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Gribben v. Wal-Mart Stores


reement, or other special relationship imposing upon the defendant a duty to the plaintiff to maintain the evidence (a surveillance videotape), and that the harm in erasing the videotape was not reasonably foreseeable to the defendant.

In light of Indiana's inconclusive case law, we agree with Judge Shields that there is no controlling Indiana precedent as to the questions presented.

Several jurisdictions, including West Virginia, Alaska, Montana, the District of Columbia, Illinois, New Mexico, and Ohio, recognize evidence spoliation as a cognizable tort. Hannah v. Heeter, 584 S.E.2d 560 (W. Va. 2003) (granting stand-alone tort status for intentional spoliation and for some third-party negligent spoliation, but rejecting first-party negligent spoliation as a stand-alone tort); Nichols v. State Farm Fire & Cas. Co., 6 P.3d 300 (Alaska 2000) (acknowledging independent tort claims for first-party and third-party intentional spoliation but rejecting tort status for first-party negligent spoliation); Oliver v. Stimson Lumber Co., 993 P.2d 11 (Mont. 1999) (recognizing tort action for negligent or intentional third-party spoliation, but not for first-party spoliation); Holmes v. Amerex Rent-A-Car, 180 F.3d 294 (D.C. Cir. 1999) (recognizing tort for negligent third-party spoliation); Boyd v. Travelers Ins. Co., 652 N.E.2d 267 (Ill. 1995) (permitting separate tort claim for negligent spoliation against principal defendant's liability insurer); Coleman v. Eddy Potash, Inc., 905 P.2d 185 (N.M. 1995) (recognizing tort liability for intentional spoliation, but not one for negligent spoliation); Smith v. Howard Johnson Co., 615 N.E.2d 1037 (Ohio 1993) (recognizing tort action for intentional first-party and third-party spoliation).

But several other jurisdictions considering the issue, among them Florida, Mississippi, Arkansas, California, Iowa, Texas, Alabama, Georgia, Kansas, and Arizona have rejected spoliation as an independent tort. Martino v. Wal-Mart Stores, Inc., 835 So. 2d 1251 (Fla. Dist. Ct. App.) (rejecting tort action for first party spoliation), review granted, 861 So. 2d 430 (Fla. 2003); Richardson v. Sara Lee Corp., 847 So. 2d 821 (Miss. 2003) (rejecting negligent spoliation as an independent tort); Dowdle Butane Gas Co. v. Moore, 831 So. 2d. 1124 (Miss. 2002) (rejecting independent cause of action for intentional first-party or third-party spoliation); Rosenblit v. Immerman, 766 A.2d 749 (N.J. 2001) (rejecting spoliation as a new tort but permitting similar remedy upon theory of fraudulent concealment); Goff v. Harold Ives Trucking Co., Inc., 27 S.W.3d 387 (Ark. 2000) (rejecting tort of first-party intentional spoliation); Temple Cmty. Hosp. v. Superior Court, 976 P.2d 223 (Cal. 1999) (rejecting tort of intentional third-party spoliation); Meyn v. State, 594 N.W.2d 31 (Iowa 1999) (rejecting tort claim for third-party negligent spoliation); Cedars-Sinai Med. Ctr. v. Superior Court, 954 P.2d 511 (Cal. 1998) (rejecting tort remedy for intentional first-party spoliation); Trevino v. Ortega, 969 S.W.2d 950 (Tex. 1998) (refusing to recognize intentional or negligent spoliation as an independent tort); Christian v. Kenneth Chandler Constr. Co., Inc., 658 So. 2d 408 (Ala. 1995) (declining to recognize tort action for first party spoliation); Gardner v. Blackstone, 365 S.E.2d 545 (Ga. Ct. App. 1988) (refusing claim for first party spoliation); Koplin v. Rosel Well Perforators, Inc., 734 P.2d 1177 (Kan. 1987) (generally rejecting tort of spoliation of evidence); La Raia v. Superior Court, 722 P.2d 286 (Ariz. 1986) (declining to recognize new tort of intentional spoliation against first party).

Courts uniformly condemn spoliation. " ntentional destruction of potential evidenc

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