201 So. 3d 912
La. Ct. App.2016Background
- Fiveash slipped and fell on a step at Pat O’Brien’s on Jan. 14, 2014, alleging the step’s condition caused serious injury; she sued for damages.
- Repeated scheduling efforts were made for plaintiff’s expert to inspect the step; an expert inspection was agreed for Nov. 24, 2014.
- On Oct. 24, 2014, the step was damaged when a garbage can loosened a metal threshold; defendants informed plaintiff’s counsel and said they would repair the step and represented the repair would restore the identical condition.
- Defendants repaired the step on Nov. 10, 2014 (before the scheduled expert inspection); plaintiff amended to add an intentional spoliation claim on Dec. 19, 2014, alleging the repair altered evidence of the condition.
- Defendants moved for partial summary judgment on spoliation, submitting affidavits, depositions, photographs, and an expert report; the trial court granted partial summary judgment and dismissed the spoliation claim.
- The appellate court converted the untimely partial appeal to a writ, reversed the trial court, and remanded—holding genuine factual disputes exist regarding defendants’ intent to deprive plaintiff of evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff presented sufficient evidence of intentional spoliation (intent to deprive use at trial) | Fiveash: counsel were assured repairs would restore "identical condition," she relied on assurances and would not have postponed expert inspection; photographs, expert report, and inconsistencies in defendants’ statements create circumstantial evidence of intent | Defendants: repairs were for safety (or cosmetic), photographs show evidence remained, and there is no proof of intent to deprive plaintiff of trial use | Reversed trial court: genuine issue of material fact exists as to intent; summary judgment inappropriate because intent is a subjective fact for the trier of fact |
| Whether some remaining evidence (photos) defeats a spoliation claim | Fiveash: some evidence survives but repair altered key physical attributes (rise, slope, density) not ascertainable from photos, impairing her claim | Defendants: presence of photos and partial evidence shows no destruction sufficient to support spoliation | Held: presence of photos does not eliminate disputed factual issues about whether repair materially altered evidence or defendants’ motive |
| Whether defendants’ affidavits negate spoliation intent on summary judgment | Fiveash: affidavits are self-serving and inconsistent with other evidence; credibility and intent require factfinder determination | Defendants: affidavits show repair was not intended to destroy evidence | Held: court may not resolve credibility on summary judgment; affidavits alone do not eliminate genuine issue on intent |
| Whether summary judgment was procedurally appealable | Fiveash: timely sought appellate review | Defendants: trial court did not designate final judgment | Held: appellate court converted appeal to supervisory writ (appropriate) because the partial judgment was not designated final |
Key Cases Cited
- Reynolds v. Bordelon, 172 So.3d 589 (La. 2015) (Louisiana recognizes only an intentional spoliation cause of action)
- Quinn v. RISO Investments, Inc., 869 So.2d 922 (La. App. 4 Cir. 2004) (spoliation requires intentional destruction to deprive opposing party; intent is rarely appropriate for summary judgment)
- Lacey v. Louisiana Coca-Cola Bottling Co., 452 So.2d 162 (La. 1984) (circumstantial evidence standard and proof by preponderance)