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Oliver v. Stimson Lumber Co.12/22/1999
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This is simply not fair to Stimson and, indeed, it significantly undermines the Court's statement that appellate courts must insure that the "parties" to litigation have a fair opportunity to present their claims or defenses. It is true that the Olivers now have a fair opportunity to present their claim. Stimson does not have a corresponding opportunity. Had Stimson had the opportunity to demand the reasonable costs of preservation--an opportunity on which the Court places much importance--it may be that the Olivers would have declined to incur such costs and this action never would have been filed. The fact is that, at least in this case, the Court's placing of the burden of preservation "where it rightfully belongs, on the person or entity requesting preservation[,]" is an illusion.
Finally, I would not define the elements of the tort of intentional spoliation of evidence in the case presently before us. The Court properly notes that this case does not warrant the adoption or recognition of such a tort due to the total absence of any facts which would support such a cause of action. For the Court to then define the elements of an as yet unrecognized and unadopted tort results in an advisory opinion on a subject admittedly not before us. That portion of the Court's opinion is purely and totally dicta and, for that reason, I cannot join it.
I join the Court in reversing the District Court on issue one and affirming it on issue three. I dissent from the Court's reversal of the District Court on issue two.
KARLA M. GRAY
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