Lead Opinion
Plaintiff appeals as of right the trial court’s order granting summary disposition in favor of defendant Allstate Insurance Company. Because Michigan does not yet recognize as a valid cause of action spoliation of evidence that interferes with a prospective civil action against a third party, we affirm.
Plaintiff initiated this action after a fire broke out in his family’s rented apartment, causing the death of his wife, Lillian Teel, and extensive damage to the apartment. Allstate, the liability insurer for the property pursuant to a policy issued to defendant Doris Meredith, the owner/landlord of the apartment, sent a representative to the apartment, without notice to or the presence of plaintiff, to inspect the apartment. Apparently, during the inspection, the investigator altered the scene and removed certain items from the apartment, thereby allegedly spoiling evidence concerning the origin and cause of the fire and affecting
On appeal, plaintiff asserts that the trial court erred by granting summary disposition because the complaint presented sufficient allegations to establish a claim of intentional or negligent spoliation of evidence that interferes with a civil action against, a third-party and that Michigan should recognize the same as an actionable tort. We disagree.
This Court reviews de novo a trial court’s decision regarding a motion for summary disposition pursuant to MCR 2.116(C)(8). Kisiel v Holz,
In arguing that the trial court erred, plaintiff cites Panich v Iron Wood Products Corp,
The function of this Court is to correct errors. Burns v Detroit (On Remand),
As Justice WEAVER has stated in a concurring opinion, “[t]he legislative power includes the power to create new legal rights. And, where the Legislature chooses, it may exercise its discretion to create and define new causes of action.” Nat’l Wildlife Federation v Cleveland Cliffs Iron Co,
There are certainly considerations that would support the recognition of an independent tort claim for
The traditional response to the problem of evidence spoliation frames the alleged wrong as an evidentiary concept, not as a separate cause of action. The proposed cause of action carries with it many potential concerns and effects, resulting in more complications than clarifications. For example, the scope of a duty to preserve evidence would need to be defined. It would be unreasonable to impose a boundless scope of duty to preserve evidence, particularly where the spoiler of evidence is a third party, i.e., not a party alleged to have committed the wrong that serves as the basis for the underlying or potential litigation. The extent and the amount of damages in a spoliation case are also highly speculative, because it is impossible to know what the destroyed evidence would have shown, and there is no way to determine whether a plaintiff would have had a significant possibility of success in the potential civil action if the evidence were available. It would prove difficult for a trier of fact to meaningfully assess what role the missing evidence would have played in the determination of the underlying action and, if the evidence would not actually have helped to establish a plaintiffs case, an award of damages for its destruction would work as a windfall to the plaintiff.
The Legislature would have the resources and tools needed to investigate the consequences of the proposed cause of action and to study the long-term effects of the
Contrary to the dissent’s assertions, by permitting this case to proceed, we would not simply be recognizing the existence of a legal “duty”
*666 Although the caution engendered by our difficulty in identifying, much less weighing, the potential costs and benefits of a decision in plaintiffs’ favor is an important factor militating against recognizing plaintiffs’ proposed cause of action, there is a stronger prudential principle at work here: the judiciary’s obligation to exercise caution and to defer to the Legislature when called upon to make a new and potentially societally dislocating change to the common law.
Ours, after all, is a government founded on the principle of separation of powers. In certain instances, the principle of separation of powers is an affirmative constitutional bar on policy-making of this Court. In other cases, however, the separation of powers considerations may operate as a prudential bar to judicial policy-making in the common-law arena. This is so when we are asked to modify the common law in a way that may lead to dramatic reallocation of societal benefits and burdens. [Emphasis in original.]
Were we persuaded to ignore the Legislature’s pervasive role in this area of law and feel inclined to create a new cause of action, prudence would counsel against it because such a significant departure from Michigan law should only come from our Supreme Court, not an intermediate appellate court. See Dahlman v Oakland Univ,
Moreover, if we were to adopt the reasoning of the dissent and recognize an independent cause of action for spoliation of evidence as merely a remedy for a violation of the already-established right to the preservation of evidence, we would nevertheless decline to find such remedy appropriate under the specific facts and circumstances before us. First, there are remedies available to a party claiming prejudice resulting from the loss or destruction of evidence. When a party destroys or loses material evidence, whether intentionally or unintentionally, and the other party is unfairly prejudiced because it is unable to challenge or respond
We acknowledge that there is a distinction between the destruction of evidence by a party to the underlying litigation and spoliation of evidence by a third party in that not all the litigation-related remedies for spoliation are applicable to third parties. However, as aptly observed in Dowdle Butane Gas Co, Inc v Moore, 831 So 2d 1124, 1132 (Miss, 2002):
The victim of third party spoliation, however, is not entirely helpless. Some discovery sanctions are available to punish third party spoliation, including monetary and contempt sanctions against persons who flout the discovery process by suppressing or destroying evidence. A criminal sanction remains available under Penal Code section 135, as are disciplinary sanctions against attorneys who may be involved in spoliation. As we have pointed out, the victim of third party spoliation may deflect the impact of the spoliation on his or her case by demonstrating why the spoliated evidence is missing. It also may be possible to establish a connection between the spoliator and a party to the litigation sufficient to invoke the sanctions applicable to spoliation by a party. We do not believe that the distinction between the sanctions available to victims of first party and third party spoliation should lead us to employ the burdensome and inaccurate instrument of derivative tort litigation in the case of third party spoliation. We observe that to the extent a duty to preserve evidence is imposed by statute or regulation upon the third party, the Legislature or the regulatory body that has imposed this duty generally will possess the authority to devise an effective sanction for*668 violations of that duty. To the extent third parties may have a contractual obligation to preserve evidence, contract remedies, including agreed-upon liquidated damages, may be available for breach of the contractual duty. Criminal sanctions, of course, also remain available.
Where, as here, a plaintiff has not alleged or demonstrated a complete lack of an available remedy for the spoliation of evidence by a third party, we decline to announce an as-yet unrecognized cause of action as the single appropriate remedy.
In addition, very few states recognize spoliation of evidence as an independent tort, and those that do have not only faced considerable disapproval, but have varied among themselves in the parameters and application of such a tort. Notably, the state generally acknowledged as providing the origin of a distinct cause of action for the tort of spoliation of evidence, California (in Smith v Superior Court of Los Angeles Co, 151 Cal App 3d 491; 198 Cal Rptr 829 [1984]), has recently moved away from its prior holding. In Cedars-Sinai Medical Ctr v Superior Court of Los Angeles Co, 18 Cal 4th 1, 17-18; 74 Cal Rptr 2d 248;
More recently, in Temple Community Hosp v Superior Court of Los Angeles, 20 Cal 4th 464; 84 Cal Rptr 2d 852;
*669 [T]he burdens and costs of recognizing a tort remedy for third party spoliation are considerable — perhaps even greater than in the case of first party spoliation. The same burdens identified in Cedars-Sinai exist, namely, jury confusion and the potential for abuse in bringing the action and for inaccurate and arbitrary verdicts, magnified by the potential for punitive damages, as well as the obvious burden to the judicial system, litigants, and witnesses, inherent in derivative litigation. Beyond these burdens, in the case of third party spoliation additional burdens arise from the circumstance that the class of potential plaintiffs and defendants is greatly expanded. As noted, both parties in the underlying litigation may be injured by a third party’s single act of destruction of evidence, thereby giving rise to two claims with potentially inconsistent or duplicative verdicts.... In addition, although spoliation claims between parties have an inherently limited number of potential defendants, if spoliation by nonparties were actionable in tort, the cast of potential defendants would be much larger. We believe the broad threat of potential liability, including that for punitive damages, might well cause numerous persons and enterprises to undertake wasteful and unnecessary record and evidence retention practices. [Id. at 476 (citation omitted; emphasis in original).]
Given that the majority of states recognizing a cause of action for spoliation of evidence generally relied heavily on California’s now disapproved-of Smith v Superior Court case, the strength and longevity of the other states’ opinions are in question. Moreover, while we are certainly not bound by out-of-state decisions, we do find the rationale employed in Temple compelling.
In any event, the states recognizing such a cause of action appear to base their recognition on a few key, interrelated factors: exclusive possession of the evidence by the person or company that ultimately destroys the evidence; knowledge of a potential lawsuit involving the evidence; and a specific duty to preserve
In Thompson v Owensby,
A liability carrier like the Insurance Company can rationally be held to understand that once a claim is filed, there is a possibility of litigation concerning the underlying injuries. The Insurance Company’s knowledge and investigation of the Thompsons’ claims and its possession of what would be a key item of evidence in the event litigation ensued created a relationship between the Company and*671 the Thompsons that weighs in favor of recognizing a cognizable duty to maintain evidence.
. . . Further, the foreseeability of the harm in losing evidence can be inferred from the allegation that the Company’s investigator took possession of the cable: if an insurance carrier’s investigator deems certain evidence important enough to be collected, it is foreseeable that loss of the evidence would interfere with a claimant’s ability to prove the underlying claim. [Id. at 137-138.]
See, also, the Alabama case of Smith v Atkinson, 771 So 2d 429 (Ala, 2000).
Here, assuming that Allstate was aware of a potential lawsuit at the time it inspected plaintiffs apartment, it did not have exclusive possession of the fan or lamp that plaintiff alleges may have caused the fire. It should be noted that before Allstate’s investigation of the scene, the Detroit Fire Department’s arson section and the Michigan State Police investigated and prepared reports concerning the fire. The arson section’s investigative report concluded that the fire originated within a leather loveseat in the living room of the apartment. However, the cause of the fire was listed as “undetermined” by both the Detroit Fire Department and the Michigan State Police. Approximately one week after the fire, the fire investigator hired by Allstate performed his inspection. The Allstate investigator never removed the fan or the lamp from the apartment and only removed two smoke detectors, some fire debris, and a carpet sample. The investigator did not believe that either the fan or the lamp had been a source of igniting the loveseat. Allstate maintains that the items collected by the investigator have been preserved, although plaintiff has never requested to see them. Where Allstate was at least the third entity to inspect the apartment and at no time removed or otherwise took possession of the items plaintiff now alleges may
With regard to a cognizable duty to preserve evidence, as previously discussed, we believe that identifying the existence and parameters of such a duty is best left to our Legislature. Other states have recognized a duty to preserve evidence where there has been a voluntary undertaking to preserve the evidence or a promise to maintain the evidence (see, e.g., Smith v Atkinson) or where special circumstances surrounding the relationship of a potential plaintiff with a holder of evidence exist. While plaintiff contends that a special relationship between Allstate and plaintiff was created by virtue of Allstate’s undertaking to investigate the scene, plaintiffs reliance on Thompson to support this conclusion is misplaced. Instrumental in the Thompson court’s determination that the insurer had a duty to preserve evidence was the fact that the insurer took exclusive possession of the potential evidence.
Plaintiff has not articulated any basis for imposing a specific duty on Allstate to preserve or maintain the
Finally, this case is similar to American Nat’l Prop and Cas Co v Wilmoth,
Affirmed.
Notes
The dissent mistakenly conflates the ordinary job of a common-law judge to decide whether there is a legal “duty” in the first instance in a garden variety tort case with the much different question before us: whether the state of Michigan should create an entirely new cause of action in an arena, insurance, that is comprehensively regulated by the Legislature.
Plaintiff does not assert that Allstate actually took possession of any specific item of potential evidentiary value and then destroyed it or lost it. Instead, the crux of his complaint is that Allstate, by undertaking the inspection of the premises, assumed control and should have prevented anyone else (including the owner) from entering the apartment, taking possession of any items in the apartment, or renovating or repairing the apartment.
As pointed out in the dissent, Ricky Teel “was medically not competent.”
Dissenting Opinion
(dissenting). I respectfully dissent. As the majority explains, our system of government allocates the development of new rights to the legislative branch. However, the majority gives inadequate recognition to the judiciary’s traditional and proper role of developing new remedies for violations of established rights. That distinction is everything at this stage of this case.
“ ‘Wherever there is a valuable right and an injury to it, with consequent damage, the obligation is upon the law to devise and enforce such form and mode of redress as will make the most complete reparation.’ ” Cooley, A Treatise on the Law of Torts, § 4, pp 7-8 (J. Lewis ed, 3d ed, 1907), quoting Foot v Card,
Relevant to this case, in addition to the spoliation action upheld in Creek, Michigan law has long recognized that destruction of evidence by a party to a suit gives rise to a presumption that the evidence would have been harmful to that party’s case. Pitcher v Rogers’ Estate,
In Brenner v Kolk,
Critically, this Court recognized that “[e]ven 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 Exch v Zenith Radio Corp, 103 Nev 648, 651;
Although the cases in Michigan have, thus far, only addressed spoliation of evidence by litigants, spoliation of evidence is nevertheless recognized as a legally wrongful act. In other words, there is already a well-established right of a litigant in Michigan to the integrity of evidence in a lawsuit. It follows that the courts are not only empowered, but obligated to provide a remedy for violations of that right.
The harm flowing from spoliation of evidence is, at a minimum, the inability to put on a full claim or full defense. In this case, the harm is much worse. Here, one person died, and another was hospitalized. Because the evidence was allegedly destroyed by an agency that had every reason to expect future litigation, plaintiff cannot proceed to the presentation of proofs on his claims. If the spoliator of evidence is already a party to the relevant litigation, it is straightforward matter for the court to impose a sanction as compensation. But if the spoliator of evidence is not a party, the same way of compensating for the spoliation is either impossible or unjust: the end result effectively punishes a party that has done nothing wrong. The reason why this Court should recognize a cause of action for spoliation of
I understand that relatively few other states have recognized a cause of action for spoliation of evidence. See, e.g., the cases enumerated in Trevino v Ortega,
The facts in this case are particularly compelling. Even though the insurer was not a party (and likely could not have been, given that there is no suggestion that the insurer caused the fire), the insurer or its agent had every reason to anticipate future litigation based on the nature of the occurrence and the known injury and loss of life. The insurer acted without notice to the tenants of the apartment. The landlord gave the insurer access. Mrs. Teel had died in the fire, and Mr. Teel was
The majority’s analysis places would-be plaintiffs in an impossible situation if evidence is destroyed by a nonparty. There are, indeed, existing mechanisms to deal with the destruction of evidence by another party, but in this case, those mechanisms are unavailable because the injured party cannot even get into court. At most, the majority points out that in some instances, the injured party may be able to moderate the resulting harm to some extent; but even presuming the existence of criminal sanctions against whomever destroyed the evidence, imposition of those sanctions would not help the injured party bring a now-unavailable lawsuit. If the would-be plaintiff cannot even get into court because the evidence has been destroyed, none of the theoretical “remedies” suggested by the majority would be available. The only way to remedy such a harm is to permit this kind of a cause of action.
Furthermore, the majority arrives at a disturbing factual conclusion: that, notwithstanding the fact that Lillian Teel died in the fire and Ricky Teel was in the
I would hold that, where an individual’s ability to pursue or defend an action has been impaired by a third party’s willful or negligent spoliation of evidence, that individual may pursue a tort action against the spoliator. This would not create any new rights; it would merely provide a means of protecting rights already recognized to exist in the jurisprudence of this state. Although it is the role of the Legislature to craft new rights, it is the role of the courts to ensure — by crafting new remedies if necessary — that people who suffer an invasion of their rights have a meaningful way to be made whole.
I would reverse.
It is worth noting that, in an action like this, some kind of scienter must be present: the individual who spoils evidence “must have had at least a fair chance of avoiding the infliction of harm before he becomes answerable for such a consequence of his conduct.” See Holmes, The Common Law (1881), p 163. Thus, a person with no reasonable basis to know that spoiled evidence was evidence should not he held to an essentially unknowable duty. Although this may present a proof problem, as could demonstration of damages, such difficulties are routinely dealt with by trial courts as a matter of course.
The inspector stated that he had been advised that Ricky “was medically not competent.”