236 Conn. 769 | Conn. | 1996
This case raises an issue of first impression for this court — that is, the effect of intentional spoliation of evidence in a products liability case. In August, 1990, the plaintiffs, Marks Beers and John Hornyak,
The plaintiffs argue that the trial court incorrectly granted the defendant’s motion for summary judgment against them, despite alleged factual issues surrounding the disposal of the evidence.
The plaintiffs alleged the following in their complaint. On July 2, 1986, Beers had purchased from Napoli Marine Service, Inc., a nineteen foot “Capri” bowrider type of outboard motor boat (boat) designed, manufac
On November 8, 1994, the defendant moved for summary judgment, claiming that, although Beers’ allegedly defective boat was inspected by an expert,
In opposition to the defendant’s motion for summary judgment, the plaintiffs filed an affidavit by their attorney in which he stated that he had been contacted by the defendant’s claims adjuster “on one or two occasions during 1988 and/or 1989, indicating that [the claims adjuster] wanted to take pictures of the boat which is the subject of this lawsuit.” The plaintiffs’ attorney added the following: “My response was that if he would give me a couple of dates, I would arrange to have the boat made available. He never contacted me with specific dates on which to view the boat or to take pictures of it. I never received any follow-up correspondence (or correspondence of any kind) from [the claims
The trial court found that the defendant was entitled to judgment as a matter of law and rendered summary judgment against the plaintiffs. The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).
The issue of spoliation of evidence has not previously come to this court in the context of a civil case.
More specifically, we conclude that an adverse inference may be drawn against a party who has destroyed evidence only if the trier of fact is satisfied that the party who seeks the adverse inference has proven the following. First, the spoliation must have been intentional. Akiona v. United States, 938 F.2d 158, 161 (9th Cir. 1991), cert. denied, 503 U.S. 962, 112 S. Ct. 1567, 118 L. Ed. 2d 212 (1992); Bihun v. AT&T Information Systems, Inc., 13 Cal. App. 4th 976, 994, 16 Cal. Rptr. 2d 787 (1993); Collins v. Throckmorton, supra, 425 A.2d 150; State v. Langlet, supra, 283 N.W.2d 333; Larsen v. Romeo, supra, 254 Md. 228; DiLeo v. Nugent, supra, 88 Md. App. 71; Trupiano v. Cully, supra, 349 Mich. 570; Brown v. Hamid, supra, 856 S.W.2d 56-57; Jagmin v. Simonds Abrasive Co., supra, 61 Wis. 2d 81. By this, we do not mean that there must have been an intent to perpetrate a fraud
Second, the destroyed evidence must be relevant to the issue or matter for which the party seeks the inference. For example, the spoliation of a machine may raise an adverse inference with respect to a claim that that particular machine was defective, but such an inference may not be drawn with respect to a claim based upon design defect when the destruction would not hinder the defense. See Donohoe v. American Isuzu Motors, Inc., 157 F.R.D. 238, 244 (M.D. Pa. 1994) (“[A]ny other [seat] belt of the same model will possess the same inherent defect and can be tested and examined for defects in the same manner as the [plaintiffs] belt. Defendants will gain no more information as to the existence or non-existence of a design defect from testing the [plaintiffs] belt than they will from testing exemplar belts.”).
Third, the party who seeks the inference must have acted with due diligence with respect to the spoliated evidence. For example, the spoliator must be on notice that the evidence should be preserved. See Division of Resource Development, supra, 60 N.J. 202. If the spoliated evidence was necessary for inspection or testing, the party who seeks the inference must have taken all appropriate means to have the evidence produced. This may include, if necessary, an attempt to obtain a court-ordered inspection.
It must also be noted that the inference does not “supply the place of evidence of material facts and does not shift the burden of proof so as to relieve the party upon whom it rests of the necessity of establishing a prima facie case, although it may turn the scale when the evidence is closely balanced.” (Internal quotation marks omitted.) Doty v. Wheeler, 120 Conn. 672, 679, 182 A. 468 (1936); see Secondino v. New Haven Gas Co., supra, 147 Conn. 675; Larsen v. Romeo, supra, 254 Md. 228 (adverse inference does not amount to substantive proof and cannot take place of proof of fact necessary to other party’s case); DiLeo v. Nugent, supra, 88 Md. App. 71 (adverse inference that destroyed evidence would have been unfavorable does not itself amount to substantive proof that evidence is unfavorable); Burkowske v. Church Hospital Corp., 50 Md. App. 515, 523-24, 439 A.2d 40 (1982) (same); Jakel v. Brockelman Bros., Inc., 91 N.H. 453, 455, 21 A.2d 155 (1941) (proof of alleged suppression of evidence cannot take place of proof of facts necessary to recovery); F. R. Patch Mfg. Co. v. Protection Lodge No. 215, International Assn. of Machinists, supra, 77 Vt. 329 (inference “does not relieve the other party from introducing evidence tending affirmatively to prove his case so far as he has the burden”); Jones v. Lamm, 193 Va. 506, 510-11, 69 S.E.2d 430 (1952) (mere fact that evidence was
Accordingly, we conclude in this case that the trial court improperly rendered summary judgment. This, however, is not to say that summary judgment in favor of a defendant may never be appropriate. If, as a result of the innocent destruction of evidence, whether intentionally
This, however, is not the case before us. The motion for summary judgment was granted by the trial judge solely on the basis of the defendant’s argument that it was the appropriate remedy for penalizing the plaintiffs
The judgment is reversed and the case is remanded to the trial court for further proceedings.
In this opinion the other justices concurred.
The plaintiff John J. Hornyak died on December 18, 1995. We granted the plaintiffs’ motion to substitute as a party plaintiff John M. Hornyak, as executor of the estate of John J. Hornyak, in lieu of John J. Hornyak.
The plaintiffs also brought the action against the defendant Napoli Marine Service, Inc., but subsequently requested that the action against it be dismissed, which motion was granted by the trial court. Hereinafter, references to the defendant are to Bayliner Marine Corporation only.
The plaintiffs raise two issues on appeal: (1) Whether the trial court incorrectly granted the defendant’s motion for summary judgment against both of the plaintiffs, without considering the factual issues surrounding the disposal of the evidence, when one plaintiff innocently disposed of a piece of evidence three to four years after the accident; and (2) whether the trial court incorrectly granted the defendant’s motion for summary judgment when the defendant failed to plead spoliation as a special defense. With respect to the second issue, we find no authority that a defendant must plead spoliation as a special defense and therefore reject that claim.
“The standard for appellate review of a trial court decision to grant a motion for summary judgment is well established. Practice Book § 384 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . .Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue. . . . [S]ee Practice Book §§ 380 and 381. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Citations omitted; internal quotation marks omitted.) Haesche v. Kissner, 229 Conn. 213, 217, 640 A.2d 89 (1994).
Paragraph twenty-three of the complaint provides: “The defendant, Bay-liner Marine Corporation, is liable and legally responsible to the plaintiffs for their injuries in the following ways:
“(A) That the plaintiffs’ injuries and losses were caused by the defective and unreasonably dangerous condition of said boat in that, among other things, it was equipped with an improper shaft in its outboard motor; in that said boat was equipped with a defective steering wheel; in that said boat was equipped with a defective emergency shut down switch; in that said boat was equipped with an improperly wired kill switch; and in that said boat was not equipped with trim tabs.
“(B) The defendant, Bayliner Marine Corporation, was negligent and careless in the design, manufacture, assembly, construction, distribution and/ or sale of said boat in that:
“(1) It designed, manufactured, assembled, constructed, distributed and/ or sold said boat with defects described above;
“(2) I[n] that it failed to warn consumers such as the plaintiffs of the defective and unreasonably dangerous condition of said boat; and
“(3) It failed to adequately test and investigate the nature, properties and characteristics of said boat before placing it in the stream of commerce to insure that said boat would not operate dysfunctionally.
“(C) That the defendant breached its express and/or implied contract that said boat was of merchantable quality, fit and safe for the purposes for which it was intended.”
The insurer of Beers’ boat, Covenant Mutual Insurance Company, assigned the technical investigation of the accident to Spectrum Engineering Group, of which Michael F. Miller, a professional engineer, was a partner. Miller submitted a report to Covenant Mutual Insurance Company on November 11, 1987, detailing the results of his inspection and testing.
Beers, at his deposition, testified that he retained possession of the boat and its parts until the summer of 1990 or 1991, at which time he replaced the motor and kept it at his home “for a time” before giving it to a friend of his son “the following winter or early the following year.”
We recently decided the issue of spoliation of evidence in the context of a criminal case. See State v. Morales, 232 Conn. 707, 657 A.2d 585 (1995). In Morales, the police had seized the victim’s leather jacket as evidence of a sexual assault because of alleged semen stains on it. Following repeated requests by the victim, the police returned the leather jacket to her. This return tookplace prior to the defendant’s arrest for, inter alia, sexual assault. At trial, the defendant moved to dismiss the charges against him based on the failure of the police to preserve the victim’s jacket as evidence. Id., 712. The defendant “argued that the fact that the jacket was unavailable had irreparably harmed his ability to defend himself . . . .” Id. We noted that “[t]he defendant did not argue that the police, in returning the jacket to the victim, had acted in bad faith or that they had any motive for doing so other than accommodating the victim.” Id. We then employed a balancing test as required by the due process clause of our state constitution to determine “whether the failure of the police to preserve potentially useful evidence had deprived a criminal defendant of due process of law . . . .” Id., 719. The several factors to be weighed included “ ‘the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the jury, the reason for its nonavailability to the defense and the prejudice to the defendant caused by the unavailability of the evidence.’ ” Id., 719-20, quoting State v. Asherman, 193 Conn. 695, 724, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). Thus, even
We note that some jurisdictions have excluded a spoliator’s expert testimony as a sanction for spoliation of evidence. See American Family Ins. Co. v. Village Pontiac-GMC, Inc., 223 Ill. App. 3d 624, 627-29, 585 N.E.2d 1115 (1992) (sanction against plaintiffs for allowing most crucial evidence in case to be destroyed was exclusion of their expert witness or related evidence from trial; summary judgment subsequently rendered in favor of defendant based on plaintiffs’ inability to use any evidence concerning car’s condition); Nally v. Volkswagen of America, Inc., 405 Mass. 191, 197-98, 539 N.E.2d 1017 (1989) (where expert has removed evidence that may be material to litigation, expert should be precluded from testifying); Fire Ins. Exchange v. Zenith Radio Corp., 103 Nev. 648, 651, 747 P.2d 911 (1987) (party responsible for spoliation barred from presenting testimony of expert witness resulting in summary judgment for other party). Alternatively, dismissal of an action has been held to be an appropriate sanction. See Stubli v. Big D International Trucks, Inc., 107 Nev. 309, 313, 810 P.2d 785 (1991). We also reject these blanket approaches, which appear to be similarly grounded on punishing the spoliator.
Even if we were inclined to agree with the trial court, summary judgment should not have been rendered against Homyak, who did not, according to the record before us, participate in the spoliation of the evidence.
Some courts have required such intent, or other evidence of bad faith. See Brown & Williamson Tobacco Corp. v. Jacobson, 827 F.2d 1119, 1134 (7th Cir. 1987), cert. denied, 485 U.S. 993, 108 S. Ct. 1302, 99 L. Ed. 2d 512 (1988); State v. Langlet, supra, 283 N.W.2d 333 (“ ‘circumstances of the act [of spoliation] must manifest bad faith’ ”). We leave to another day the determination of the appropriate remedy when the spoliator’s intent had been to perpetrate a fraud, an issue not presently before us.
We note that the defendant in this case did not seek to compel disclosure, move for summary judgment or seek any other sanction until eight years after the incident, five years after the action was instituted and six months after the pleadings were closed.
Professor Tait points out: “Most inferences are affirmative in the sense that they tend to prove particular facts. In some situations, however, the inference may be a negative one. For example, the failure to produce evidence that would naturally be favorable creates an inference that such evidence would, in fact, have been unfavorable to the party’s cause. . . . Such negative inferences cannot supply proof of any particular fact. Accordingly, negative inferences do not help a party to establish a prima facie case and can be used only by the trier in weighing the evidence and determining the ultimate burden of persuasion.” C. Tait & J. LaPlante, supra, § 8.2.3.
See footnote 11 (issue of fraud is not before us).
See footnote 6.