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Oliver v. Stimson Lumber Co.12/22/1999
nced remedy which will serve as a deterrent to any potential spoliator and provide suitable punishment against an actual spoliator as well as fair compensation to the victim of spoliation without creating a windfall.
A brief survey of a few of the jurisdictions that have previously recognized the tort of spoliation of evidence as an independent cause of action is relevant to our analysis. The California Court of Appeal for the Second District was the first court to adopt spoliation of evidence as an independent tort. See Smith v. Superior Court (Cal. Ct. App. 1984), 198 Cal. Rptr. 829, 837.
In that case, the plaintiff was injured when a wheel and tire flew off an oncoming van and smashed into the windshield of her car. After the accident, the van had been towed for repairs to the dealership that had originally installed the van's customized wheels. The dealership agreed to maintain certain parts pending further investigation by plaintiff's counsel. However, some time thereafter, the dealership destroyed, lost, or transferred the physical evidence. See Smith, 198 Cal. Rptr. at 831. In determining whether to recognize a new tort for the intentional spoliation of evidence, the court focused on the evolving nature of tort law. Relying on the basic premise that "for every wrong there is a remedy," the court established the tort of intentional spoliation of evidence as an independent cause of action. See Smith, 198 Cal. Rptr. at 832. In doing so, the court acknowledged that the extent and amount of damages in a spoliation case are highly speculative. See Smith, 198 Cal. Rptr. at 835-36. Finally, the court analogized the new tort of spoliation to the tort of interference with prospective business advantage already recognized by the State of California. The court concluded that a prospective civil action is a valuable probable expectancy that public policy dictates the court must protect from interference even though damages cannot be stated with certainty. See Smith, 198 Cal. Rptr. at 836-37. In addition, the court referenced the California Supreme Court decision of Williams v. State of California (Cal. 1983), 664 P.2d 137, issued the previous year, which implied that a cause of action for negligent spoliation of evidence might be established if the spoliator were under a duty to preserve the evidence. See Smith, 198 Cal. Rptr. at 833; see also Rubin, 51 Fla. L. Rev. at 349-50.
Approximately six months later, the Florida District Court of Appeal for the Third District recognized negligent spoliation of evidence as an independent cause of action. See Bondu v. Gurvich (Fla. Dist. Ct. App. 1984), 473 So. 2d 1307, 1313. In that case, the plaintiff's husband died while under anesthesia administered during triple bypass surgery. The plaintiff subsequently sued the hospital and the anesthesiologists claiming, as part of her multi-count complaint, the hospital intentionally interfered with her right of action by purposely and intentionally losing and/or destroying the anesthesiology records associated with her husband's surgery, which frustrated her ability to prove her case. See Bondu, 473 So. 2d at 1309-10. Relying on the California decisions mentioned previously, the Florida court recognized that an action for negligent spoliation could only be maintained if the defendant owed a duty to the plaintiff to preserve the evidence. See Bondu, 473 So. 2d at 1312. Under Florida law, the hospital had both an administrative and statutory duty to preserve the anesthesiology records and provide them to the plaintiff upon her request. Based on the hospital's breach of this duty, which resulted in the loss of a medical negligence lawsuit, the court concluded that the plaintiff's complaint stated a cause of a
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