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Westover v. Leiserv7/25/2005
been obtained from a Chicago area bowling alley also owned by Leiserv, Inc., Brunswick's parent company. As Westover was pulling one of the chairs under herself in order to sit down, the leg of the chair separated from the seat and a sharp piece of metal cut off the tip of her index finger. The two metal tabs which were attached to the front two corners of the chair seat, securing the seat to the metal chair, were cracked at their respective welding points. As a result, the chair seat had become detached from the front of the metal chair frame, exposing a sharp piece of metal.
Gaul, who was at the bowling alley at the time, came over and inspected the chair. He noticed that the weld of the chair was broken and that the chair seat was detached from the front of the metal chair frame on both the left and right sides. Westover's brothers also examined the accident chair and told her that the welds on the chair were broken. Gaul asked one of Brunswick's employees to take the chair to the back room, intending that the chair be preserved. He did not, however, instruct the employee to put a note or sign on it stating that the chair must not be discarded.
The following Monday, Gaul discovered that the accident chair had been discarded as trash by another employee. Gaul attempted to retrieve it from the trash area but it had already been picked up. Gaul proceeded to look at the other chairs in the lounge and found that approximately six chairs had broken metal welds, "the exact same defect," according to his deposition, that he observed in the accident chair. Gaul removed those chairs and secured three of them, which he asserts were identical or substantially similar in appearance and defect to the accident chair. Although Gaul did not observe a Regal label on the accident chair, he did remove a Regal tag from one of the other chairs in the lounge. Photographs of the three secured chairs were shown to Westover and to Regal's president. Westover agreed that the chairs in the photographs were substantially similar to the accident chair. Regal's president stated that the photographs depicted chairs that were similar to chairs that Regal once manufactured.
Throughout the discovery process, Brunswick revealed that it intended to produce an expert witness to testify about the failure mode of the weld that was used to join the front seat tabs to the chair frame. The expert would have testified that the defect was a design defect present in all of the chairs in that model line.
Discussion
The doctrine of spoliation "is based on the premise that a party who has negligently or intentionally lost or destroyed evidence known to be relevant for an upcoming legal proceeding should be held accountable for any unfair prejudice that results." Keene v. Brigham and Women's Hosp., Inc., 439 Mass. 223, 234 (2003). See Kippenhan v. Chaulk Servs., Inc., 428 Mass. 124, 127 (1998) (negligent destruction of evidence is sufficient to constitute spoliation).
It has been "implicitly recognized that persons who are actually involved in litigation (or know that they will likely be involved) have a duty to preserve evidence for use by others who will also be involved in that litigation." Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 549-550 (2002). The record before the motion judge establishes, and Brunswick concedes, that Gaul's conduct in attempting to preserve the chair demonstrated that he was aware that Brunswick would likely be involved in future litigation because of the injury to Westover, and therefore, Brunswick had a duty to preserve the chair. See id. at 550. Thus, the record before the motion judge established spoliation of the evidence.
Once spol
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