The New York Court of Appeals has recently rejected an attempt to expand the available remedies for spoliation of evidence. The court addressed whether a plaintiff can sue a third party responsible for the destruction of evidence critical to a plaintiff’s claim against a tortfeasor. Businesses operating in New York should review the decision in Ortega v. City of New York, 2007 WL 2988760 (N.Y. 2007), where the court joined the majority of states in refusing to recognize the tort of third-party negligent spoliation of evidence.
After having it inspected at a service station, Ortega bought a used 1987 Ford minivan from a private owner. Driving down Ocean Parkway in Brooklyn, Ortega smelled fumes and pulled over. The minivan burst into flames, causing Ortega and her passenger, Manuel Peralta, to suffer severe burns. The New York City police officers who investigated the accident contacted a towing contractor to remove the vehicle from the road. The minivan was eventually transported to the New York City Police Department’s College Point Auto Pound in Queens.
Peralta filed a special proceeding against the towing company and the police department seeking to preclude destruction of the minivan until it could be inspected by Peralta. The court issued an order granting Peralta 60 days in which to inspect the vehicle and forbidding alteration or destruction of the minivan until completion of the inspection. The preservation order was served on the towing company and the police department. The police department’s legal bureau promptly forwarded a written request, along with a copy of the court order, to the property clerk at the auto pound directing preservation of the vehicle. For unknown reasons, the memo and order were either not received by the property clerk or were not properly acted upon. Instead, the vehicle was placed in a salvage auction and then, when it did not sell, it was crushed for scrap metal.
Ortega and Peralta did not pursue personal injury claims against Ford (the manufacturer of the van), the previous owner of the van, or the service station that had inspected the van. Instead, in July 2004, they sued the City of New York seeking compensation for the personal injuries they sustained as a result of the fire. Ortega and Peralta asserted, inter alia, that the City should be held liable for all damages caused by the fire because, by destroying the minivan, the City had breached its duty to preserve evidence, thereby committing the tort of negligent spoliation of evidence. The City responded by contending that the plaintiffs had failed to state a cause of action upon which relief could be granted. After the trial court dismissed the claims, the Appellate Division concluded that the plaintiffs’ claims were not viable.
The Court of Appeals affirmed, holding that New York did not recognize a claim for third-party negligent spoliation of evidence. The court noted that under New York law, a party already has a number of available remedies when evidence is destroyed. New York courts have the discretion “to provide proportionate relief to the party deprived of the lost evidence, such as precluding proof favorable to the spoliator to restore balance to the litigation, requiring the spoliator to pay costs to the injured party associated with the development of replacement evidence, or employing an adverse inference instruction at the trial of the action.” In appropriate cases, a court may “impose the ultimate sanction” of dismissing the case or striking responsive pleadings.
But the Court of Appeals refused to recognize that the destruction of evidence should be the basis of a separate tort claim. While a number of other states, including California, New Jersey, and Illinois, have recognized such a cause of action, the Court of Appeals disagreed that such a claim was available in New York. The court acknowledged the importance of discouraging the destruction of evidence, stating that “destruction of evidence by parties with a duty of preservation simply cannot be condoned, especially when that duty is imposed by court order.” The court concluded, however, that existing remedies were adequate to deter spoliation and appropriately compensate its victims.
While the destruction of the minivan placed Ortega and Peralta in a situation where discovery sanctions would be inadequate to address the problem, the civil contempt statutory scheme was available to them. The City itself conceded that if the plaintiffs had pursued a contempt claim, they would, at the very least, have been entitled to monetary damages sufficient “to reimburse them for additional investigation, research or expert expenses incurred in attempting to prove the underlying negligence claim absent inspection of the vehicle.”
The court gave other reasons for refusing to recognize the viability of a separate tort action based on the spoliation. According to the court, such a claim would be too speculative. “In a third-party spoliation case, because the content of the lost evidence is unknown, there is no way of ascertaining to what extent the proof would have benefited either the plaintiff or defendant in the underlying lawsuit and it is therefore impossible to identify which party, if any, was actually harmed.” In addition, recognizing such a tort would create significant potential liability for municipalities, which often tow and warehouse vehicles involved in accidents. The court stated that “we are not
persuaded that it would be sound public policy to create a new tort that shifts liability from responsible tortfeasors to government entities that serve as repositories of evidence that may or may not be relevant in future civil cases.” The Ortega decision makes it clear that while spoliation of evidence may still give rise to severe sanctions, the potential liability of third parties responsible for spoliation will be limited to damages available under the civil contempt statutory scheme.
Full Opinion Text: http://www.nycourts.gov/ctapps/decisions/oct07/118opn07.pdf