MEMORANDUM OPINION AND ORDER
Plaintiffs bring this action seeking damages for a leg injury sustained by Mr. Wilson while working for defendant International Paper Company (IPC). Wilson was awarded workers’ compensation benefits, and then brought this action against Beloit Corporation, the manufacturer of the machine which allegedly caused the injury. When Wilson sought to obtain certain component parts of the machine, it was discovered that the parts were missing. Wilson then brought IPC into this action on the theory that IPC either intentionally destroyed or negligently lost the parts, thereby irreparably damaging his lawsuit against Beloit.
IPC moved for summary judgment on the theory that Wilson’s claim against it was an attempt to circumvent the exclusivity provisions of the Arkansas Workers’ Compensation Law. At the conclusion of a hearing on December 17, 1987, the Court granted IPC’s motion for summary judgment, and Wilson appealed.
On March 16, 1989, the Eighth Circuit Court of Appeals entered an opinion reversing the ruling of this Court, and remanding for further consideration.
See
By a letter dated September 19, 1989, the Court requested counsel to submit briefs on the issue of IPC’s duty to preserve the parts. Counsel have submitted briefs in accordance with the Court’s direction, and the Court is now ready to rule on this issue.
In the case of
Koplin v. Rosel Well Perforators, Inc.,
Absent some special relationship or duty arising by reason of an agreement, contract, statute, or other special circumstance, the general rule is that there is no duty to preserve possible evidence for another party to aid that party in some future legal action against a third party.
1. DID IPC HAVE A STATUTORY DUTY TO PRESERVE THE COMPONENT PARTS FOR THE INJURED EMPLOYEE? IPC argues that there is no statutory duty to preserve the parts. Wilson cites two criminal statutes, Ark.Code Ann. §§ 5-53-110 and 5-53-111, which proscribe tampering with an official proceeding or investigation, and tampering with physical evidence, respectively. In
Coley v. Amot Ogden Memorial Hospital,
Here, Wilson does not know if the parts were intentionally destroyed or negligently lost. Because Wilson cannot state with certainty what happened to the parts, leaving open the possibility that mere negligence may be to blame, it would certainly not be appropriate to invoke a criminal statute which requires intent.
The Court is unable to find any statute which would impose upon IPC a duty to preserve the parts under the facts presented here. The Court therefore concludes that no statutory duty exists.
II. DOES ARKANSAS TORT LAW IMPOSE A DUTY TO PRESERVE EVIDENCE? Neither Wilson nor IPC cite any principle of Arkansas tort law which would impose a duty on IPC to preserve the parts. The Court has been unable to find an Arkansas case which has imposed such a duty. It is well established that the right to recover for injuries sustained from neglect is based upon violation of a duty, and where there is no duty, there can be no neglect.
Rice v. King,
III. DID IPC ASSUME A DUTY TO PRESERVE THE PARTS? According to the rule stated in Koplin, supra, IPC assumed a duty to preserve the parts if it agreed or contracted to do so. There is no evidence of a contract in this case, so the sole question for the Court’s consideration is whether IPC agreed to preserve the *1058 parts for Wilson. The Court finds that IPC did not enter into such an agreement.
The Court notes that Wilson filed a motion for leave to depose Cecil Counts, a retired safety director for IPC, in order to determine whether IPC assumed a duty to preserve the parts. By way of response to the motion, IPC has submitted an affidavit of Mr. Counts in which he states “I do know that there was never an agreement with anyone to retain parts of the equipment on which Mr. Wilson was working when he was injured.” IPC previously submitted an affidavit of James M. Pratt, the attorney who represented IPC in the workers’ compensation proceedings. Mr. Pratt states that neither he nor any employee of IPC agreed to preserve the parts of the machinery for Wilson.
The record that has been developed in this case clearly shows that there was no agreement to preserve the parts, and in the absence of such an agreement, IPC was under no duty to preserve them.
See
Annotation,
Spoliation of Evidence,
Wilson additionally argues that the employer/employee relationship which existed between IPC and himself was sufficient to impose a duty on IPC to preserve the parts. In
Koplin, supra,
the Kansas Supreme Court was presented with a situation in which an employer did not preserve certain evidence, and the court did not consider the employer/employee relationship to be one which would impose a duty to preserve the evidence. The Alabama Supreme Court reached a similar result in
Parker v. Thyssen Mining Construction, Inc.,
CONCLUSION
Having concluded that IPC had no duty, either statutory, common law, or assumed, to preserve the parts, the Court finds that IPC’s motion for summary judgment must be granted because Wilson has suffered no cognizable injury. The Court will also deny the motion for leave to depose Mr. Counts as moot.
ORDER
IT IS THEREFORE CONSIDERED, ORDERED, AND ADJUDGED that the motion for summary judgment filed by defendant International Paper Company be and the same is hereby granted.
IT IS FURTHER ORDERED that plaintiffs’ complaint, insofar as it contains allegations pertaining to International Paper Company, be and the same is hereby dismissed.
IT IS FURTHER ORDERED that plaintiffs’ motion for leave to depose Mr. Cecil Counts be and the same is hereby denied as moot.