451 P.3d 166
Okla. Civ. App.2019Background
- In Nov. 2007 the Akins family suffered carbon monoxide (CO) poisoning; firemen and a Milam HVAC technician tested the furnace that night and observed high CO readings and "tagged" the furnace out of service.
- Plaintiffs later replaced the gas furnace with an electric unit and stored the old furnace in a shed; the flue/vent was apparently discarded and later the furnace was transported for testing and subsequently lost.
- Plaintiffs sued Milam for negligence (failure to test for CO and failure to warn of hazardous installation), alleging service by Milam in Oct. 2007 contributed to the CO event.
- Milam sought sanctions and an adverse-inference jury instruction, arguing Plaintiffs spoliated the furnace and flue by removing them without notice, prejudicing Milam's defense about the original scene.
- The trial court gave an adverse-inference instruction; the jury returned a verdict for Milam. On appeal the Court of Civil Appeals reviewed whether the court abused its discretion in imposing that sanction and admitting spoliation-focused evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether adverse-inference instruction for Plaintiffs' alleged prelitigation spoliation was appropriate | Akins: No willful/bad-faith destruction; reasonable reasons to remove/store furnace; made it available for testing; lost while in Milam's custody | Milam: Plaintiffs removed furnace/flue without notice; deprived Milam ability to inspect original operating condition; sanction is appropriate | Reversed: trial court abused discretion; no sufficient evidence of willful/bad-faith spoliation and court failed to make requisite findings before giving adverse inference; new trial ordered |
| Whether Plaintiffs had a prelitigation duty to preserve the furnace and flue | Akins: Did not know the flue was material; fire/tech tested furnace that night; sought replacement for safety; insurer requested inspection of "the furnace" only | Milam: Furnace and flue were a unit; reasonable parties should have foreseen litigation and preserved both the furnace and flue in place | Held: Plaintiffs had duty to preserve the furnace itself but evidence did not show they reasonably knew the flue or hot-water heater were material; burden unmet to show duty extended to flue in these circumstances |
| Whether bad faith/intentional conduct is required before giving spoliation adverse-inference instruction | Akins: Adverse inference requires evidence of intentional or bad-faith destruction; absent here instruction improper | Milam: Barnett and OUJI allow adverse inference where spoliation prejudices defense; instruction was proper as least-intrusive sanction | Held: Court must find willfulness/bad faith (or make findings supporting sanction); absent such findings and supporting record, adverse-inference sanction was improper here |
| Whether admitting spoliation-focused evidence and instruction prejudiced Plaintiffs | Akins: Evidence and instruction shifted trial focus to alleged misconduct, branding Plaintiffs and confusing issues; prejudicial | Milam: Jury entitled to consider Plaintiffs' failure to preserve; instruction permissible | Held: Admission of irrelevant spoliation evidence and adverse inference unfairly prejudiced Plaintiffs; trial should be redone without that error |
Key Cases Cited
- Barnett v. Simmons, 197 P.3d 12 (Okla. 2008) (defines spoliation, duty to preserve, and factors for sanctions)
- American Honda Motor Co. v. Thygesen, 416 P.3d 1059 (Okla. 2018) (sanction for routine, prelitigation deletion not authorized where deletion occurred in ordinary course and no bad faith shown)
- Walker v. Ferguson, 102 P.3d 144 (Okla. 2004) (trial court must find bad faith before imposing sanctions under inherent authority)
- Langley by Langley v. Union Elec. Co., 107 F.3d 510 (7th Cir. 1997) (removal of furnace from scene was critical to gas-company liability analysis; cited for contrast)
- Emerald Point, LLC v. Hawkins, 808 S.E.2d 384 (Va. 2017) (adverse-inference instruction inappropriate absent record support for intentional destruction)
- Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014) (party alleging spoliation bears burden to show duty to preserve; spoliation is evidentiary not a separate tort)