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Oliver v. Stimson Lumber Co.12/22/1999
t 354-55.
Generally, in order to prevail in a tort action, a plaintiff must show by a preponderance of evidence that the defendant breached a legal duty to the plaintiff and that the breach was the cause of the plaintiff's damages. See Gentry v. Douglas Hereford Ranch, Inc., 1998 MT 182, 24, 290 Mont. 126, 24, 962 P.2d 1205, 24.
A. Duty
A duty to preserve evidence may arise in relation to a third-party spoliator where:
(1) the spoliator voluntarily undertakes to preserve the evidence and a person reasonably relies on it to his detriment;
(2) the spoliator entered into an agreement to preserve the evidence;
(3) there has been a specific request to the spoliator to preserve the evidence; or
(4) there is a duty to do so based upon a contract, statute, regulation, or some other special circumstance/relationship. See Johnson v. United Serv. Auto. Ass'n (Cal. Ct. App. 1998), 79 Cal. Rptr. 2d 234, 239-41.
Here, the Olivers claim that a duty to preserve the equipment was established by virtue of their specific request to retain the machinery. The Defendants aptly point out that in order to trigger such a duty under the Johnson requirements, the request must be accompanied by an offer to pay the reasonable costs of preservation. See Johnson, 79 Cal. Rptr. 2d at 240.
Here, we deviate to some extent from the elements set forth in Johnson. We see no need to require the requesting party to include an offer to pay reasonable costs of preservation in the request. In many instances, particularly where the evidence is small in size and manageable, there will be no costs associated with the preservation. However, after receiving such a request, the third party may demand the reasonable costs of preservation from the requesting party. Of course, the person requesting preservation would have the option of deciding whether or not to incur such costs. This condition places the burden of preservation where it rightfully belongs, on the person or entity requesting preservation.
In the present case, giving the Olivers the benefit of all favorable inferences, there are material facts in dispute with regard to whether Stimson received the request to preserve the evidence. Loren Hartman, the claims adjuster for Liberty Northwest, testified that his usual and customary procedure was to telefax copies of important letters, such as the May 24, 1994, request to preserve letter from the Olivers' attorney, to Stimson. He stated he had no reason to believe that he did not follow the custom in this instance. Furthermore, Mr. Jones, who considered himself the attorney for both Liberty Northwest and Stimson, testified that he participated in a telephone conference call which included key Stimson employees, wherein he discussed the letter point by point.
Given this testimony, we conclude that a jury may very well determine that Stimson had actual notice of the Olivers' request to preserve the evidence. Therefore, the District Court erred in awarding summary judgment to Stimson on the issue of duty.
B. Causation
After thorough review of the authorities from other jurisdictions, we agree with the District of Columbia Court of Appeal's determination of causation in Holmes v. Amerex Rent-a-Car. A third-party spoliator should not be forced to pay damages to a plaintiff who had only a frivolous underlying claim. Thus, some threshold showing of causation and damages is required. See Holmes, 710 A.2d at 850.
Recovery for the loss of a plaintiff's ability to prove the underlying case and a third party's interest in only compensating the plaintiff for t
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