OPINION OF THE COURT
The issue before us, one not yet considered by the Court of Appeals or this Court, is whether to recognize a cause of action for a negligent or reckless act of spoliation of evidence committed by one not a party or a potential party to the underlying claim to which the spoliated evidence relates. Under the circumstances presented, we decline to recognize a cause of action for “third-party spoliation” of evidence/impairment of claim or defense, either under principles of negligence law or as an independent tort. We thus conclude that Supreme Court properly granted the motion of defendant Royal Insurance Company (Royal) to dismiss the complaint against it.
I
In reviewing the determination of a motion to dismiss pursuant to CPLR 3211, we must accept as true the facts alleged in the complaint and in the submissions in opposition to the motion, accord the plaintiff the benefit of every possible favorable inference, and determine whether the facts alleged fit within any cognizable legal theory (see Sokoloff v Harriman Estates Dev. Corp.,
Plaintiff, MetLife Auto & Home (MetLife), commenced this action as subrogee of Michael Basil, MetLife’s insured under a homeowner’s policy. The claim to which MetLife is subrogated is for $330,888.64 in fire damage to the residence of Michael Basil and his wife. MetLife’s complaint names as defendants Joe Basil Chevrolet, Inc. (Basil Chevrolet), General Motors Corp. (General Motors), Speaker Shop, Inc. (Speaker Shop), and Royal, and asserts four causes of action. The first three causes of action seek recovery from Basil Chevrolet, General Motors and Speaker Shop for the $330,888.64 in fire damage on theories of negligence, breach of warranties, and strict products liability. The basis for that underlying claim is the allegation that the fire started in the dashboard of a 1999 Chev
This appeal concerns MetLife’s fourth cause of action, which is asserted against only Royal, the insurer of Basil Chevrolet and the Chevrolet Tahoe in question, and which likewise seeks recovery of $330,888.64. MetLife alleges that, after the fire, Rоyal “made arrangements to safeguard the integrity of the subject 1999 Chevrolet Tahoe and [placed it] at a storage lot [or salvage yard] under the direct supervision, control and observation of its duly authorized agent”; that “General Motors [,] Royal * * * [and MetLife] arranged for a joint inspection/ testing of the subject vehicle on or about the 6th day of November, 2000 at the storage lot of’ Royal’s agent; but that, shortly before the inspection, MetLife learned “from the retained expert of [Royal] that the vehicle had been sold and removed from the storage lot and * * * substantially altered such that there was no chance to do a detailed, scientific and thorough analysis to determine the cause of the subject fire and resultant damage.” MetLife alleges that, “as a result of the negligence, carelessness and recklessness of [Royal], invaluable, necessary and important evidence has been destroyed and lost[,] thereby irrevocably impairing [MetLife’s] right to pursue successfully the defendants [Basil Chevrolet, General Motors and Speaker Shop].”
Aсcording to the averments of Mark D. Hagen, MetLife’s subrogation adjustor, Royal “took possession” of the vehicle “as owner” upon indemnifying its insured, Basil Chevrolet, for the fire damage to the vehicle. Hagen subsequently asked both Royal and the salvage yard to preserve the vehicle for examination by MetLife and its experts. He was assured that Royal would “preserve and maintain the integrity of the vehicle so that a detailed cause and origin investigation could be performed.” After an inspection had been scheduled by the various parties, Royal’s expert notified Hagen that “Royal * * *, through [its] agent the salvage yard, had disposed of the vehicle,” and that “the new owner of the vehicle had disassembled it, making a scientific cause and origin examination impossible.”
II
The court granted the motion of Royal to dismiss the complaint against it and denied MetLife’s motion.
Ill
Cases imposing an obligation to preserve and disclose evidence, and subjecting a party to statutory (see CPLR 3126) or common-law sanctions in the event of its failure to do so, are legion (see e.g. Foncette v LA Express,
Traditionally, spoliation has been defined as the “intentional destruction, mutilation, alteration, or concealment of evidence,
We are not concerned here with allegations of intentional spoliation (see generally Annotation, Intentional Spoliation of Evidence, Interfering with Prospective Civil Action, as Actionable, 70 ALR4th 984), but rather with alleged negligence or recklessness in the loss or destruction of evidence (see generally Annotation, Negligent Spoliation of Evidence, Interfering with Prospective Civil Action, as Actionable, 101 ALRSth 61). Despite the allegations of fault on the part of Royal itself, we are concerned not with Royal’s own direct loss or destruction of the evidence, but with Royal’s allegedly permitting the evidence to be lost or destroyed by another entity, i.e., the storage lot or salvage yard allegedly employed as Royal’s agent. Moreover, we are concerned with an attempt to impose liability for spoliation not on a party (i.e., a litigant or potential litigant) to the underlying claim (see generally id. § 3 [a]),
The viability of a cause of action for spoliation of evidence— whether alleged under general principles of negligence law or as an independent intentional or nonintentionаl tort and whether alleged against a first party or third party — has been the subject of much case law and commentary. A cause of action for spoliation of evidence appears to have been first recognized in 1973 (see Pirocchi v Liberty Mut. Ins. Co.,
IV
Before addressing the case law in New York concerning this issue, we look to the case law in other jurisdictions. The great weight of authority runs against recognizing a common-law duty to preserve evidence or a causе of action for spoliation of evidence/impairment of claim or defense under almost any circumstances, even when the conduct is alleged to have been intentionally committed by a party to the underlying claim
In contrast, those decisions that permit a cause of action for even an intentional act of spoliation by a third party are comparatively few (see e.g. Ricketts v Eastern Idaho Equip., Co., Inc.,
A handful of New York cases recognize an independent cause of action for third-party spoliation, although all such cases are factually distinguishable from this case. Moreover, most such cases are narrowly confined to the scenario in which an employee sues his employer for its spoliation of evidence and consequent impairment of the employee’s claim against a third-рarty tortfeasor. Even under that line of cases, however, the duty to preserve evidence imposed upon the employer in that situation is rather limited (see Ripepe v Crown Equip. Corp.,
An appellate decision that appears to reject on the facts an independent claim for intentional spoliation of evidence by a third party (other than by an employer) is that of the First Department in Steinman v Barclays Bank (
Another case of alleged spoliation by а third-party insurer is Sterbenz (
Here, in contradistinction to the situation in both Fada Indus. and Sterbenz, there is no relationship between Royal, the dеfendant insurer, and MetLife, the plaintiff (or its subrogor, Michael Basil). MetLife is not the insured of the defendant but rather merely a potential claimant (by subrogation) against Royal’s insured, Basil Chevrolet. It is thus impossible here to formulate a duty to preserve evidence running from Royal to MetLife (or to Michael Basil, MetLife’s subrogor)
VI
Recognition of a cause of action for third-party spoliation is fraught with pitfalls. Foremost among them is the notion of placing a third party under a duty to preserve evidence for the benefit of strangers and in anticipation of as-yet-uncommenced litigation (see Fletcher, 437 Mass at 548,
Another pitfall concerns the societal costs of mandating the preservation of anything that might conceivably be or become evidence (see Temple Community Hosp., 20 Cal 4th at 476,
In that connection, we note that many vehicles relegated to a salvage yard would ordinarily constitute relevant evidence of at least a potential property damage claim (see Edwards,
“[a] separate tort remedy would be subject to abuse,for in many cases potentially relevant evidence will no longer exist at the time of trial, not because it was intentionally destroyed but simply because it has been discarded or misplaced in the ordinary course of events. (Comment, Spoliation of Evidence: A Troubling New Tort (1989) 37 U. Kan. L. Rev. 563, 592 [‘A new cause of action could accrue еach time a plaintiff loses a lawsuit, for in most cases there is likely to be some piece of potential evidence that is not available at the time of trial.’].)” (Cedars-Sinai Med. Ctr., 18 Cal 4th at 15, 954 P2d at 519 .)
The foregoing considerations lead us to conclude that it would be extremely difficult if not impossible to rationally limit, explicitly define, and coherently articulate the outer limits of any judicially-declared duty on the part of third parties to preserve evidence for the benefit of litigants or potential litigants (see Koplin, 241 Kan at 208-215,
There would be even greater potential difficultiеs with the mechanics of a cause of action for third-party spoliation of evidence, if one were to be recognized. The most obvious of those would be the impossibility in most circumstances of ascertaining the precise nature or substance of the lost or destroyed evidence (see Goff,
Regardless of which underlying party is deemed to have been injured by the loss of the evidence, it would nonetheless be extremely difficult to establish causation, i.e., a link between the unavailability of the evidence and any assumed impairment of the claim or defense (see Fletcher, 437 Mass at 548,
“would create the risk of erroneous determinations of spoliation liability (that is, findings of liability in cases in which availability of the spoliated evidence would not have changed the outcome of the underlying litigation). An erroneous determination of spoliation liability would enable the spoliation victim to recover damages, or avoid liability, for the underlying cause of action when the spoliation victim would not have done so had the evidence been in existence” (Cedars-Sinai Med. Ctr., 18 Cal 4th at 15,954 P2d at 519 ).
At bottom, the insurmountable problem is the intrinsic circularity of any allegation that the underlying claim has been defeated or lost as a result of the spoliation of evidence. As has been noted:
“To establish causаtion and damages, the plaintiff would have to show that the [actual or hypothetical] jury in the underlying action would have found differently if the original, unaltered item of evidence had been before them. Such a showing requires proof of the very thing that can no longerbe proved: the precise nature of the original item. If the contents or salient characteristics of the original item can still be shown, then they can be [or could have been] shown in the underlying action and there is no damage from any ‘spoliation.’ If they cannot be shоwn, then the jury in the spoliation action could only surmise whether the item in its original state would in fact have been favorable to the party now claiming to have suffered a loss on account of that spoliation. And, it would be the utmost of surmise and speculation for the jury to decide what persuasive effect that item, if still available in its original state, would have had on the [actual or hypothetical] jury in the underlying action. Ultimately, such claims are inherently circular, calling on one jury to revisit what another jury ha[s] already decided [or might have decided] and to determine whether something that still cannot be shown would, had it been available, have changed that original [or hypothetical] jury’s opinion” (Fletcher, 437 Mass at 551-552, 773 NE2d at 426-427 ).
Even if the fact of harm can be ascertained or assumed, it would be virtually impossible to measure the degree of harm and the precise extent of damages, and any attempt to do so would involve inherent and irreducible speculation (see Trevino,
Finally, there is the risk of generating a spiral of contemporaneous or subsequent collateral or satellite litigation based on allegations of spoliating conduct committed nоt only in advance of, but also throughout, the prosecution of the underlying claim (see Temple Community Hosp., 20 Cal 4th at 472, 976 P2d at
“In sum, we conclude that the benefits of recognizing a tort cause of action, in order to deter third party spoliation of evidence and compensate victims of such misconduct, are outweighed by the burden to litigants, witnesses, and the judicial system that would be imposed by potentially endless litigation over a speculative loss, and by the cost to society of promoting onerous record and evidence retention policies” (Temple Community Hosp., 20 Cal 4th at 478,
Accordingly, the order should be affirmed.
Hayes, J.P., Hurlbutt, Burns and Lawton, JJ., concur.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed, with costs.
Notes
. The order also dismissed or otherwise refused to permit cross claims against Royal for spoliation of evidence/impairment of defense. Absent cross appeals by the codefendants, we will not address the viability of such cross claims, nor will we address the other provisions of the order. Further, in view of our decision, wе need not address the contention of MetLife that it is entitled to summary judgment on its cause of action for spoliation of evidence.
. This has been called “first-party spoliation.”
. This has been called “third-party spoliation.”
. We catalog holdings such as this because those courts that do not recognize a cause of action for intentional spoliation certainly would not recognize one for negligent spoliation, and because it stands to reason that those courts that do not recognize such a cause of action against a first party likewise would not recognize one against a third party. As stаted by one court, it would be anomalous — “a strange outcome indeed” — “for a nonparty to be liable in damages * * * for conduct that would not give rise to tort liability if committed by a party” (Temple Community Hosp. v Superior Ct., 20 Cal 4th 464, 466, 477,
. We have no occasion here to address whether Royal might be deemed to have been acting as the agent of its insured, Basil Chevrolet, when it lost the critical evidence, thereby potentially subjecting Basil Chevrolet to the typical range of statutory and common-law sanctions available against a litigant responsible for the loss or destruction of evidence.