Watch Out for Civil Tort Liability for Spoliation of
Peter A. Lynch
Lynch, Peter A. Fire and Arson Investigator.
Vol. 47, No. 4 (June 1997). p 17-19.
A fire scene poses obvious dangers to an investigator's physical safety.
Often overlooked by fire scene participants is the potential for tort liability
for negligent destruction of physical evidence while at a fire scene. Destroying
or failing to save evidence which may be needed in future civil litigation
is spoliation of evidence. This article examines the tort of spoliation
of evidence and discusses ways to avoid being held personally responsible
for accidentally losing or destroying physical evidence. 1
SMITH v. SUPERIOR COURT
The lead case in the United States that recognized a person could be
civilly liable for spoliation of evidence was Smith v. Superior Court (1984)
151 Cal.App.3d491 (hereafter Smith). Smith was blinded when a wheel came
off a passing van and smashed the windshield of her car. A Ford dealer had
installed customized tires on the van. After the accident, the van was towed
to that Ford dealer. According to Smith, the dealer promised to save the
parts of the van so Smith's experts could evaluate them. Unfortunately,
the parts were lost. According to Smith's experts, because the parts were
lost they could not establish why the tire flew off the van injuring Smith.
The trial court dismissed Smith's civil suit against the Ford dealer
for spoliation of evidence. The Court of Appeal disagreed holding Smith
stated a valid claim for intentional spoliation of evidence because the
loss of the parts severely hindered her chance of recovering personal injury
damages. Other jurisdictions have followed the Smith court's lead and permit
a party to sue for evidence being lost or destroyed.2
In California, the recognized elements of negligent spoliation of evidence
Plaintiff possessed a claim for damages [against] __________________(defendant,
third party) ;
(2) Defendant knew or reasonably should have known of this claim for
damages [by] ________________ (itself, third party) ;
(3) Defendant knew or reasonably should have known of the existence of
________________ (writing, record, physical object, etc.) and knew or reasonably
should have known that it might constitute evidence in potential litigation
(4) Defendant knew or reasonably should have known that if [he] [she]
[it] did not act with reasonable care to preserve the __________________
(writing, record, physical object, etc.) the potential evidence could be
destroyed, damaged, lost or concealed;
(5) Defendant failed to act with reasonable care;
(6) Defendant's failure to act with reasonable care caused the destruction,
damage to, loss or concealment of such evidence;
(7) As a result, plaintiff sustained damage, namely plaintiff's opportunity
to prove its claim was interfered with substantially.3
Many may wonder how this tort applies to participants at a fire scene.
At every fire scene there are many parties present to include the police,
firefighters, private fire investigators, homeowners-business owners, potential
defendants, potential third party plaintiffs, insurance adjusters, contractors,
restoration companies, etc. Some of those individuals may be protected by
limited governmental immunity4
but only while in the course and scope of their employment.5
Saving lives and protecting property are stated goals of the fire service.
Meeting those goals mandate the fire to be extinguished which necessarily
requires physical evidence at the scene to be altered or destroyed during
the extinguishment and overhaul operations. This article covers people who
are at the fire scene after extinguishment and overhaul is complete. That
includes the fire service employee charged with investigating the cause
and origin of the fire.
As noted previously, normally the public investigator is immune from
civil suits. However, exceptions may exist especially when that investigator
is informed of a pending civil action. Failure to properly handle evidence
which is negligently destroyed later after notice of a potential civil action
may subject that investigator to civil liability.
An example of how that liability could arise follows. In Jablonski v.
Royal Globe (1988) 204 Cal.App.3d 379, an injured truck driver and his wife
sued his insurer for intentional spoliation of evidence. They claimed the
insurer fraudulently misrepresented there was no policy of insurance that
covered the driver's claim. That misrepresentation was made so the insurer
would not have to pay the claim. The court held the claim fell outside the
general immunity from civil suits normally given to a worker's compensation
insurer. The claim was allowed because the insurer's conduct was outrageously
The appellate court ruled that intentional spoliation of evidence is an
intentional tort which forfeits any immunity granted against civil suits.
The court held the driver had stated a viable cause of action for spoliation
of evidence. The Jablonski case was recently amplified in Maria G. Gomez
v. James Acquistapace (1996) 50 Cal.App.4th 740.
In Gomez, Jose Luis Gomez choked to death at work when his clothing became
tangled in a powered post hole digger. A few days later, his employer destroyed
the post hole digger. Jose's widow sued for negligent and intentional spoliation
of evidence, alleging that destruction of the post hole digger prevented
her from recovering damages in a third party action against the manufacturer.
The trial court granted the employer's motion for summary judgment finding
no spoliation of evidence and holding California's worker's compensation
scheme barred the action against the employer. The Court of Appeals reversed.
The employer admitted it intentionally ordered the post hole digger destroyed.
However, the employer argued that the destruction was to protect other employees
from getting injured while using that piece of equipment. The court held
the widow's intentional spoliation of evidence cause of action was adequate
because it alleged the defendant destroyed an object which might constitute
evidence in a lawsuit with the purpose of harming the lawsuit or when harm
to the lawsuit is substantially certain to follow. The court also rejected
the exclusive remedy rule of the worker's compensation scheme. The court
held destruction of the evidence fell outside of the exclusive remedy because
the damage was not an injury within the meaning of the Worker Compensation
statutes. Moreover, the employee's widow's cause of action for negligent
spoliation accrued at the earliest when the post hole digger was destroyed.
At that time, the former employee was no longer employed and no longer subject
to provisions of the Labor Code.
The court then noted a strong argument in favor of the tort of spoliation
of evidence. The court stated the widow argued that spoliation is not a
normal incident of employment because the average worker has no reason to
expect his employer will destroy equipment or other evidence of the cause
of an industrial injury. California has a fundamental public policy to protect
the integrity of civil litigation by encouraging the preservation and disclosure
of evidence. While occasional injuries from defective work equipment may
be an expected incident of employment, workers should not be expected to
anticipate the almost immediate destruction of such equipment after an industrial
accident. The court would not assume that most employers routinely destroy
equipment or other relevant objects after industrial accidents. It suggested
employers could protect themselves against liability for spoliation by preserving
such objects, at least until they determine whether the affected employee
intends to pursue a third party action. Consequently, the Court of Appeals
reversed the summary judgment earlier granted to the employer.
Now assume a firefighter or investigator is accused of intentionally
spoliating evidence. This happened after the fire was suppressed and the
cause and origin investigation is complete. Assume further the firefighter
or investigator tells the owner, private cause and origin investigator,
or insurance adjuster he/she will preserve a particular piece of evidence.
The investigator then fails to save the evidence or it gets destroyed while
in his care, custody or control. Is the investigator potentially civilly
liable for spoliation of evidence even though the general immunity normally
applies to their actions?
I believe the claim of governmental immunity may not protect the investigator
if the conduct happened after their normal duties were concluded. That result
follows because their acts may be outside the scope of their employment.
That result was discussed in Clemente v. State of California (1985) 40 Cal.3d
202. In Clemente, a pedestrian was hit by a motorcyclist. A highway patrol
officer arrived on the scene. According to the plaintiff, he was crawling
in the crosswalk trying to reach safety. The motorcyclist was pushing his
motorcycle. The officer instructed the motorcyclist to park his motorcycle
off the roadway.
Witnesses were then questioned. An unknown driver of a van was interviewed
who blamed the motorcyclist for the accident. The officer did not get the
van driver's name, nor did he identify the motorcyclist. An ambulance was
called and the officer left the scene. Unfortunately, the motorcyclist fled
the scene and was never found. The plaintiff claimed because of his injuries
he could not verify the identity of the motorcyclist. He sued the officer
for negligence for failing to identify the motorcyclist. The trial court
dismissed the suit finding the officer immune from liability. The Court
of Appeals reversed allowing the case to proceed because "the completely
disabled and apparently incompetent plaintiff was likewise completely dependent
on the officer . . . following the traffic accident."7 The California Supreme
Court affirmed applying law of the case based on the Court of Appeal opinion.
Clemente, supra, 40 Cal.3d at 213. The court distinguished Williams v. State
of California (1983) 34 Cal.3d 18 noting it did not establish the officer
in Clemente did not have a duty to exercise care in his investigation to
protect the plaintiff. Arguably, the same logic could apply to firefighters
or investigators under limited circumstances that may bar use of the standard
governmental immunity. Hence, a government investigator may be liable for
spoliation of evidence when he acts outside the scope of his employment.
Care should be exercised once a governmental investigator has concluded
their investigation into the cause and origin of a fire. This is especially
true in a non-arson fire. Never take physical evidence from a fire scene
for training purposes if a potential civil case may arise. Because insurance
exists on most structures involved in a fire, it is foreseeable that civil
litigation will follow any significant fire. The taking of evidence for
training purposes without an adequate chain of custody or preservation against
damage likely is outside the scope of the investigator's assignment related
to determining the cause and origin of the fire. If that evidence is lost
or altered, serious consequences may follow for that investigator.8
Even though government investigators may be civilly immune from civil
suits, they may become enmeshed in civil actions by way of deposition testimony
or trial testimony because of their activities at a fire scene. I have not
met a government investigator who did not complain of the time away from
their firefighting duties while acting as a witness in a civil case. Imagine
the pleasure of being grilled by a room full of attorneys about negligently
losing a key piece of physical evidence. Set aside the concern for one's
own personal financial well being because of the normal protection provided
by civil immunity and consider how your supervisor and colleagues will evaluate
your investigative skills based on that incident.
SUGGESTIONS TO AVOID SPOLIATION OF EVIDENCE CLAIMS
As a public investigator, make sure you conduct your investigation within
the course and scope of your employment. Physical evidence which is necessary
for an arson prosecution must be properly photographed, tagged and protected
under an appropriate chain of custody. Do not destroy or damage this retained
evidence without checking with your governmental attorney, supervisor or
advising interested third parties. Following those suggestions, not only
avoids a spoliation of evidence claim but strengthens the arson prosecution.
Everyone is aware of the O.J. Simpson defense attack on the physical evidence
at his criminal trial. Do not assist the criminal defense attorney by mishandling
physical evidence. If you do mishandle physical evidence you threaten the
success of the arson prosecution and potentially open the door for civil
spoliation of evidence claims against you and the agency you work for.
If you are a private cause and origin investigator or other forensic
expert, realize you do not have governmental immunity for losing or destroying
evidence at a fire scene. Therefore, you need to place known defendants
on notice of the loss and your intention to remove physical evidence from
a fire scene. You should give notice to potential defendants whose identity
can be determined. If it is not possible to put defendants on notice because
their identity is not known, take care in photographing, diagramming, and
potentially videotaping the scene may be necessary to avoid a spoliation
of evidence claim. A log of each photograph of the site is helpful with
the date, time and direction taken and identity of the photographer.
Seek to find exemplar evidence not damaged at the fire scene for comparison
purposes. Additionally, other objects in the area of origin that are fire
damaged but not the cause of the fire may be considered for preservation.
Preserving those other objects and having them available for a jury to view
may allow them to rule them out as the cause of the fire. This other evidence
can corroborate your opinion as to what actually caused the fire.
If you determine a public investigator has evidence, send the investigator
a letter asking them to preserve and protect the evidence. Ask to be notified
of any potential destructive testing or request input into the tests that
will be conducted. Seek to be present at the destructive testing.
If you retain physical evidence, alert known potential parties in writing.
Advise them non-destructive views can be scheduled. Let them know when and
what destructive tests you are considering. Permit them to view those tests
after receiving their input into the testing procedures. Sending those letters
should prevent an opposing party from claiming you destroyed evidence before
they had a chance to review and inspect it.
Pundits may complain that the tort of spoliation of evidence has detrimentally
impacted a fire investigators' ability to determine the cause and origin
of a fire. The tort of spoliation of evidence was developed to protect innocent
injured parties who lost their right to recover damages because key physical
evidence was lost or destroyed through no fault of their own. Equity and
fundamental fairness dictate that an innocent party not be deprived of compensation
for losses incurred when a negligent party destroys evidence. Courts have
determined the party that loses or destroys evidence should compensate an
innocent party who cannot prove their case because that evidence was destroyed.
Our system of justice relies on the integrity of evidence in the search
for the truth about what caused a fire. Altering or destroying key physical
evidence detrimentally affects the search for truth because it reduces the
probability that our court system will reach accurate results. We cannot
allow biased parties to decide which evidence will be preserved for a jury
to evaluate. If such a result happens, a trial will not reconstruct the
actual events leading up to a fire but will instead serve as a recreation
of hypothetical facts based on a biased party's selective disclosure of
That is why the tort of spoliation of evidence was developed, to deter and
punish individuals who obstruct the search for truth as to the origin and
cause of a fire. Public investigators are sworn to uphold federal, state
and local laws. Their duties require them to act with moral integrity and
honesty in determining the cause and origin of a fire. That includes meeting
the highest standards for properly handling physical evidence to preserve
the integrity of our judicial system.10
As William Pitt noted, "where the law ends, tyranny begins."
If a fire scene participant knowingly destroys evidence he can be subject
to criminal prosecution as well as liable civilly for intentionally destroying
evidence. Harsher penalties apply when physical evidence is intentionally
destroyed. See California Penal Code §135. Willard v. Caterpillar,
Inc. (1995) 40 Cal.App.4th 892, 907. (Penalties for destroying evidence
include criminal penalties, adverse evidentiary inferences, sanctions and
2 A brief non-inclusive listing of other jurisdictions discussing
the issue follows: Bondu v. Gurvich (Fla. Dist. Ct. App. 1984) 473 So.2d
1307; Hazen v. Municipality of Anchorage (Alaska 1986) 718 P.2d 456; La
Raia v. Superior Court (1986) 150 Ariz.118, 722 P.2d 286; Gardner v. Blackston
(1988) 185 Ga.App. 754, 365 S.E.2d 545; Murray v. Farmers Ins. Co. (1990)
118 Idaho 224, 796 P.2d 101; Rodgers v. St. Mary's Hosp. of Decatur (1992)
149 Ill.2d 302, 597 N.E.2d 616, 620; Foster v. Lawrence Memorial Hosp. (D.
Kan. 1992) 809 F.Supp. 831, 838. Ohio and New Jersey recognize a tort of
"fraudulent destruction of evidence." See Smith v. Howard Johnson
Co., Inc. (1993) 67 Ohio St.3d 28; Hirsch v. General Motors Corp. (1993)
266 N.J.Super. 22, 628 A.2d 1108; Rodriguez v. Webb (N.H. 1996) 680 A.2d
3 See BAJI No. 7.96. BAJI No. 7.97 defines the elements of
intentional spoliation of evidence.
See Cal. Gov. Code §820.2 (discretionary immunity).
Later this article discusses potential liability against individuals normally
granted immunity. Such liability arises for acts beyond the scope of their
6 See Cal. Labor Code §3200, et seq.
Clemente, supra, 101 Cal.App.3d at 380, affirmed as law of the case by Clemente
v. State of California, 40 Cal.3d 202 (disapproving the Court of Appeal
opinion to the extent inconsistent with Williams v. California (1983) 34
Cal.3d 18, 28 fn. 19).
I recently directed a large commercial structure fire investigation for
a major insurer. A public official seized a breaker panel for training purposes
without consent of the owner or insurer. That public official did not want
to return that evidence claiming it was needed for training. After advising
the public official of his potential exposure for spoliation of evidence,
it was agreed that my forensic consultant would take custody of that evidence
while the civil investigation continued. If you do not need the evidence
for a criminal prosecution, do not take it!
Rozier v. Ford Motor Co. (5th Cir. 1978) 573 F.2d 1332, 1346.
one court noted about attorney misconduct which is equally applicable to
"Today, fifty-six years later, the drafters of these rules certainly
would be disappointed to see how far from that ideal we remain. The discovery
rules in particular were intended to promote the search for truth that is
the heart of our judicial system. However, the success with which the rules
are applied toward this search for truth greatly depends on the professionalism
and integrity of the attorneys involved.
Therefore, it is appalling that Attorneys, like Defense Counsel in this
case, routinely twist discovery rules into some of 'the most powerful weapons
in the arsenal of those who abuse the adversary system for the sole benefit
of their clients.'
All attorneys, as 'officers of the court,' owe duties of complete candor
and primary loyalty to the court before which they practice. An attorney's
duty to a client can never outweigh his or her responsibility to see that
our system of justice functions smoothly. This concept is as old as common
law jurisprudence itself. In England, the first licensed practitioners were
called 'Servants at law of our Lord, the King' and were absolutely forbidden
to 'deceive or beguile the Court.' In the United States, the first Code
of Ethics, in 1887, included one canon providing that 'the attorney's office
does not destroy . . . accountability to the Creator,' and another entitled
'Client is not the keeper of the Attorney's Conscience.'
Unfortunately, the American Bar Association's current model Rules of
Professional Conduct underscore the duty to advocate zealously while neglecting
the corresponding duty to advocate within the bounds of law. As a result,
too many attorneys have forgotten the exhortations of these century-old
canons. Too many attorneys, like defense counsel in this case, have allowed
the objectives of the client to override their ancient duties as officers
of the court. In short, they have sold out to the client.
We must return to the original principle, that as officers of the court,
Attorneys are servants of the law rather than servants of the highest bidder.
We must rediscover the old values of the profession. The integrity of the
justice system depends on it."
Malautea v. Suzuki Motor Co. Ltd., 987 F.2d 1536, 1546-47 (11th Cir.),
cert. denied, 114 S.Ct. 181 (1993) (citations omitted) (emphasis added).
About the Author
Mr. Lynch is a senior member of the national law firm of Cozenand O'Connor,
P.C. in its San Diego regional office.Cozenand O'Connor is one of the largest
law firms in the United States involved in fire litigation. A major emphasis
of Mr. Lynch's practice is the representation of individuals, companies
and insurers that arise from fire losses to include personal injury, subrogation,
coverage and defense matters. Mr. Lynch has written and published over twenty
articles and lectured extensively on fire litigation topics. He has been
retained as an expert witness. Mr. Lynch recently completed a three-week
trial with other plaintiffs that resulted in settlement on the day of closing
argument estimated at $8 million to $10 million on a fire claim. He is the
legal advisor to the San Diego County-Wide Fire and Arson Task Force.
Reprinted with permission.