CPLR 3126 provides for sanctions against litigants who loose or destroy evidence during litigation. But what should happen if the evidence is lost or destroyed by a third-party – someone not involved in the litigation? A few jurisdictions have recognized an independent tort of third-party negligent spoliation of evidence to address the wrong.
However, yesterday the Court of Appeals in Ortega v City of New York, 2007 NY Slip Op 07741 held that New York will not recognize such a third-party negligent spoliation of evidence cause of action. The facts were as follows.
The plaintiff Castalia Ortega purchased a minivan from a private owner. She then brought the vehicle to a service station for an inspection and tune-up. The day after the vehicle was serviced, while Ortega and plaintiff Manuel Peralta were driving in the vehicle, the minivan burst into flames, causing Ortega and Peralta to suffer severe burns. New York City police officers investigating the accident had Ridge Transport Systems, a towing contractor, remove the vehicle from the roadway. Ridge towed the van to its facility where it remained until November 7, 2003 when it was transported to the New York City Police Department’s Auto Pound. Peralta’s attorney attempted to inspect the vehicle while it was in Ridge’s possession but was refused access because Peralta did not own the vehicle and could not produce a title document or bill of sale. Ridge explained that the van would be destroyed if not claimed by its rightful owner.
On October 31, 2003, Peralta commenced a special proceeding against Ridge and the New York City Police Department to preclude destruction of the vehicle until it could be inspected. Neither Ridge nor the Police Department opposed the application. Supreme Court issued an order on November 18, 2003 granting Peralta a period of 60 days to inspect the vehicle and precluding its alteration or destruction. The Legal Bureau of the Police Department promptly forwarded a written request, along with a copy of the court order, to the property clerk at its Auto Pound directing preservation of the vehicle pending Peralta’s inspection.
For unknown reasons, the memo and order were either not received by the property clerk or were not properly acted upon. Instead of preserving the minivan as directed by Supreme Court, the Pound followed its ordinary procedures for the disposition of unclaimed vehicles and tried to contact the owner of the vehicle and warn that if it was not contacted within 15 days, the vehicle would be deemed abandoned under Vehicle & Traffic Law § 1224 and would be destroyed. Because Ortega did not contact the Pound within the designated time period, the vehicle was destroyed on December 30, 2003. The Legal Bureau of the Police Department — which had attempted to assist Peralta’s attorney in his efforts to enforce the preservation order — did not learn of the vehicle’s destruction until February 2004, at which point it notified Peralta and the court of the Pound’s disposition of the vehicle.
Ortega and Peralta did not pursue a personal injury action against the manufacturer of the vehicle, the previous owner or the service station that had inspected the van. Instead, the plaintiffs sued the City of New York seeking compensation for the personal injuries they sustained as a result of the automotive fire. Plaintiffs asserted that the City should be held liable for all damages stemming from the fire because, by destroying the vehicle, the City had breached its duty to preserve evidence, thereby committing the tort of negligent spoliation of evidence.
In rejecting the notion that such a cause of action existed, the Court of Appeals first noted that there was no indication that the City acted with malice or an intent to prevent the plaintiffs from obtaining recovery for their burn injuries, nor was the City’s destruction of the car a proximate cause of those injuries. It then noted that the City’s violation of the preservation order did interfere with the plaintiffs’ interest. However, it concluded that to allow the cause of action to proceed against the City would just be too speculative to meet “traditional proximate cause and actual damages standards at the foundation of our common-law tort jurisprudence.”
The Court stated that even if the vehicle had not been destroyed and was inspected it could be possible that (1) the fire caused so much damage to the van that an inspection would fail to disclose a conclusive cause, (2) an inspection could result in conflicting expert opinions with differing views on causation, rendering plaintiffs’ success in a lawsuit dependent on which party’s expert the jury found most credible, or (3) an inspection of the vehicle might not have disclosed any maintenance issues, manufacturing deficiencies or design defects, thereby failing to supply a basis to hold anyone liable. With these possibilities, there would be no meaningful way for the jury to reliably resolve whether the destruction of the vehicle was the cause of the plaintiffs’ failure to obtain damages for their bun injuries from the original tortfeasors.
Similarly, there would also be too much speculation with respect to how to assess damages against the City. Assuming that the plaintiffs would be able to obtain a judgment from the underlying tortfeasors there would be no reasonable means for the jury to determine how liability might have been apportioned among the tortfeasors in the original litigation.
The Court also noted that the plaintiffs were not without any remedy against the City as it could have pursued civil contempt proceedings against the City for violating the Court order of preservation [the plaintiffs did bring such proceedings but did not pursue the claim before the Court of Appeals].
Personal Commentary: I find it very refreshing when courts refuse to expand notions of liability. For too long the courts have seemed to want to hold anyone responsible for any injuries regardless of the circumstances. But as the Court wisely recognized in its opinion: “While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Not every deplorable act is redressable in damages” (citations omitted). If only the courts could keep this idea in mind more frequently.