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Oliver v. Stimson Lumber Co.12/22/1999
ction. See Bondu, 473 So. 2d at 1312-13.
In 1986 the Appellate Court of Illinois also considered whether to recognize the tort of spoliation of evidence. See Petrik v. Monarch Printing Corp. (Ill. App. Ct. 1986), 501 N.E.2d 1312. In that case, the court ultimately concluded that it need not decide whether Illinois law would recognize such a tort due to the fatal lack of an indispensable element of the tort: the plaintiff failed to adequately plead a nexus between the failure of his suit and the destruction of evidence. See Petrik, 501 N.E.2d at 1321.
In 1995 the Supreme Court of Illinois was presented with a certified question from a trial court, which assumed that Illinois courts had previously recognized spoliation of evidence as an independent cause of action. See Boyd v. Travelers Ins. Co. (Ill. 1995), 652 N.E.2d 267, 269.
The supreme court pointed out that it had never done so, but in response to the posed question it held that an action for negligent spoliation could be stated under existing negligence law without creating a new tort. See Boyd, 652 N.E.2d at 269-70. The supreme court went on to state:
To state a cause of action for negligence, a plaintiff must plead the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, an injury proximately caused by the breach, and damages.
The general rule is that there is no duty to preserve evidence; however, a duty to preserve evidence may arise through an agreement, a contract, a statute or another special circumstance. Moreover, a defendant may voluntarily assume a duty by affirmative conduct. In any of the foregoing instances, a defendant owes a duty of due care to preserve evidence if a reasonable person in the defendant's position should have foreseen that the evidence was material to a potential civil action. Boyd, 652 N.E.2d at 270-71 (citations omitted).
Most recently, the United States Court of Appeals for the District of Columbia certified questions involving the availability of a cause of action for spoliation of evidence and the causation standard to be applied to the tort, to the District of Columbia Court of Appeals. See Holmes v. Amerex Rent-A-Car (D.C. 1998), 710 A.2d 846, 847. In Holmes, the District of Columbia Court of Appeals held that negligent or reckless spoliation of evidence was an independent tort, set forth the elements of the tort, determined the standard for causation, and established an equitable system for calculating damages.
After a review of the decisions in those jurisdictions that have recognized the tort of spoliation of evidence, we adopt the torts of both intentional and negligent spoliation. A brief description of the elements of the torts is appropriate because of the unique nature of the torts, especially with respect to causation and damages.
I. NEGLIGENT SPOLIATION OF EVIDENCE
We agree with the states that have recognized the tort of negligent spoliation of evidence as an independent cause of action, which consists of the following elements:
(1) existence of a potential civil action;
(2) a legal or contractual duty to preserve evidence relevant to that action;
(3) destruction of that evidence;
(4) significant impairment of the ability to prove the potential civil action;
(5) a causal connection between the destruction of the evidence and the inability to prove the lawsuit;
(6) a significant possibility of success of the potential civil action if the evidence were available;
and
(7) damages See Holmes, 710 A.2d at 854; see also Rubin, 51 Fla. L. Rev. a
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