The dispositive issue in this appeal
The record reveals the following relevant facts and procedural history. On December 16, 1996, the plaintiff, Leandro Rizzuto, climbed a ladder manufactured by the named defendant, Davidson Ladders, Inc. (Davidson),
On May 8, 2001, the plaintiff amended his complaint to add a claim for intentional spoliation of evidence. Specifically, the plaintiff alleged that: (1) "[b]y destroying and/or not preserving [the] ladder, the defendants... intentionally spoliated evidence critical to [the plaintiff's] pending products liability action"; (2) "[t]he plaintiff's case has been damaged to the point where no expert can conclusively establish the mechanism of the defect which caused the plaintiff's injuries"; and (3) "as a result of the spoliation, the plaintiff may not be able to prove his case, and his interest in the [product liability cause] of action ... will forever be lost." The defendants moved to strike the plaintiff's intentional spoliation of evidence claim, contending that no such cause of action exists in this state. The trial court agreed with the defendants and, on March 19, 2003, granted the motion to strike.
Meanwhile, on November 25, 2002, the plaintiff requested permission to file a second amended complaint alleging that Home Depot's "pattern in practice [of] destroy[ing] critical pieces of evidence that are the subject of litigation against it" violates the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The defendants objected, claiming that the proposed amendment was untimely and unsupported by any factual allegations. On March 19, 2003, the
Thereafter, the plaintiff withdrew the product liability claims and moved for judgment in favor of the defendants on the claim of intentional spoliation of evidence. The trial court granted the plaintiff's motion and, on June 2, 2003, rendered judgment in favor of the defendants. This appeal followed.
The plaintiff claims that the trial court improperly granted the defendants' motion to strike his intentional spoliation of evidence claim on the ground that spoliation of evidence is not a cognizable tort, and improperly sustained the defendants' objection to his request to file a second amended complaint. We agree with the plaintiff's first claim, but disagree with his second claim. Accordingly, we reverse in part and affirm in part the judgment of the trial court.
The plaintiff first claims that the trial court improperly granted the defendants' motion to strike his intentional spoliation of evidence claim on the ground that no such cause of action exists. Home Depot responds that we need not determine whether this state recognizes the tort of intentional spoliation of evidence because the plaintiff's complaint fails to plead all of the essential elements of the tort. Alternatively, Home Depot maintains that this state does not recognize intentional spoliation of evidence as an independent cause of action. We agree with the plaintiff.
"The standard of review in an appeal challenging a trial court's granting of a motion to strike is well established. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court's ruling is plenary.... We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency.... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006).
We first address Home Depot's claim that we need not determine whether this state recognizes the tort of intentional spoliation of evidence because, even if such a cause of action exists, the trial court properly struck the plaintiff's spoliation claim. Specifically, Home Depot contends that the destruction of the ladder did not hinder the plaintiff's ability to prevail on his product liability claims, and the plaintiff's voluntary withdrawal of his product liability claims precludes a spoliation claim as a matter of law. We reject these claims.
"Disruption of a party's case is a critical element of the intentional spoliation tort." M.M. Koesel & T.L. Turnbull, Spoliation of Evidence: Sanctions and Remedies for Destruction of Evidence in Civil Litigation (2d Ed. 2006), p. 93; see, e.g., Coleman v. Eddy Potash, Inc., 120 N.M. 645, 649, 905 P.2d 185 (1995), overruled in part on other grounds by Delgado v. Phelps Dodge Chino, Inc., 131 N.M. 272, 34 P.3d 1148 (2001); Smith v. Howard Johnson Co., 67 Ohio St.3d 28, 29, 615 N.E.2d 1037 (1993); Hannah v. Heeter, 213 W.Va. 704, 717, 584 S.E.2d 560 (2003). Accordingly, most states that recognize the tort of intentional spoliation of evidence require a plaintiff to establish, inter alia, that "the spoliated evidence was vital to a party's ability to prevail in [a] pending
Home Depot does not dispute that the ladder was vital to the plaintiff's ability to prevail on his claim that the ladder was manufactured defectively. Rather, Home Depot contends that the ladder was not vital to the plaintiff's claims that the ladder was designed defectively or sold without adequate warnings because these claims, Home Depot maintains, could have been proven through the use of exemplars. In support of this argument, Home Depot relies on Beers v. Bayliner Marine Corp., 236 Conn. 769, 778, 675 A.2d 829 (1996), wherein this court concluded that an "[adverse] inference may not be drawn with respect to a claim based upon design defect when the destruction [of evidence] would not hinder the defense."
Home Depot next claims that the trial court properly struck the plaintiff's intentional spoliation of evidence claim because the plaintiff voluntarily withdrew his product liability action. In support of this claim, Home Depot relies on Petrik v. Monarch Printing Corp., 150 Ill.App.3d 248, 249, 103 Ill.Dec. 774, 501 N.E.2d 1312 (1986), appeal denied, 114 Ill.2d 556, 108 Ill.Dec. 424, 508 N.E.2d 735 (1987), in which the plaintiff brought an action for retaliatory discharge against his former employer, Monarch Printing Corporation (Monarch). After the plaintiff lost his retaliatory discharge suit, he filed a claim against Monarch for intentional spoliation of evidence, alleging that Monarch's intentional destruction of evidence hindered his ability to prevail on his retaliatory discharge action. Id., at 249-51, 103 Ill.Dec. 774, 501 N.E.2d 1312. The trial court concluded that intentional spoliation of evidence was not a cognizable tort and dismissed the plaintiff's spoliation claim. Id., at 250-51, 103 Ill.Dec. 774, 501 N.E.2d 1312. On appeal, the Appellate Court of Illinois determined that it need not decide whether Illinois law would recognize a spoliation
We conclude that Home Depot's reliance on Petrik is misplaced. The plaintiff in the present case, unlike the plaintiff in Petrik, pursued vigorously both his product liability claims and his intentional spoliation of evidence claim in the same litigation. The plaintiff only withdrew his product liability claims after the trial court had granted the defendants' motion to strike. As such, the sufficiency of the plaintiff's complaint, and the propriety of the trial court's ruling, cannot be measured by events that took place subsequent to, and in reliance on, that ruling. Indeed, the plaintiff represents in his brief to this court that he was "forced to withdraw his product liability [claims] against the defendants" because Home Depot's destruction of the ladder, combined with the trial court's grant of the defendants' motion to strike, left the plaintiff "with no ability to present evidence to sustain the product liability claim[s]...." He therefore withdrew the product liability claims and moved for a final judgment from which he could appeal.
In any event, we would decline to require a spoliation plaintiff to pursue a futile lawsuit to establish a causal nexus between a defendant's alleged spoliation of evidence and the failure of the underlying action. See Mayfield v. ACME Barrel Co., 258 Ill.App.3d 32, 38, 196 Ill.Dec. 145, 629 N.E.2d 690 (1994) ("no action for spoliation can be brought until after the underlying claim which is dependent upon the missing evidence is lost"); but see Boyd v. Travelers Ins. Co., 166 Ill.2d 188, 198, 209 Ill.Dec. 727, 652 N.E.2d 267 (1995) (plaintiff need not lose underlying action to bring spoliation claim, instead, plaintiff may bring spoliation claim concurrently with underlying action). We agree with those jurisdictions that have concluded that requiring a plaintiff to pursue and to lose the underlying litigation prior to bringing a spoliation claim "is too harsh" and "ignores the plaintiff's interest in securing a reasonable recovery" for the alleged loss of the underlying action. Holmes v. Amerex Rent-A-Car, 710 A.2d 846, 851 (D.C.1998); see also Oliver v. Stimson Lumber Co., 297 Mont. 336, 350, 993 P.2d 11 (1999) (same). Accordingly, we conclude that the plaintiff's withdrawal of his product liability action did not render his intentional spoliation of evidence claim legally insufficient.
We next address whether this state recognizes the tort of intentional spoliation of evidence. As an initial matter,
"It cannot be doubted that we have the inherent power to recognize new tort causes of action, whether derived from a statutory provision; see, e.g., Mead v. Burns, 199 Conn. 651, 663, 509 A.2d 11 (1986) (creating damages action under Connecticut Unfair Trade Practices Act for violations of Connecticut Unfair Insurance Practices Act); or rooted in the common law. See, e.g., Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 480, 427 A.2d 385 (1980) (recognizing tort of wrongful discharge); Urban v. Hartford Gas Co., 139 Conn. 301, 307, 93 A.2d 292 (1952) (recognizing torts of intentional and negligent infliction of emotional distress)." Binette v. Sabo, 244 Conn. 23, 33, 710 A.2d 688 (1998).
"[T]he fundamental policy purposes of the tort compensation system [are] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct.... It is sometimes said that compensation for losses is the primary function of tort law... [but it] is perhaps more accurate to describe the primary function as one of determining when compensation [is] required.... An equally compelling function of the tort system is the prophylactic factor of preventing future harm.... The courts are concerned not only with
"The underlying premise for recognition of [the tort of intentional spoliation of evidence] is that a victim of spoliation is entitled to recover compensatory, and possibly punitive, damages for the loss of a prospective lawsuit. The ineffectiveness of judicial sanctions in deterring spoliation prompted, in part, the recognition of this tort.... The spoliation tort protects a litigant's interest in bringing a prospective cause of action by compensat[ing] the non-spoliating litigant for uninvited interference with the prospective lawsuit resulting from destroyed evidence." (Internal quotation marks omitted.) M.M. Koesel & T.L. Turnbull, supra, at pp. 84-85; see also Holmes v. Amerex Rent-A-Car, supra, 710 A.2d at 849 ("[s]ome remedy ... should be available to those whose expectancy of recovery has been eliminated ... through the [intentional] acts of another"); Hazen v. Anchorage, 718 P.2d 456, 464 (Alaska 1986) ("a prospective civil action in a product liability case is a valuable probable expectancy that the [c]ourt must protect from the kind of interference alleged herein" [internal quotation marks omitted]).
To determine whether existing nontort remedies are sufficient to compensate victims of intentional spoliation and to deter future spoliation, we first analyze the scope and applicability of these remedies under the facts alleged herein. This court first addressed the effect of intentional spoliation of evidence in a products liability case in Beers v. Bayliner Marine Corp., supra, 236 Conn. at 769, 675 A.2d 829. In Beers, the plaintiffs brought a product liability claim against the defendant for personal injuries sustained while traveling in a motor boat. Id., at 770-71, 675 A.2d 829. Prior to bringing the claim, however, one of the plaintiffs had removed and disposed of the boat's motor. Id., at 772-73, 675 A.2d 829. The defendant moved for summary judgment, claiming that it was unable to defend itself against the plaintiff's product liability claim as a result of the plaintiff's intentional spoliation of evidence. Id., at 773, 675 A.2d 829. The trial court agreed, and rendered summary judgment in favor of the defendant. Id., at 774, 675 A.2d 829.
On appeal, we concluded that a victim of spoliation is not entitled to summary judgment as a matter of law; id., at 775, 675 A.2d 829; and, accordingly, we reversed the judgment of the trial court. Id., at 781, 675 A.2d 829. Instead, we adopted "the rule of the majority of the jurisdictions that have addressed the issue [of spoliation of evidence] in a civil context, which is that the trier of fact may draw an inference from the intentional spoliation of evidence that the destroyed evidence would have been unfavorable to the party that destroyed it." Id., at 775, 675 A.2d 829. To be entitled to this inference, the victim of spoliation must prove that: (1) the spoliation was intentional, in the sense that it was purposeful, and not inadvertent;
Pursuant to Beers, a party "suffering from spoliation cannot build an underlying case on the spoliation inference alone; for an underlying claim to be actionable, the [party] must also possess some concrete evidence that will support the underlying claim." B.S. Wilhoit, "Spoliation of Evidence: The Viability of Four Emerging Torts," 46 UCLA L.Rev. 631, 648 (1998). Thus, a plaintiff in a product liability action cannot rely solely on the spoliation inference to withstand a motion for summary judgment or a motion for a directed verdict; he must also have some independent concrete evidence of a product defect.
In the present case, the plaintiff alleges that the defendants' intentional, bad faith destruction of the ladder deprived him of the evidence he needed to establish a prima facie case of product liability against the defendants.
We next turn to the efficacy of the judicial sanctions available under our rules of practice for intentional spoliation of evidence. Practice Book § 13-14
Such plaintiffs may, however: (1) request the entry of default judgment; (2)
Although these sanctions provide a limited deterrent effect, with the exception of an entry of default judgment, none of them attempts to compensate the plaintiff for the loss of his underlying civil action. Even the propriety and applicability of an entry of default judgment, however, is questionable under the present circumstances. As we previously explained, this court concluded in Beers that a party's intentional spoliation of evidence does not relieve the spoliation victim of the burden to produce concrete evidence to support his underlying claim. Beers v. Bayliner Marine Corp., supra, 236 Conn. at 779, 675 A.2d 829. As such, it would appear to be inconsistent with Beers to conclude that a victim of spoliation is entitled to judgment as a matter of law, despite his inability to satisfy his burden of proof, as a consequence of a defendant's intentional spoliation of evidence. To the extent that a default judgment would be proper, we note that it is a discretionary sanction of last resort and, as such, likely would be available only in the most egregious cases. See, e.g., Marfia v. T.C. Ziraat Bankasi, 100 F.3d 243, 249 (2d Cir.1996) (entry of default judgments is "the most severe sanction which the court may apply" [internal quotation marks omitted]); Evans v. General Motors Corp., 277 Conn. 496, 523-24, 893 A.2d 371 (2006) ("although [entry of a default judgment] is not an abuse of discretion whe[n] a party shows a deliberate, contumacious or unwarranted disregard for the court's authority ... the court should be reluctant to employ the sanction... except as a last resort" [internal quotation marks omitted]). Accordingly, we
Moreover, we conclude that these remedies do not adequately deter future intentional, bad faith spoliation of evidence. In a product liability action, the allegedly defective product often is the best if not the only evidence of a product defect. Where the product is in the sole custody or control of the defendant, the possible specter of nontort sanctions may pale in comparison to the costs of a lengthy trial or a substantial award of damages. Indeed, the more defective the product, the stronger the financial incentive to destroy or to dispose of the inculpatory evidence so as to prevent the plaintiff from proving his claim. In other words, under the existing remedies, the more effective the defendant's spoliation conduct, the greater the financial reward.
For the foregoing reasons, we conclude that the existing nontort remedies are insufficient to compensate victims of spoliation and to deter future spoliation when a first party defendant destroys evidence intentionally with the purpose and effect of precluding a plaintiff from fulfilling his burden of production in a pending or impending case. We therefore conclude that recognition of an independent cause of action for intentional spoliation of evidence is necessary to fulfill the public policy goals of the tort compensation system.
"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.'" Hannah v. Heeter, supra, 213 W.Va. at 716, 584 S.E.2d 560, quoting Coleman v. Eddy Potash, Inc., supra, 120 N.M. at 649, 905 P.2d 185. "Although no uniform body of case law has developed regarding the precise contours of this tort, most states that have adopted the tort agree that the elements of intentional spoliation consist of: (1) pending or probable litigation involving the plaintiff, (2) knowledge on the part of [the] defendant that litigation exists or is probable, (3) willful destruction of evidence by [the] defendant designed to disrupt the plaintiff's case, (4) disruption of the plaintiff's case, and (5) damages proximately caused by the defendant's acts."
Home Depot claims, however, that the tort of intentional spoliation of evidence is unworkable and provides an ineffective remedy. Specifically, Home Depot contends that causation and damages would be difficult to prove because "there will typically be no way of telling what precisely the [spoliated] evidence would have shown and how much it would have weighed in the spoliation victim's favor." Cedars-Sinai Medical Center v. Superior Court, supra, 18 Cal.4th at 14, 74 Cal.Rptr.2d 248, 954 P.2d 511. We agree that this difficulty of proof is "endemic to the tort of spoliation"; (internal quotation marks omitted) Holmes v. Amerex Rent-A-Car, supra, 710 A.2d at 853; but we disagree that it should preclude recognition of the tort. Id. The difficulty in determining the harm caused by a defendant's spoliation of evidence is attributable solely to the defendant's intentional bad faith litigation misconduct. If the plaintiff could establish precisely what the spoliated evidence would have shown, the tort would be unnecessary because the plaintiff would possess sufficient evidence to satisfy his burden of production in the underlying litigation. See id., at 850 ("the very purpose of an independent action for spoliation of evidence lies in the inability of the plaintiff to prove proximate causation to the proper degree of certainty required in the underlying suit"). Accordingly, "there would be an inequity in preventing a plaintiff from recovering because of his inability, allegedly caused by the defendant, to prove his underlying case. [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." (Internal quotation marks omitted.) Id.; see also Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563, 51 S.Ct. 248, 75 L.Ed. 544 (1931) ("Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts. In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate. The wrongdoer is not entitled to complain that they cannot be measured with the exactness and precision that would be possible if the case, which he alone is responsible for making, were otherwise.").
In light of the difficulties of proof inherent in the tort of intentional spoliation
We next turn to the proper measure of damages. We acknowledge that, "[t]he most difficult aspect of a spoliation of evidence tort is the calculation of damages." (Internal quotation marks omitted.) Holmes v. Amerex Rent-A-Car, supra, 710 A.2d at 852. In determining the proper measure of damages, we are guided by the purpose of compensatory damages, which is "to restore an injured party to the position he or she would have been in if the wrong had not been committed." Kenny v. Civil Service Commission, 197 Conn. 270, 276, 496 A.2d 956 (1985). To restore a victim of intentional spoliation of evidence to the position he or she would have been in if the spoliation had not occurred, the plaintiff is entitled to recover the full amount of compensatory damages that he or she would have received if the underlying action had been pursued successfully. See Hannah v. Heeter, supra, 213 W.Va. at 715, 584 S.E.2d 560 (full measure of compensatory damages); Smith v. Atkinson, supra, 771 So.2d at 437-38 (same); see also Petrik v. Monarch Printing Corp., supra, 150 Ill.App.3d at 261, 103 Ill.Dec. 774, 501 N.E.2d 1312("[a]ssuming that it is impossible to know what the spoliated evidence would have shown, perhaps the plaintiff should be awarded the full measure of damages that he would have obtained had he won the underlying lawsuit").
We recognize that various jurisdictions have criticized this measure of damages because "there is the potential that the plaintiff would benefit more in an instance of spoliation than he might have in the underlying suit."
Home Depot next claims that the burdens imposed by the tort of intentional spoliation of evidence outweigh the benefits. Specifically, Home Depot alleges that the tort of intentional spoliation of evidence imposes the following intolerable costs: (1) extraordinary precautions by individuals and businesses to preserve needlessly any evidence that might be relevant to future litigation; (2) meritless spoliation actions clogging the dockets of the courts; (3) where the underlying claim and the spoliation claim are pursued simultaneously, the risk of jury confusion and inconsistency; (4) where the underlying claim and the spoliation claim are pursued separately, the risk of duplicative efforts and potentially inconsistent results. See, e.g., Cedars-Sinai Medical Center v. Superior Court, supra, 18 Cal.4th at 15, 74 Cal.Rptr.2d 248, 954 P.2d 511 (costs imposed by tort of intentional spoliation of evidence outweigh benefits). We recognize that "[i]mposing liability for consequential damages often creates significant risks of affecting conduct in ways that are undesirable as a matter of policy." (Internal quotation marks omitted.) Lodge v. Arett Sales Corp., supra, 246 Conn. at 579, 717 A.2d 215. We are not persuaded, however, that the costs imposed by the tort of intentional spoliation of evidence exceed the benefits.
First, with respect to the preservation of evidence, we note that the parties to a pending or impending civil action already have a legal duty to retain evidence relevant to that action under our existing common law and statutory scheme. See footnotes 4, 8 and 10 of this opinion and accompanying text. Thus, the tort of intentional spoliation of evidence does not impose a greater burden to preserve evidence than that which already exists. Second, with respect to the risk of meritless spoliation actions, we do not agree with Home Depot that recognition of the tort will result in an uncontrollable influx of frivolous claims. We conclude that the limited scope of the tort, the difficulty of proof inherent in the tort and the safeguards embodied in our rules of practice; see Rules of Professional Conduct 3.1;
For the foregoing reasons, we conclude that this state recognizes the tort of intentional spoliation of evidence. Because the plaintiff's complaint sufficiently states a claim for intentional spoliation of evidence; see part I A and footnote 7 of this opinion; we conclude that the trial court improperly granted the defendants' motion to strike the plaintiff's intentional spoliation claim.
Lastly, the plaintiff contends that the trial court improperly denied his request to file a second amended complaint alleging that the defendants' intentional destruction of evidence violated CUTPA. Specifically, the plaintiff claims that the trial court abused its discretion when it concluded that the plaintiff's request was untimely and that the proposed amendment was unsupported by factual allegations. Home Depot responds that the trial court properly denied the plaintiff's request in light of the age of the case, the impending trial, the broad new issues being injected into the case and the plaintiff's unreasonable delay in seeking the amendment. We conclude that the trial court improperly considered the legal sufficiency of the plaintiff's proposed CUTPA claim in ruling on the plaintiff's request to file a second amended complaint. We further conclude, however, that the trial court did not abuse its discretion by denying the plaintiff's request on the grounds of timeliness and prejudice to the defendants.
The following additional procedural history is relevant to our resolution of this claim. On November 25, 2002, the plaintiff filed a request for permission to file a second amended complaint alleging that Home Depot had destroyed evidence as part of a "pattern in practice [of] destroy[ing] critical pieces of evidence that are the subject of litigation against it" in violation of CUTPA. On December 6, 2002, the defendants objected to the plaintiff's request, claiming that the proposed amendment was legally deficient because the plaintiff had failed to allege any facts in support of the CUTPA claim. On February 5, 2003, the defendants filed a supplemental objection to the plaintiff's request, claiming that the proposed amendment was untimely and would be unduly prejudicial to the defendants.
Thereafter, in February, 2003, the law firms that had represented both defendants jointly withdrew their appearances on the ground of a conflict of interest,
Meanwhile, the trial, which originally had been scheduled for April 30, 2001, but was postponed to February 18, 2002, was continued to March 19, 2003. On January 28, 2003, the defendants moved for a continuance because trial counsel was unavailable.
On February 24, 2003, the trial court, Doherty, J., heard oral arguments on the defendants' objection to the plaintiff's request to file a second amended complaint. The plaintiff claimed that the proposed amendment was timely because it was filed immediately after he discovered that Home Depot had a pattern and practice of intentionally destroying evidence relevant to pending litigation.
On March 19, 2003, the date that trial was scheduled to commence, the trial court sustained the defendants' objection. The plaintiff moved to reargue his request and, on April 10, 2003, the trial court denied the plaintiff's motion. Thereafter, the trial court rendered judgment in favor of the defendants, and the plaintiff appealed from the judgment of the trial court to the Appellate Court. On November 17, 2003, the plaintiff moved the Appellate Court to order the trial court to articulate its reasons for sustaining the defendants' objection. The Appellate Court granted the motion and, on December 17, 2004, the trial court issued an articulation, explaining that it had sustained the defendants' objection because the plaintiff's proposed
"Our standard of review of the plaintiff's claim is well settled. While our courts have been liberal in permitting amendments ... this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment.... The motion to amend is addressed to the trial court's discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial .... Whether to allow an amendment is a matter left to the sound discretion of the trial court. This court will not disturb a trial court's ruling on a proposed amendment unless there has been a clear abuse of that discretion.... It is the [plaintiff's] burden in this case to demonstrate that the trial court clearly abused its discretion." (Internal quotation marks omitted.) Dow & Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 583-84, 833 A.2d 908 (2003).
The plaintiff first claims that the trial court improperly denied his request to file a second amended complaint on the ground that the proposed CUTPA claim was unsupported by factual allegations. Specifically, the plaintiff claims that "requests to amend cannot be denied based on the sufficiency of the proposed complaint." We agree. The proper procedural vehicle to challenge the legal sufficiency of a proposed pleading is a motion to strike, rather than an objection to a motion to amend. See Practice Book § 10-39.
The plaintiff next claims that the trial court improperly denied his request to file an amended complaint on the ground that the proposed amendment was untimely. We are not persuaded. The plaintiff discovered Home Depot's destruction of evidence in 1999, but did not seek to allege a violation of CUTPA until November, 2002, at which point the trial was only four months away.
The judgment is reversed with respect to the claim of spoliation of evidence and the case is remanded to the trial court with direction to deny the motion to strike as to that claim and for further proceedings according to law; the judgment is affirmed in all other respects.
In this opinion NORCOTT, PALMER and VERTEFEUILLE, Js., concurred.
Furthermore, because the plaintiff has alleged intentional bad faith spoliation, as opposed to intentional innocent spoliation; see, e.g., Beers v. Bayliner Marine Corp., supra, 236 Conn. at 777 and n. 11, 675 A.2d 829; we need not decide whether an allegation of intentional spoliation, unaccompanied by an allegation of bad faith, would suffice.
PALMER, J., concurring.
I join the majority opinion. I write separately simply to note that there is a way to achieve the result that the majority reaches without creating a new tort of intentional spoliation of evidence. That approach would be to extend our holding in Beers v. Bayliner Marine Corp., 236 Conn. 769, 675 A.2d 829 (1996), to provide that a plaintiff may invoke the Beers adverse inference to satisfy his or her burden of production upon proof merely that the defendant had destroyed the evidence in bad faith, that is, with intent to deprive the plaintiff of his or her cause of action. Although I believe that such a modification of Beers would satisfy the concerns addressed by the majority, the plaintiff in the present action has not sought that remedy; indeed, the plaintiff has withdrawn his product liability claims, and, therefore, an extension of Beers in the manner suggested would not avail the plaintiff. In light of the procedural history of this case, and because I agree with the plaintiff that the currently available remedies for intentional, bad faith spoliation of evidence are inadequate, I join the majority opinion.
SULLIVAN, C.J., dissenting.
I disagree with part I B of the majority opinion, in which the majority concludes that this state should recognize a tort for intentional first party spoliation of evidence when, as a result of the spoliation, the plaintiff is unable to establish a prima facie case in the underlying action. The majority concludes that recognition of this tort is necessary to compensate victims of spoliation and to deter future spoliation. I would conclude that existing remedies are sufficient to deter and punish acts of spoliation and that it is against public policy to provide compensation for damages when liability cannot be established.
The majority of jurisdictions that have considered whether to recognize a tort for first party spoliation of evidence have concluded that such claims are not cognizable.
After reviewing the cases in which it repeatedly had refused to create new torts to remedy litigation related misconduct; id., at 9, 74 Cal.Rptr.2d 248, 954 P.2d 511;
Like California, Connecticut disfavors derivative torts.
As a preliminary matter, I note that there simply is no need to reach this issue in the present case because, contrary to the majority's statement, the plaintiff, Leandro Rizzuto, has not alleged that he was
In my view, evidence that the ladder collapsed when the plaintiff stood on it, together with evidence that the defendants intentionally destroyed the ladder, clearly would be sufficient to support an inference under Beers that physical examination of the ladder would have been unfavorable to the defendants. See Beers v. Bayliner Marine Corp., supra, 236 Conn. at 775, 675 A.2d 829. It is also possible that the plaintiff could demonstrate that the ladder was defective by using exemplar ladders. It is ironic that, although the majority opinion purportedly is premised on the unfairness to the plaintiff of disallowing a claim for spoliation, the majority not only fails to view the plaintiff's product liability action in the light most favorable to him, but takes precisely the opposite tack. I cannot fathom why the majority is so eager to adopt a new tort for first party intentional spoliation of evidence—in a form that no other jurisdiction in the country has recognized—that it is willing to distort the record to suggest that the plaintiff in the present case could meet the elements of that tort.
In support of its conclusion that the irreducible uncertainty of harm does not militate against adopting a tort for first party intentional spoliation of evidence when the plaintiff cannot establish a prima facie case, the majority relies on Holmes v. Amerex Rent-A-Car, 710 A.2d 846, 853 (D.C.1998), and Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563, 51 S.Ct. 248, 75 L.Ed. 544 (1931). In Holmes, the court stated that "there would be an inequity in preventing a plaintiff from recovering because of his inability, allegedly caused by the defendant, to prove his underlying case. [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." (Internal quotation marks omitted.) Holmes v. Amerex Rent-A-Car, supra, at 850. In Story Parchment Co., the court stated that "[w]here the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts. In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate. The wrongdoer is not entitled to complain that they cannot be measured with the exactness and precision that would be possible if the case, which he alone is responsible for making, were otherwise." (Internal quotation marks omitted.) Story Parchment Co. v. Paterson Parchment Paper Co., supra, at 563, 51 S.Ct. 248.
In Story Parchment Co., however, the court specifically found that the evidence at trial supported a finding that the defendant unlawfully had interfered with the plaintiff's business and that the interference had injured the plaintiff. Id., at 560, 51 S.Ct. 248. Only the amount of damages was uncertain. Id., at 561, 51 S.Ct. 248.
The majority may respond, however, that under the version of the tort that it adopts, the plaintiff must prove that the defendant caused an injury because he must establish that the defendant destroyed the evidence in bad faith, i.e., with an intent to deprive the plaintiff of his cause of action. This is mere sleight of hand. The majority cannot, simply by conjuring up a new derivative tort in which the element of bad faith substitutes for the element of causation, change the basic fact that any finding of liability and damages without a finding that the injury was in fact caused by the defendant must be entirely speculative. Bad faith, in and of itself, cannot injure anyone.
The majority engages in a similar sleight of hand when it concludes that the plaintiff is entitled to the full amount of his damages. The majority implicitly argues that when a defendant's destruction of evidence prevents the plaintiff from presenting even a prima facie case, the defendant's conduct is so "egregious" that it is fair to place on him the entire risk of the uncertainty of harm. The majority does not allow the tort, however, in all cases where the defendant has engaged in egregious, bad faith conduct, but only in those cases where the plaintiff cannot present a prima facie case. Thus, another defendant could engage in equally egregious conduct and incur no liability whatsoever because, although he did not prevent the plaintiff from establishing a prima facie case, he did prevent the plaintiff from proving his case.
Consider the following examples. Driver A drives his new lawnmower off a cliff and incurs severe injuries. He claims that the steering became inoperable just before the crash, but the manufacturer of the lawnmower destroys the lawnmower in bad faith before trial. Because the jury reasonably could believe A's testimony that the steering malfunctioned, he has a prima facie case of product liability. See Miller v. Allstate Ins. Co., supra, 650 So.2d at 674 (evidence that product malfunctioned during normal operation constitutes prima facie case that product was defective). Without the lawnmower, however, the jury is not convinced that it is more likely than not that the lawnmower was defective and finds for the defendant.
I simply do not understand why the majority believes that, although Driver A is not entitled to receive anything from the spoliator in spite of the fact that the defendant's bad faith destruction of the evidence severely impaired his ability to recover damages, Driver B is entitled to recover the entire amount of his damages, even though there is no evidence that his injuries were caused by a defective lawnmower. The spoliator's conduct was equally egregious in each instance. If the majority believes that the bad faith destruction of evidence requires a harsher approach to spoliators than this court's approach in Beers, it would make much more sense to create a mandatory rebuttable presumption that the spoliated evidence would have favored the plaintiff in all cases where the defendant destroyed the evidence in bad faith, except those in which the plaintiff is unable to establish even a prima facie case of causation.
Finally, I would point out that we have not hesitated to require plaintiffs to prove causation in other contexts where a plaintiff's ability to establish liability and damages has been impaired by the defendant's conduct. In legal malpractice actions, the plaintiff is required to prove that "the defendant attorney's professional negligence caused injury to the plaintiff by presenting evidence of what would have happened in the underlying action had the defendant not been negligent. This traditional method of presenting the merits of the underlying action is often called the `case-within-a-case.'" Margolin v. Kleban & Samor, P.C., 275 Conn. 765, 775 n. 9, 882 A.2d 653 (2005). We do not excuse the plaintiff from making a showing of causation merely because the attorney has made it difficult for the plaintiff to establish what would have happened in the underlying action in the absence of the malpractice, regardless of the nature and severity of the attorney's misconduct.
To the extent that the majority believes that a completely arbitrary damage award is preferable to no award at all when the defendant has engaged in bad faith spoliation, the establishment of a civil fine payable to the spoliation victim would be better left to the legislature. See Mendillo v. Board of Education, 246 Conn. 456, 486-87, 717 A.2d 1177 (1998). There simply is no precedent for allowing a jury to award
I recognize the unfairness of denying recovery to a plaintiff when, as the possible result of the defendant's wrongful conduct, he cannot establish a prima facie case. The plain fact remains, however, that the causal connection between the plaintiff's inability to recover damages and the defendant's conduct must be irreducibly speculative in such cases. I also recognize that there may be cases where the defendant will prefer the risk of sanctions, a default judgment, contempt penalties, criminal fines and even imprisonment to the risk of a civil judgment against him. This proves only that human systems of justice will not be perfect until human behavior is perfect. I would conclude that, in our imperfect world, the well-defined costs of allowing claims for first party intentional spoliation of evidence outweigh the speculative benefits. Accordingly, I dissent.
"(b) Such orders may include the following:
"(1) The entry of a nonsuit or default against the party failing to comply;
"(2) The award to the discovering party of the costs of the motion, including a reasonable attorney's fee;
"(3) The entry of an order that the matters regarding which the discovery was sought or other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
"(4) The entry of an order prohibiting the party who has failed to comply from introducing designated matters in evidence;
"(5) If the party failing to comply is the plaintiff, the entry of a judgment of dismissal.
"(c) The failure to comply as described in this section may not be excused on the ground that the discovery is objectionable unless written objection as authorized by Sections 13-6 through 13-11 has been filed."
General Statutes § 53a-146 (1) provides: "An `official proceeding' is any proceeding held or which may be held before any legislative, judicial, administrative or other agency or official authorized to take evidence under oath, including any referee, hearing examiner, commissioner or notary or other person taking evidence in connection with any proceeding."
"The court denied the plaintiff's motion to amend to add a fourth count alleging CUTPA violations because it was `defective in alleging a conclusion without facts to support it,' and, further, because it was so untimely as to be unfair and prejudicial to the defendants in view of the fact that a jury was about to be selected the day the motion to amend came before the court."
We note that, if the trial court had struck the plaintiff's CUTPA claim pursuant to Practice Book § 10-39, the plaintiff would have been entitled to file a new complaint alleging additional facts in support of his claim. See Practice Book § 10-44 ("[w]ithin fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading"). We need not decide in this appeal whether any further specificity was required of the plaintiff in pleading his CUTPA claim. We point out, however, that, because the trial court simply denied the plaintiff's request to amend, the plaintiff was deprived of the opportunity to replead his CUTPA claim with specificity.
A number of courts have concluded that spoliation of evidence is not a cognizable tort per se but may be actionable under other theories. See Boyd v. Travelers Ins. Co., 166 Ill.2d 188, 194, 209 Ill.Dec. 727, 652 N.E.2d 267 (1995) (claim for spoliation of evidence can be stated under existing negligence law); Rosenblit v. Zimmerman, 166 N.J. 391, 406, 766 A.2d 749 (2001) (recognizing intentional spoliation of evidence claim as form of fraudulent concealment); Weigl v. Quincy Specialties Co., 158 Misc.2d 753, 756-57, 601 N.Y.S.2d 774 (1993) (New York does not recognize spoliation of evidence as independent tort, but does recognize common-law action for negligently or intentionally impairing right to bring action against tortfeasor).
A number of courts have recognized first party spoliation of evidence as an independent tort. See Hazen v. Anchorage, 718 P.2d 456, 463 (Alaska 1986); Holmes v. Amerex Rent-A-Car, 180 F.3d 294, 296 (D.C.Cir.1999) (under District of Columbia law, negligent or reckless spoliation of evidence is independent tort); Smith v. Howard Johnson Co., 67 Ohio St.3d 28, 29, 615 N.E.2d 1037 (1993); Hannah v. Heeter, 213 W.Va. 704, 715, 584 S.E.2d 560 (2003) (recognizing intentional spoliation of evidence as independent tort when spoliation done by party to civil action or by third party); see also Coleman v. Eddy Potash, Inc., 120 N.M. 645, 649, 905 P.2d 185 (1995) (recognizing intentional spoliation of evidence claim against third party and not distinguishing between first party and third party claims), overruled on other grounds by Delgado v. Phelps Dodge Chino, Inc., 131 N.M. 272, 34 P.3d 1148 (2001).
It is arguable that, if the plaintiff had brought only a spoliation action, this court could assume the truth of any allegations made in that action about the underlying action. In the present case, however, the allegations of the underlying action are before us. Assuming the truth of those allegations, the plaintiff clearly, as a matter of law, has made out a prima facie case of product liability.
Second, it is not entirely clear to me that the court in Smith was limiting spoliation claims to those in which the plaintiff could not establish a prima facie case in the underlying action. Rather, Smith may be interpreted as concluding only that, if an underlying action cannot survive a motion for summary judgment, then the plaintiff may bring a third party spoliation action. In reaching that conclusion, the court was rejecting the defendant's argument that, in order to bring an action for third party spoliation, the plaintiff first must bring the underlying action and be denied recovery. Smith v. Atkinson, supra, 771 So.2d at 434. Thus, it is arguable that the court did not conclude that, if the underlying action was capable of surviving a motion for summary judgment, but judgment ultimately was entered against the plaintiff, a third party spoliation action was precluded. See id. ("[t]he 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" [emphasis added]).
In Hannah, the court relied entirely on Smith in stating that the plaintiff may rely on either a judgment against him in the underlying action or a showing that, without the lost evidence, summary judgment would have been entered for the defendant in the underlying action. Again, it is not entirely clear that the court in Hannah was limiting spoliation claims to those in which the plaintiff could not establish a prima facie case in the underlying action. Moreover, the court in Hannah discusses this requirement in the context of the tort of third party negligent spoliation of evidence and does not restate or refer to this language in the section discussing the tort of first party intentional spoliation of evidence.