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Gribben v. Wal-Mart Stores3/22/2005
Pursuant to Indiana Appellate Rule 64, the United States District Court for the Southern District of Indiana has certified, and we have accepted, the following questions of Indiana law:
1. Does Indiana law recognize a claim for "first-party" spoliation of evidence; that is, if an alleged tortfeasor negligently or intentionally destroys or discards evidence that is relevant to a tort action, does the plaintiff in the tort action have an additional cognizable claim against the tortfeasor for spoliation of evidence?
2. If so, what are the elements of the tort, and must a plaintiff elect between pursuing the spoliation claim and utilizing an evidentiary inference against the alleged tortfeasor in the underlying tort action?
In her certification order, Judge Shields asserts that there is no controlling Indiana precedent and that courts in other jurisdictions vary greatly.
The certified questions arise in a tort action by the plaintiff, Patricia Gribben, for injuries sustained in a fall at a store owned and operated by the defendant, Wal-Mart Stores, Inc. The plaintiff moved to amend her complaint to add a claim for spoliation of evidence against the defendant for its intentional or negligent failure to preserve a surveillance videotape which she alleges would have been relevant to her tort claim.
The question is specifically limited to "first party" spoliation, as distinguished from "third party" spoliation. The former refers to spoliation of evidence by a party to the principal litigation, and the latter to spoliation by a non-party. See generally Temple Cmty. Hosp. v. Superior Court, 976 P.2d 223 (Cal. 1999).
The plaintiff asserts that Indiana should recognize an independent tort claim for intentional first-party spoliation of evidence. While the certified question includes both negligent and intentional destruction of evidence, the plaintiff here claims only intentional spoliation, which she urges should be treated differently than negligent spoliation. In the Plaintiff's Brief, she argues that spoliation and the underlying cause of action should be tried together and, if the jury finds intentional spoliation related to a relevant issue, the jury should be instructed to find for the plaintiff on that issue. Plaintiff's Br. at 17. If the jury finds spoliation was negligent rather than intentional, it would instead be given a negative inference instruction. Id. In Plaintiff's Response Brief, however, she appears to present a slightly different proposal, one not merely restricting the remedy to the relevant issue affected by spoliated evidence but also urging that "damages for intentional spoliation should be the identical compensatory damages recoverable in the underlying case" and that punitive damages would also be recoverable. Plaintiff's Response Br. at 4.
The plaintiff contends that a tort of intentional spoliation arises from standard Indiana jurisprudence regarding the existence of a duty of care, and that the tort is needed to discourage the growing occurrence of spoliation and its erosion of both the ability of courts to do justice and public confidence in legal processes. She argues that existing sanctions are insufficient deterrence to the practice of intentional destruction of evidence, and that any systemic burden upon courts and juries that might result from recognizing this new tort would be overwhelmingly outweighed by the importance of stopping cheating and assuring the availability of evidence to enable the fact finder to make a fair and informed decision.
The defendant urges that Indiana's existing procedural and evidentiary safeguards are an adequate deterrent without adopting a new tort. It a
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