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DISTRICT OF COLUMBIA RECOGNIZES TORT OF NEGLIGENT OR RECKLESS SPOLIATION OF EVIDENCE THAT MAY BE BROUGHT AGAINST A THIRD PARTY NOT INVOLVED IN THE UNDERLYING ACTION
In a decision which should be of interest to every rent-a-car company and automobile insurer doing business in the District of Columbia, the Court has recognized the tort of negligent spoliation of the evidence. This matter arose out of a head-on automobile accident. The plaintiff had been driving a rental vehicle, and alleged that the engine of the rented vehicle intruded into the passenger compartment causing severe and permanent injuries. Following the collision, the rental company took possession of the wrecked car. Plaintiff's attorney made efforts to ensure that the rental company would hold the car for inspection, and the rental company agreed, informing plaintiff's attorney that the vehicle would be held for a certain time period. However, before the expiration of that period, the wreck was sold for salvage, and the front of the car was severed and the engine was removed. According to plaintiff's expert in accident reconstruction, this made it impossible to determine whether or not the vehicle had design, manufacturing and/or maintenance defects which proximately caused the injuries. The plaintiff ultimately filed suit in federal court against Chrysler, for negligent design, and against the rental company, for negligent spoliation of the evidence and other claims. The District Court granted summary judgment in favor of the rental company with regard to negligent spoliation. An appeal followed, resulting in the D.C. Circuit's certification of the issues whether the cause of action existed, and if so, its definition, to the D.C. Court of Appeals. The D.C. Court of Appeals recognize the cause of action, and held that the elements of negligent spoliation of evidence are as follows: (1) the existence of a potential civil action; (2) a legal or contractual duty to preserve evidence which is relevant to that action; (3) destruction of that evidence by the duty-bound defendant; (4) significant impairment in the ability to prove the potential civil action; (5) a proximate relationship between the impairment of the underlying suit and the unavailability of the destroyed evidence; (6) a significant possibility of success of the potential civil action if the evidence were available; and (7) damages adjusted for the estimated likelihood of success in the potential civil action. The Court agreed with Illinois precedent that it would be too heavy a burden on a plaintiff to require that the plaintiff show that he or she would have won with the missing evidence. The Court further held that in an action for negligent or reckless spoliation, damages arrived at through just and reasonable estimation based on relevant data should be multiplied by the probability that the plaintiff would have won the underlying suit had the spoliated evidence been available. For example, if the estimated recovery in the underlying action was $200,000, and there was an estimated 60% that the plaintiff would have recovered that amount if the spoliation had not occurred, then the damages award would by 60% of $200,000, or $120,000. * * * SEQUEL
The D.C. Circuit had certified two novel questions of D.C. law to the D.C. Court of Appeals, see Holmes v. Amerex Rent-A-Car, supra, and in this opinion the D.C. Circuit applied the legal rulings handed down by the D.C. Court of Appeals. The Court concluded that the evidence in this case, viewed in the light most favorable to plaintiff, would allow a reasonable jury to conclude that (1) Holmes had a potential civil action rising out of the accident in which he was involved; (2) Amerex had a contractual obligation to preserve the car for Holmes; (3) Amerex negligently allowed the car to be sold and dismantled; (4) Holmes’ ability to prove his case in the potential civil action was significantly impaired; (5) the impairment of the underlying suit was proximately related to the dismantling of the car and the attendant loss of evidence relating to the design, manufacturing, and maintenance of the car; (6) Holmes would have had a significant possibility of success in the potential civil action if the evidence were available; and (7) Holmes suffered damages. The D.C. Circuit found that a "significant possibility of success" was shown by the affidavit of an expert in accident reconstruction who, after reviewing photographs of the car taken after the accident, determined that the car appears to have lacked reasonable crashworhtiness. Thus, the Court concluded that the magistrate judge had erroneously granted summary judgment to Amerex on the negligent spoliation claim, and reversed. |
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