New York Rejects “Spoliation of Evidence” as an Independent Tort Claim
 
January 2, 2008
 
David Robert Brand - New York

“Spoliation” refers to the “intentional destruction, mutilation, alteration, or concealment of evidence ... .” Black’s Law Dictionary, 1437 (8th ed. 2004). If proven, the party responsible for the spoliation is typically subject to a negative evidentiary inference, monetary sanctions or other reprimand imposed by the court.

Spoliation as an independent tort is a relatively new cause of action, and it is only recognized in a limited number of states. For example, New Mexico and Alaska only allow for a recovery when a plaintiff can prove that the destruction of evidence was intentionally aimed at disrupting the underlying litigation. Other states, including Montana and West Virginia, have recognized a claim for spoliation whereby a plaintiff must prove the following elements in order to recover: (1) the existence of pending or probable civil litigation; (2) the spoliator’s knowledge that the litigation is pending or probable; (3) a duty to preserve evidence due to contract, agreement, statute or other circumstance; (4) spoliation of evidence; (5) the spoliated evidence was vital to a party’s ability to prevail in a pending litigation; and (6) damages. See Hannah v. Heeter, 213 W. Va. 704 (2003). States such as New Jersey and Illinois permit spoliation claims if the plaintiff can prove the typical negligence standards – that a duty was owed by the defendant to the plaintiff, there was a breach of that duty, and there was a resulting injury to the plaintiff caused by the defendant’s breach.

The Ortega Ruling

Until recently, New York courts had not ruled on whether spoliation, either intentional or negligent, was recognized as an independent tort under New York law. In Ortega v. City of New York, 2007 WL 2988760 (N.Y.) (Oct. 16, 2007), the Court of Appeals, the state’s highest court, declined to recognize “spoliation of evidence” as an independent tort claim. The court stated that “New York courts have been reluctant to embrace claims that rely on hypothetical theories or speculative assumptions about the nature of the harm incurred or the extent of plaintiff’s damages.”

In considering whether to adopt a new tort cause of action, New York courts generally contemplate both “social and policy” rationales. As the Court of Appeals previously noted, “[w]hile it may seem that there should be a remedy for every wrong, this in an ideal limited perforce by the realities of this world.” Trombetta v. Conklin, 82 N.Y.2d 554 (1993), quoting Tobin v. Grossman, 24 N.Y.2d 609, 619 (1969). It was with this rationale that the Court of Appeals rejected spoliation of evidence as an independent tort claim.

In Ortega, plaintiff Castalia Ortega purchased a used minivan from a private owner. She brought the vehicle to a licensed service station for an inspection and tune-up. One day after the vehicle was serviced, Ortega and plaintiff Manuel Peralta were driving in the van when it suddenly burst into flames, causing both passengers to suffer severe burns. New York City police officers responded to the accident and contacted a towing contractor to remove the vehicle and store it in its lot. The van remained in the contractor’s lot for approximately one month, when it was transported to the City Police Department pound in Queens.

Counsel for plaintiff Peralta attempted to inspect the van while it was located in the tow lot, but the towing contractor refused, claiming that Peralta did not have the right to examine the vehicle since he was not the owner. In response, eight days before it was moved to the Police pound, Peralta commenced a special proceeding against both the contractor and the Police Department seeking a court order precluding the destruction of the vehicle until it could be inspected. Neither the towing contractor nor the Police Department opposed the application. The court granted a period of 60 days to inspect the vehicle, thus precluding its imminent destruction. The preservation order, however, was either not received by the pound or not sent to the pound, and the vehicle was destroyed before Peralta’s attorney could inspect it.

Instead of commencing a personal injury action against the van’s manufacturer or the service station that had inspected the vehicle, Ortega and Peralta commenced an action against New York City, claiming that the city should be held liable for all damages, including damages for their personal injuries, because by destroying the vehicle the city had violated its duty to preserve evidence. Additionally, the plaintiffs claimed that by violating the preservation order, the city was guilty of civil contempt, rendering it liable for any damages flowing from the disregard of the court order.

The plaintiffs filed a motion for summary judgment, which included the affidavit of an accident reconstruction expert who theorized that the city’s destruction of the vehicle precluded the plaintiffs from recovering damages from any of the potential tortfeasors who were responsible for their injuries. In response, the city alleged that a claim for negligent spoliation was “inherently speculative,” because even if Peralta’s attorney had inspected the vehicle, the results of the inspection may have been inconclusive.

While the trial court acknowledged that the tort was speculative in nature, it nevertheless concluded that the plaintiffs stated a cognizable claim. The court, however, dismissed Ortega’s claim because she was not a party to the special proceeding that resulted in the preservation order; therefore, she could not show that the city breached a duty owed to her. The court also dismissed the contempt claim holding that it should be addressed in the preservation order proceeding. The intermediate appellate court agreed with the trial court’s decision and the plaintiffs appealed.

The Court of Appeals stated that it was not convinced that “New York remedies [were] inadequate to deter spoliation or appropriately compensate its victims.” The court articulated that the plaintiffs were not left without recourse against the city. Indeed, the city had conceded that had the plaintiffs chosen to purse their contempt claim that, at minimum, the city would be liable for the cost of additional investigation and research incurred due to the absence of the vehicle. The plaintiffs chose not to pursue the contempt claim, however, because it would not afford them the opportunity to be compensated for their pain and suffering and other damages related to the accident.

With the decision in Ortega, New York joined the majority of jurisdictions in declining to recognize spoliation of
evidence as an independent tort. The New York Court of Appeals reasoned that, if it recognized a spoliation tort, juries would be left with “no reasonable means of determining how liability might have been apportioned among tortfeasors in the original litigation or of assessing the plaintiff’s own comparative fault, if any.”

For more information, email David R. Brand at david.brand@hklaw.com or call toll free, 1-888-688-8500.