. To the contrary, New Hampshire Insurance Co. had to do with the failure to produce an insurer's underwriting file in an instance in which the court had ordered the underwriting file to be produced. The Fourth District expressly held in that case that Valcin provided the remedy. The Fourth District in that case in no way dispensed with the duty basis for the Valcin presumption, sanctions, or adverse inferences.
I understand that there is a real need by those who are injured to have evidence preserved so that claims can be pursued. I recognize that the freedom to use property should be tempered by this need. However, just as tort claims have duty as a fundamental element, so must any presumptions, sanctions, or adverse inferences arising from failure to maintain or preserve property have duty as a basis. This Court has historically only recognized such a duty when there is a statute, regulation, court order, or discovery rule which provides the duty. Valcin, 507 So.2d at 601; Mercer v. Raine, 443 So.2d 944, 945 (Fla. 1983).
This is an exceedingly important issue which should be confronted by this Court. Businesses as well as individuals must have regular record and property disposition policies. Obviously, storage space, both in warehouses and in computers, have finite limits. Practically, what was Wal-Mart to do when it was notified by Martino in March 1997? Was Wal-Mart to take the cart out of service? Was Wal-Mart to store the cart? How many warehouses would it take to store all of the property involved for the four-year statute of limitations period when Wal-Mart receives a notice of a possible claim?
BELL, J., concurs.
Martin H. Redish, Electronic Discovery and the Litigation Matrix, 51 Duke L.J. 561, 623-25 (2001) (footnotes omitted).