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Watch Out for Civil Tort Liability for Spoliation of Evidence!

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


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 are:

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 involving plaintiff;

(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 reprehensible.6 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.


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 evidence.9 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."


1 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 tort liability.)

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 604.

3 See BAJI No. 7.96. BAJI No. 7.97 defines the elements of intentional spoliation of evidence.

4 See Cal. Gov. Code §820.2 (discretionary immunity).

5 Later this article discusses potential liability against individuals normally granted immunity. Such liability arises for acts beyond the scope of their employment.

6 See Cal. Labor Code §3200, et seq.

7 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).

8 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!

9 Rozier v. Ford Motor Co. (5th Cir. 1978) 573 F.2d 1332, 1346.

10As one court noted about attorney misconduct which is equally applicable to fire investigators:

"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.

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