The Times They Are a Changing
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Rizzuto case puts on notice defendants who destroy evidence.
By BRUCE STANGER and VANESSA HETRICK
On Oct. 3, 2006, the Connecticut Supreme Court held in Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225 that intentional spoliation of evidence is now a recognized tort in Connecticut. The court in Rizzuto established a rebuttable presumption in favor of the plaintiff that the defendant is liable for the damages if spoliation of evidence prevents a plaintiff from establishing a prima facie case. Times have changed.
The prior law of spoliation provided an adverse inference where evidence was destroyed. Beers v. Bayliner Marine Corp., 236 Conn. 769 (1996). However, the clever defendant could destroy one of a kind, critical evidence, and the adverse inference of Beers would not be sufficient to sustain the plaintiff ‘s prima facie case.
Our Supreme Court wisely indicated that “(b)ecause the Beers inference cannot be invoked by a victim of spoliation who has been deprived of the concrete evidence necessary to establish a prima facie case, we conclude that it provides an insufficient compensatory and deterrent effect…” Rizzuto at 239. It is essentially a tool to overcome summary judgment.
While plaintiffs’ lawyers may consider this ruling a victory, it may not be as favorable as it initially appears. In Rizzuto, a plaintiff fell from a ladder and sued to recover for his injuries on the grounds that the ladder was improperly designed or manufactured. The plaintiff wanted to inspect the ladder but never had the opportunity, because the defendant destroyed it. Since the ladder had been destroyed, the plaintiff was unable to establish a prima facie product liability case.
At trial, I would imagine the defense will show the safety and adequate warnings for the particular ladder or all of their ladders if no one can identify the model. Even under Rizzuto, the plaintiff will then have to prove by expert testimony a particular defect that caused the injury.Will the jury still expect the plaintiff to prove the defect? In most situations, the big opportunity appears to be rubbing the defendant’s face in the improper conduct associated with the destruction of evidence.
Purpose And Effect
What must the plaintiff show to survive the defendant’s motion for summary judgment? According to Rizzuto, simply that “a first party defendant destroys evidence intentionally with the purpose and effect of precluding a plaintiff from fulfilling his burden of production in a pending or impending case.” Rizzuto at 234-235.
It is not just the intentional destruction of evidence; it must be with intent to affect the plaintiff’s burden in a known claim. Is it enough that the defendant knows someone was hurt, or must the defendant know that the injured party is pursuing a claim? Is it enough that the defendant knows the injured party may pursue a claim or must the claim actually be filed?
The facts of the Rizzuto case were very clear; the ladder was destroyed after the defense had it tested, found safe, and after the plaintiff’s lawyer asked for an opportunity to test it. Yes, it was destroyed after the defendant tested it but before the plaintiff had an opportunity to test it. Those hands deserved to be slapped.
According to the Rizzuto court, the tort of spoliation of evidence has four elements in line with sister states that have adopted this tort. They are: “(1) the defendant’s knowledge of a pending or impending civil action involving the plaintiff; (2) the defendant’s destruction of evidence; (3) in bad faith, that is, with intent to deprive the plaintiff of his cause of action; (4) the plaintiff’s inability to establish a prima facie case without the spoliated evidence; and (5) damages.” Rizzuto at 244-245.
In its discussion about the element of intent, the court introduces the phrase “bad faith” and once again repeats the intent to deprive the plaintiff of his cause of action. Does the reference to “the plaintiff” mean that the defendants must know who the injured party is? What if the person or persons destroying the evidence simply do not want to get into trouble because they, against the rules of their employer, modified the product without knowledge of the injured party? Would the intent to protect themselves be sufficient if they did not care whether the injured party did or did not have a cause of action?
The court in Rizzuto is very clear that “the plaintiff must prove that the defendants’ intentional, bad faith destruction of evidence rendered the plaintiff unable to establish a prima facie case in the underlying case.” Rizzuto at 246. Should this be applied beyond prima facie cases to those affecting the ability of the plaintiff to meet its burden overall? Does this new cause of action defeat any defense that the plaintiff is limited in rebutting because of the intentional, bad faith conduct of the defendant?
This cause of action will—and should—be extended to any claim where the destruction of something will benefit the person who destroyed it. What of the person who destroys the only copy of a contract? What if the plaintiff is still able to prove a prima facie case, but because of the destruction of evidence is now limited in their ability to prove an element of damages: is the adverse inference of Beers enough? What of the insurance company who salvages what it can from a vehicle after a car accident and then destroys it while knowing there was a serious injury? The plaintiff looses much of the evidence to use in an accident reconstruction.
The prior law of inference provided that the plaintiff must show “he or she acted with due diligence with respect to the spoliated evidence.” Beers at 777-8. This will likely apply under Rizzuto as well.
Risk Of Windfall
The risk of a windfall to the plaintiff is decreased substantially because the plaintiff must show that the defendant intentionally spoliated the evidence and this spoliation precluded the plaintiff from establishing a prima facie case. The defendant also has the opportunity to rebut the presumption of liability. Rizzuto at 249.
As a tort, spoliation has the potential to give plaintiffs a new way to pursue their claim. For the court, recognizing intentional spoliation as an independent tort is simply a matter of trying to keep a level playing field, and assuring everyone his or her day in court. The Rizzuto court recognized the potential problems of applying the new tort; but reasoned that without it, there was not enough compensation for plaintiff—nor sufficient deterrence for the defendant—for destroying evidence.
Bruce Stanger is a principal in the West Hartford firm of StangerLaw LLC. Bruce can be reached at firstname.lastname@example.org or 860.561.0651. Vanessa Hetrick is a third year law student at Villanova University School of Law, a visiting student at University of Connecticut School of Law, and law clerk for StangerLaw LLC.