October 2 , 2006

STATE SUPREMES RECOGNIZE NEW TORT OF SPOLIATION

Connecticut now expressly recognizes the tort of spoliation of evidence, the state Supreme Court announced in an advance release opinion Sept. 25.

This is good news for Leandro Rizzuto, who fell from a Davidson brand ladder at the Home Depot in Norwalk in December 1996. Rizzuto alleges the ladder was defective, or had defective warnings. He filed suit against Home Depot and the Louisville, Ky.-based ladder company. His lawyers at New Haven-based Stratton Faxon contend they repeatedly advised Home Depot to preserve the evidence.

In a dramatic argument before the Supreme Court, during a courthouse bomb threat on Dec. 2, 2005, Stratton Faxon attorney Michael Oh maintained that a valuable cause of action was lost when Home Depot lost or destroyed the ladder. Oh said it is unknown at this point whether the destruction was negligent or intentional.

In legal briefs, Stratton Faxon name partners Michael A. Stratton and Joel T. Faxon argued that Connecticut lacks an adequate legal remedy for destruction of evidence in a civil case, and urged the court to recognize a new tort, as it did in 1952 for the infliction of emotional distress, and again in 1980 for wrongful firing.

Reached last week, Faxon called the decision "the most comprehensive ruling in the country on the issue."

Home Depot's appellate attorney, John B. Farley of Halloran & Sage, argued that Connecticut does not recognize the tort of spoliation, and even if it did, the trial judge properly dismissed Rizzuto's spoliation claim. Farley contended Rizzuto could proceed with a substitute ladder as his "Exhibit A," because it would have the same design qualities and warning labels.

In writing the 4-to-1 majority opinion, Justice David M. Borden said it was premature to throw out the spoliation claim on a motion to strike. Former Chief Justice William J. Sullivan dissented, contending it is bad public policy to award damages not based on evidence. He characterized the fault in Rizzuto's case as speculative at best.

Justice Richard N. Palmer, concurring with the majority, expressed the view that it was unnecessary to create an entirely new tort. He suggested the majority's goal to discourage and penalize intentional destruction of evidence could be met if, upon finding the destruction intentional, the trial judge lets the jury infer the missing evidence bolstered the plaintiff's case.

However, that wouldn't work in this case, Palmer noted. Once the destruction came to light, Rizzuto, for tactical reasons, withdrew his products liability claim and substituted spoliation as the primary count. The revised complaint added a Connecticut Unfair Trade Practices Act claim that Home Depot has a history of destroying evidence to gain a tactical advantage.

Borden wrote that the trial court was wrong to conclude Rizzuto could put on a case without the ladder, and to strike his spoliation claim. The record in the case doesn't show whether the parties know the model of the collapsed ladder, whether similar ladders are available, or whether they would have the same qualities as the one that broke. "It is sufficient, at this stage of the proceedings, that the plaintiff's complaint allege that the lost or destroyed ladder was 'critical evidence' in the proof of his products liability claims," Borden wrote.

The majority agreed that it was not necessary for Rizzuto to wage a products liability trial without that evidence before being allowed to sue for spoliation. It noted that destroying evidence "can destroy fairness and justice, for it increases the risk of an erroneous decision" and forces the parties to rely on inferior substitutes that "may be less accessible, less persuasive or both."

It is necessary to recognize the tort of spoliation to properly compensate the victims of spoliation and to deter destruction of evidence, the majority held.

Destruction of evidence in an official proceeding is a felony, and lawyers who destroy evidence are subject to professional discipline. However, those remedies are not enough to deter spoliation for a litigation advantage, the majority determined. "[T]hese remedies do not adequately deter future intentional, bad faith spoliation of evidence," Borden wrote.

The new tort has five elements: (1) the defendant's knowledge of a pending or impending civil action; (2) the defendant's destruction of evidence; (3) bad faith, with intent to deprive the plaintiff of his or her case; (4) the plaintiff's inability to make a case without the missing evidence and (5) damages. The measure of damages is what the plaintiff would have received if he or she won the case.

Acknowledging this could be a huge figure, the majority concluded, "To the extent that some risk of a windfall to the plaintiff persists, we conclude that the defendant should bear this risk in light of its egregious litigation misconduct."

Home Depot argued against creating the new tort, on grounds it would be forced to vigilantly guard all manner of items that might never be the focus of a suit. It predicted a flood of meritless spoliation cases. The majority responded that litigants are already required to preserve key evidence, and the difficulty of proving intent makes the tort a challenge for the plaintiff.

The trial court in the Rizzuto case was wrong to reject the spoliation claim, but did not abuse its discretion when it rejected the CUTPA claim, the majority concluded.