Plаintiffs appeal as of right the trial court order granting defendants’ motion for summary disposition in this products liability action. We affirm.
On July 9, 1997, plaintiff Nancy Bloemendaal picked up her newly purchased Honda Rebel motorcycle from defendant Town & Country Sрorts Center, Inc. After driving less than one mile from the dealership, she lost control of and crashed the motorcycle. Immediately after the accident, plaintiffs had the motorcycle impounded and retained several experts to disassemblе and inspect it. This inspection allegedly revealed damage to the ball bearings and races located in the steering system. The components were then sent to a metallurgical expert, who allegedly opined that the bearing adjusting nut had bеen undertorqued. Defendants were not present at the inspections or disassembly.
Plaintiffs thereafter filed suit against defendant Town & Country for failing to properly assemble and inspect the motorcycle. Plaintiffs subsequently amended their complaint to include claims against the defendants American Honda Motor Co, Inc., and Honda Motor Co, Ltd., for failure to properly design and manufacture the motorcycle, as well as breach of warranty claims. The Honda defendants conducted a demonstrative riding with an exemplar motorcycle containing the steering components from the accident motorcycle. It is alleged that this exemplar motorcycle was operated without difficulty for twenty-five miles while being driven through curves that duplicated the radius of the curve where the accident occurred.
The Honda defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(10), which defendant Town & Country adopted. Defendants argued that summary disposition was appropriate because plaintiffs intentionally or negligently destroyеd crucial physical evidence by disassembling the motorcycle without testing the torque that had been applied to the bearing adjusting nut. 1 According to defendants, the testing of the torque would have been determinative of this case and because оf the spoliation of the evidence, dismissal was warranted. In the alternative, defendants argued that plaintiffs’ experts were unqualified to render opinions in this matter and that plaintiffs could not establish proximate cause.
Plaintiffs argued that there was nо spoliation of evidence because none of the evidence was lost or destroyed. Plaintiffs argued that defendants were not prejudiced by the failure to use a torque wrench
At the hearing on the motion for summary disposition, the trial court found that the entire casе revolved around the question whether the bearing adjusting nut had been undertorqued. The court granted summary disposition on the basis that plaintiffs’ experts failed to torque or measure the bearings, did not index the bearings, and lost one bearing. The court concluded that had plaintiffs’ experts measured the torque, it “probably would’ve decided this once and for all,” or it could have been major evidence for defendants. Specifically, the court stated:
Now, I’m sure that plaintiff [sic] didn’t do this deliberately, but plaintiff is the one that selected the expert. And his autopsy was done ineptly, by people who were unquali fied to do it. They weren’t experienced in motorcycles. It was anything hut scientific. It was anything but following accepted standards.
I look at possiblе remedies. Not permitting plaintiffs’ experts to testify that it was too loose or too tight isn’t going to solve the problem at all. An instruction isn’t going to solve the problem. I think that the defendants are fatally prejudiced by this. Much more than putting them at an unfair advantage. Much, much more than that. I think that the — and I’ve been thinking about this, quite frankly, for weeks. The motion is granted.
The trial court dismissed this case by granting defendants’ motion for summary disposition, but did not specify the court rule under which it granted the motion. However, it is clear the cоurt dismissed the case as a sanction for plaintiffs’ failure to preserve evidence. Because MCR 2.116 is not a rule of sanction, the trial court’s method of dismissing this case was incorrect. See
Brenner v Kolk,
A trial court has the authority, derived from its inherent powers, to sanction a party for failing to preserve evidence that it knows or should know is relevant before litigation is commenced.
MASB-SEG Property/Casualty Pool, Inc v Metalux,
This Court’s decision in
Brenner, supra,
is instructive in this case. In
Brenner,
the plaintiff brought suit after she was injured while driving the defendant’s automobile. Although the plaintiff rеmoved part of the allegedly defective seat belt, the entire car was demolished before any other evidence could be retrieved. This Court found that, in . a case involving a party’s failure to preserve evidence, a trial court рroperly exercises its discretion when it carefully fashions a sanction that denies the party
Here, plaintiffs argue thаt sanctions for spoliation are not appropriate in this case because no evidence was lost or destroyed. However, spoliation may occur by the failure to preserve crucial evidence, even though the evidence was not technically lost or destroyed. See
id.
at 161-162. “Even when an action has not been commenced and there is only a potential for litigation, the litigant is under a duty to preserve evidence that it knows or reasonably should know is relevant to the action.”
Id.
at 162, citing
Fire Ins Exchange v Zenith Radio Corp,
103 Nev 648, 651;
In this case, plaintiffs were aware of the possibility of a problem with the steering mechanism at the time of the inspection. 2 Plaintiffs’ expert, Paul Cross, testified that before the disassembly of the motorcycle, he knew that there might be something wrong with the steering components and he knew litigation was likely. He knew that the bearing adjusting nut on the motorcycle was supposed to be torqued to a particular setting and he knew how to check for torque on the bearing adjusting nut by using a torque wrench or conducting a steering pre-load test. He also admitted that if the torque was not checked in one of these ways during disassembly, the conclusive evidence regarding whether the bearing adjusting nut was properly torqued would be lost forever. Plaintiffs’ metаllurgical expert, Dr. Paul Trojan, also testified that the best way to determine whether the bearing adjusting nut was properly torqued would be to use a torque wrench when the component was disassembled.
Plaintiffs make much of the fact that although the torque оf the bearing adjusting nut was not tested, the disassembly process was videotaped and photographed so defendants had the opportunity to view the entire process. Plaintiffs claim that negligence can be shown by the damage shown on the bearings. Plaintiffs further argue that defendants have not been prejudiced by the alleged spoliation because defen dants have been able to disprove plaintiffs’ negligence theory by performing their own inspections and tests.
The court did not base its decision on any actual piece of the motorcycle being lost or destroyed. Rather, while disassembling the motorcycle, plaintiffs’ experts failed to test a certain part of the motorcycle that was essential to their ultimate theory of liability. Because this test can no longer be duplicated because the bearing adjusting nut has been removed, the failure to conduct the test amounts to the failure to preserve evidence. This test would have been evidence of whethеr the bearing adjusting nut was properly torqued — a theory plaintiffs should have been
We conclude that the trial court did not abuse its discretion in determining that a sanction against plaintiffs would be appropriate. However, we must now determine whether the actual sanction imposed by the triаl court — dismissal—was the appropriate sanction. “Dismissal is a drastic step that should be taken cautiously.” Brenner,
supra
at 163. Before imposing the sanction of dismissal, the trial court must carefully evaluate all available options on the record аnd conclude that dismissal is just and proper.
Id.,
citing
Vicencio v Ramirez,
In Brenner, this Court decided that although sanctions were appropriate, the trial court abused its discretion in dismissing the case because the record did not demonstrate the egregious conduct that would wаrrant dismissal. Brenner, supra at 163. This Court determined that the trial court should have considered lesser sanctions, such as excluding any evidence that was unfairly prejudicial to the defendant. Id. at 164. Alternatively, this Court held that if the trial court meant to exclude the evidence and then grant summary disposition because the plaintiff could not make out a prima facie case, the trial court had to state on the record that it carefully fashioned the sanction to deny the plaintiff the fruits of her conduct. Id.
Here, thе trial court stated that it looked at the possible remedies, including not allowing plaintiffs’ experts to testify that the bearing adjusting nut was too loose or too tight and giving an instruction regarding the matter, and concluded that the possible remedies would be insufficient to cure the prejudice to defendants. Although plaintiffs have produced evidence that the actual ball bearings are damaged and defendants were able to conduct a test with an exemplar motorcycle, the use of a torque wrench at the time of disassembly would have shown whether the bearing adjusting nut had been properly torqued. Plaintiffs’ theory of liability hinged on whether the bearing adjusting nut was properly torqued. Because the trial court looked at other remedies and concluded they were insufficient to overcome the prejudice, we cannot conclude that dismissal was an abuse of discretion.
Because we find dismissal was appropriate, we decline to address defendants’ alternate theories for аffirming the trial court’s grant of summary disposition.
Affirmed.
Notes
According to defendants, whether the bearing adjusting nut was properly torqued could have been determined by the use of a torque wrench at the time of disassembly.
In their appellate brief, plaintiffs refer to an аffidavit signed by Donald Van Kirk, who also took part in the inspection of the motorcycle. In this affidavit, Van Kirk asserts that on the basis of his preliminary examination of the motorcycle, he had no reason to believe torque was an issue. This affidavit was signed аfter the trial court granted summary disposition and was provided with plaintiffs’ motion for reconsideration; therefore, the trial court could not have considered the affidavit in granting summary disposition. Because plaintiffs could have produced this affidavit earlier in the case and did not, we decline to consider it.