Articles Posted in Spoliation

Where plaintiffs sued for $500,000 in flood damages to a bus and trailer, but disposed of the bus and trailer shortly after the flood before defendant could examine the alleged damages, the Court of Appeals affirmed dismissal of the gross negligence claim based on spoliation of evidence.

In Legacy Five Leasing, LLC v., LLC, No. M2019-01615-COA-R3-CV (Tenn. Ct. App. May 27, 2020), plaintiffs leased a parking space for their bus and trailer from defendant. When leasing the space, plaintiffs signed an agreement that stated that defendant “assumed no liability or responsibility for damages to [the bus and/or trailer] due to theft, vandalism, fire, flood or other acts of God or man,” and the agreement stated that plaintiffs’ equipment would be “parked in a floodway or floodplain.”

Less than a year after the agreement was signed, the parking lot flooded, and plaintiffs claimed their bus and trailer were extensively damaged. Plaintiffs “confronted” defendant just four days after the flood regarding defendant’s actions with respect to the flood. The following day, plaintiffs gave control of the bus and trailer to their insurance company, and the property was disposed of before defendant could examine any of the alleged damage.

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Where a plaintiff in a tractor-trailer accident case unintentionally allowed the tractor at issue to be destroyed, dismissal of the case was ruled an appropriate remedy for spoliation of evidence.

In Gardner v. R&J Express, LLC, No. E2017-00823-COA-R3-CV (Tenn. Ct. App. May 7, 2018), plaintiff owned a tractor truck that was pulling a trailer owned by defendant. While driving, plaintiff was involved in a single vehicle accident when the tractor-trailer overturned, which plaintiff alleged was caused “because the tandem axle on the trailer ‘suddenly and unexpectedly’ came loose while they were traveling down the highway.”

The accident occurred on May 29, 2015, and plaintiff retained counsel just a few weeks later on June 17, 2015. On June 24, 2015, plaintiff’s attorney sent a letter to defendant regarding plaintiff’s intention to file suit and “Defendant’s responsibility to preserve the relevant evidence.” Shortly after this letter was sent, plaintiff signed title of the tractor over to his insurance company, and the tractor was destroyed.

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What is it with drillers and spoliation of evidence cases?  First it was Cincinnati Ins. Co. v. Mid-South Drillers Supply, Inc. which is a Tennessee leading case on the subject.  And now, we have a new spoliation case with a different drilling company, Griffith Services Drilling, LLC v. Arrow Gas & Oil, Inc.   So, let’s drill down on this issue a bit, shall we? 

Griffith Services Drilling, LLC (Griffith Drilling) and its insurance carrier sued Arrow Gas & Oil, Inc. (Arrow) for $1.2 million in property damage caused by a fire.  On the day of the fire, an Arrow employee, Mr. Burress, delivered fuel to Griffith Drilling.  During the refueling, Burress walked away to converse with some of the Griffith Drilling employees.  Shortly thereafter, a Griffith Drilling employee yelled that fuel was spraying and a fire ignited.  When Burress moved the Arrow truck to get it away from the fire, the fuel nozzle broke off.  The next day, Burress took the broken nozzle to a retailer and traded it in for a new nozzle.  Griffith Drilling was not provided any notice of Arrow’s intent to replace the nozzle. 

After the fire and without notifying Arrow, Grifftih Drilling’s insurance carrier authorized clean up of the site and disposed of all evidence of the fire.  One month after the clean-up was completed, Griffith Drilling sent Arrow a notice of its intent to pursue a claim for the fire damage.  Suit was eventually filed and Arrow counterclaimed for breach of contract as Griffith Drilling had failed to pay for the fuel delivered to the site.   Thereafter, Arrow filed two motions: (1) a motion to dismiss for spoliation of evidence based on Griffith Drilling’s clean up of the site; (2) a motion for summary judgment on the breach of contract counterclaim.  The trial court granted both motions.  Griffith Drilling appealed alleging the trial court erred by granting both motions. 

The South Carolina Supreme Court has ruled that there is not cause of action for the negligent spoliation of evidence in that state.

In Cole Vision Corp. v. Hobbs,  No. 26988 (S.C. 6/20/11) the defendant counterclaimed and sued plaintiff for negligent spoliation of evidence.  Defendant maintained that plaintiff lost a key case of evidence that he needed to defend a malpractice claim brought by a former patient.

The Court held that "South Carolina does not recognize an independent tort for the negligent spoliation of evidence, third-party or otherwise."    After referencing the differing views reached by other courts across the country on this subject, the court said as follows:

New Jersey has a well-developed body of case law on the issue of spoliation of evidence.  Tartaglia v. UBS PaineWebber, Inc.,  961 A.2d 1167 (N.J. 2008) sets forth the history of the development of the law in the state.

On August 3, 2010 the Supreme Court of New Jersey issued yet another opinion in the area, this time in the context of construction litigation.  In Robertet Flavors, Inc. v. Tri-Form Const., Inc., 2010 WL 3022121  (N.J. Aug. 3, 2010), the court wrestled with the issue of what factors to consider when determining what sanction should be imposed for spoliation of evidence in construction litigation.   After surveying the law from across the country, the court adopted this test:

[C]ourts confronted with spoliation in the context of commercial construction litigation should recognize that a variety of factors bear on the appropriate remedy. In particular, courts should consider all of the following: the identity of the spoliator; the manner in which the spoliation occurred, including the reason for and timing of its occurrence; the prejudice to the non-spoliating party, including whether the non-spoliating party bears any responsibility for the loss of the spoliated evidence; and the alternate sources of information that are, or are likely to be, available to the non-spoliator from its own records and personnel, from contemporaneous documentation or recordings made by or on behalf of the spoliator, and from others as a result of the usual and customary business practices in the construction industry. Courts should then balance all of those considerations in crafting the appropriate remedy with an appreciation for the ways in which the construction industry itself provides them with unique tools with which to “level the playing field” and achieve an appropriate remedy for spoliation.

The United States Court of Appeals for the Sixth Circuit recently ruled that federal law applies to determination what sanctions should be available for relief of spoiled evidence in federal question cases.  The en banc decision reversed  precedent and brought the circuit in line with other appellate courts.

An excerpt:  "Because failures to produce relevant evidence fall ‘along a continuum of fault – ranging from innocence through the degrees of negligence to intentionality,’ the severity of a sanction may, depending on the circumstances of the case, correspond to the party’s fault. Thus, a district court could impose many different kinds of sanctions for spoliated evidence, including dismissing a case, granting summary judgment, or instructing a jury that it may infer a fact based on lost or destroyed evidence."  [Citations omitted.]

Read Adkins v. Wolever, No. 07-1421 (6th Cir. Feb. 4, 2009) here.

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