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Nichols v. State Farm Fire and Casualty Company8/11/2000
iew discovery rulings for abuse of discretion. "We will find an abuse of discretion when we are left with a definite and firm conviction after reviewing the whole record that the trial court erred in its ruling."
Attorney's fee awards are similarly reviewed for abuse of discretion. We will reverse an award of attorney's fees only if the award is "arbitrary, capricious, manifestly unreasonable, or stems from improper motive."
IV. DISCUSSION
A. Spoliation
In Hazen v. Municipality of Anchorage we recognized that acts of intentional spoliation of evidence can give rise to independent tort claims for intentional interference with a prospective civil action. In Hazen, one of the alleged spoliators, Bailey, was not a party to the original tort lawsuit against the Municipality of Anchorage. Hazen permitted an intentional spoliation tort claim to be maintained against Bailey and against the Municipality. It therefore recognized that intentional spoliation claims can be made against parties to the original action (called "first-party spoliators") and non-parties to the original action (called "third-party spoliators").
We have not recognized an independent tort for negligent spoliation of evidence. In Sweet v. Sisters of Providence in Washington we were presented with a first-party negligent spoliation claim. The plaintiffs alleged that a hospital had negligently lost medical records that were critical to plaintiffs' medical malpractice claim against the hospital and others. We held that the jury should be instructed that the loss of the medical records raises a rebuttable presumption of negligence on the part of the hospital. This shifts the burden of proof to the hospital to prove that it was not negligent. We noted that the court should first determine whether the missing evidence "sufficiently hinders plaintiff's ability to proceed." If the spoliated evidence is important enough to meet this standard then the rebuttable presumption/burden-shifting remedy can be applied.
We concluded in Sweet that the burden-shifting remedy was a sufficient response to the problem of missing evidence under the circumstances presented. We did not decide whether negligent spoliation could ever form the basis for an independent suit and implicitly recognized that in cases of third-party spoliation the burden-shifting remedy might not be effective: "We need not decide in this case whether the recognition of a separate tort of negligent destruction of evidence would ever be appropriate, for example, against a third party not associated with the underlying lawsuit."
1. Nichols's claim for negligent spoliation cannot be maintained separately against State Farm.
Nichols ignores an important aspect of his claim for negligent spoliation by failing to focus on whether it is a claim of first-party or third-party spoliation. State Farm argues that this is a first-party claim. We agree. State Farm is not, to use the language of Sweet, a "third party not associated with the underlying lawsuit." Instead, State Farm has assumed Gittlein's defense. We see no reason why the Sweet remedy would not be a sufficient response to negligent spoliation of the ladder, whether by Gittlein or State Farm, assuming the ladder's disappearance was found to be a sufficient hindrance to the prosecution of Nichols's claim. If the absence of the ladder were found not to be a sufficient hindrance, then no tort remedy would be needed. Thus here, as in Sweet, we conclude that a separate tort remedy for negligent spoliation may not be maintained.
For this reason, we uphold summary judgment dismissing the negligent spoliation claim against State Far
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