This week's Legal Currents column, which is published in The Daily Record, is entitled "The lawsuit that shoulda, coulda been" The article is set forth in full below, and a pdf of the article can be found here.
My prior articles can be accessed here.
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The lawsuit that shoulda, coulda been
Nearly two weeks ago, in Ortega v. City
of New York, 2007 N.Y. Slip Op. 07741, the New York
State Court of Appeals considered the unresolved
issue of whether New York State recognizes the tort of third party
negligent spoliation of evidence.
At issue in Ortega was whether a passenger who was
severely injured as a result of a vehicular fire could maintain
a spoliation claim against the City of New York for failure to
prevent the destruction of the damaged vehicle.
The city was not involved in the original incident, but the
plaintiff alleged the city nevertheless was liable for the full
amount of damages she would have recovered in a civil
action against the underlying tortfeasor because an agent of
the city, for unknown reasons, destroyed the vehicle in violation
of a court order directing its preservation.
In reaching its determination, the court weighed judicial
and social policy concerns, including the public policy issue
of the potential and significant liability that claims for third party
spoliation could impose on municipalities.
The court also examined traditional remedies available to
spoliation victims in New York, such as discovery sanctions
and civil contempt sanctions. The plaintiff in Ortega asserted
such sanctions were insufficient since the negligent destruction
of the vehicle posed fatal obstacles to determining the
fire’s cause and prosecuting claims against the likely tortfeasors.
After careful consideration of the competing interests, the
court concluded existing New York remedies
are sufficient, and declined to follow the minority
of jurisdictions that permit tort of thirdparty
negligent spoliation: “In New York, while
the desire to provide an avenue to redress
wrongs is certainly an important consideration
underlying our tort jurisprudence, the recognition
that there has been an interference with an
interest worthy of protection has been the
beginning, not the end, of our analysis. ‘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.’ … As a general rule,
New York courts have been reluctant to
embrace claims that rely on hypothetical theories or speculative
assumptions about the nature of the harm incurred or
the extent of plaintiff’s damages. … For all of these reasons,
we join the majority of jurisdictions to consider the issue …
and decline to recognize spoliation of evidence as an independent
tort claim.” (Citations omitted.)
In other words, an innocent, injured person is out of luck
if a third party negligently performs his or her job.
Arguably, it is of little consolation to the potential plaintiff
that funds may be recovered from a negligent third party to
pay for expert expenses and additional investigation as to
whether a claim is feasible.
Furthermore, it is unlikely any plaintiff’s attorney would
be willing to expend the time and resources needed to
investigate a claim where the end result of the fishing expedition
doubtlessly would be an expert opining there is no
way to determine whether negligence caused the accident in
question, where the object alleged to have caused injury
cannot be examined.
It is, most assuredly, an unfortunate decision from the
plaintiff’s perspective.
That being stated, given the speculative and hypothetical
nature of the imbedded claims inherent in a third-party spoliation claim — in which the plaintiff alleges that, if a jury
was convened in the matter, it might reach a different conclusion
if destroyed evidence was preserved — it is difficult
to imagine another result.
Central to negligence claims are allegations of shoulda,
coulda, woulda. But, assertions of shoulda, coulda, woulda,
once removed from the negligence claim itself, lead to hypothetical
findings too equivocal to prove.
While this result may seem tinged with injustice it is, lamentably,
the only logical conclusion.