Hannah v. Heeter

584 S.E.2d 560

213 W.Va. 704

Patricia HANNAH, Sabrina Brown, Pamela J. Nagle, Brenda Christian, and Darla Jeffrey, Plaintiffs, v. David P. HEETER, Individually and Heeter Construction, Inc., a West Virginia Corporation, Defendants, v. Patricia Hannah (Cazin), and Ermil Hannah, Third-Party Defendants.

No. 30962.

Supreme Court of Appeals of West Virginia.

Submitted March 25, 2003.

Decided June 30, 2003.

Lonnie C. Simmons, Esq., Lia M. DiTrapano, Esq., DiTrapano, Barrett & DiPiero, Charleston, for Plaintiffs.

James M. Cagle, Esq., Charleston, for Defendants.

MAYNARD, Justice.

We are called upon to answer certified questions from the Circuit Court of Logan County regarding the viability of independent torts for spoliation of evidence. In the exercise of our discretion, we reformulate the certified questions as follows:¹

1. Whether West Virginia recognizes spoliation of evidence as a stand-alone tort when the spoliation is the result of the negligence of a party to a civil action.

2. Whether West Virginia recognizes spoliation of evidence as a stand-alone tort when the spoliation is the result of the negligence of a third party, and the third party had a special duty to preserve the evidence.²

3. Whether West Virginia recognizes intentional spoliation of evidence as a stand-alone tort when done by either a party to a civil action or a third party.³

I. FACTS

Patricia Hannah is a plaintiff⁴ and David Heeter, the President of Heeter Construction Company, and Heeter Construction Company are defendants in a sexual harassment lawsuit. Specifically, Ms. Hannah alleges that in August 2000, she approached David Heeter at his office in Man, West Virginia, about a job as a flagger on a highway crew. She and Mr. Heeter apparently had several conversations about the job, the last of which was secretly recorded on audiotape by Ms. Hannah. According to Ms. Hannah, the audiotape of this conversation supports her claims that Mr. Heeter suggested that he would hire her in exchange for a sexual relationship.

During discovery, Ms. Hannah produced, at the request of the defendants, an audiotape of the conversation between her and Mr. Heeter. The defendants submitted this audiotape to an expert to determine whether it had been altered. The expert informed the defendants that the audiotape submitted was not the original, and that without the original he was unable to properly analyze the audiotape.

Consequently, the defendants filed a motion to compel production of the original audiotape. At a hearing on this motion, evidence was adduced that when Patricia Hannah moved from her ex-husband's residence, she left the original audiotape there. Ermil Hannah, Patricia Hannah's mother, testified that she lived directly across the street from Patricia Hannah's ex-husband, and that he had contacted her numerous times about the audiotape. Ermil Hannah further testified that her granddaughter, who is Patricia Hannah's daughter, brought her the audiotape, and Ermil Hannah destroyed it in order to avoid further contact with Patricia Hannah's ex-husband.

The defendants thereafter filed a counterclaim against Patricia and Ermil Hannah in which they alleged several causes of action, two of which are negligent and intentional spoliation of evidence. They then filed a motion for partial summary judgment as to liability on the spoliation claims. At a hearing on the motion, the defendants moved the circuit court to certify two questions to this Court concerning the viability of these claims.⁵ The circuit court denied the defendants' motion for partial summary judgment and certified the questions.

II. STANDARD OF REVIEW

"The appellate standard of review of questions of law answered and certified by a circuit court is de novo." Syllabus Point 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996).

III. DISCUSSION

A. Propriety of Certification

Initially, we must determine whether it is proper for this Court to answer the certified questions under the instant facts. Ms. Hannah asserts that the certified questions should not be accepted because they fail to meet the requirement set forth in Syllabus Point 5 of Bass v. Coltelli, 192 W.Va. 516, 453 S.E.2d 350 (1994),⁶ that the legal issues substantially control the case. Ms. Hannah further argues that the issue of the viability of a spoliation tort does not substantially control the sexual harassment suit because the audiotape was not destroyed by a party to the suit. In addition, the counterclaim for spoliation affects only one of the five plaintiffs involved in the harassment suit. Therefore, she concludes that this Court should decline to answer the certified questions.

According to W.Va.Code § 58-5-2 (1998), in part, "[a]ny question of law, including... questions arising upon the ... sufficiency of a motion for summary judgment where such motion is denied ... may ... be certified ... to the supreme court of appeals[.]" These certified questions come to us as the result of the circuit court's denial of the defendants' motion for partial summary judgment. According to Syllabus Point 5 of Bass v. Coltelli, supra:

West Virginia Code, 58-5-2 (1967),⁷ allows for certification of a question arising from a denial of a motion for summary judgment. However, such certification will not be accepted unless there is a sufficiently precise and undisputed factual record on which the legal issues can be determined. Moreover, such legal issues must substantially control the case. (Footnote added).

We believe that it is proper for this Court to answer the certified questions before us. While these questions do not substantially control the sexual harassment suit filed by the five plaintiffs below, they do substantially control the viability of Mr. Heeter's counterclaims for spoliation. Further, the undisputed facts show that evidence which is relevant to a civil action was destroyed. We conclude, therefore, that the certified questions meet the requirements articulated in Syllabus Point 5 of Bass.

B. General Principles

The questions presented concern the viability of torts which this Court previously has not recognized. In considering these issues, we are mindful that "[f]or every wrong there is supposed to be a remedy somewhere." Sanders v. Meredith, 78 W.Va. 564, 572, 89 S.E. 733, 736 (1916). This Court has opined that "[t]he concept of American justice ... pronounces that for every wrong there is a remedy. It is incompatible with this concept to deprive a wrongfully injured party of a remedy[.]" O'Neil v. City of Parkersburg, 160 W.Va. 694, 697, 237 S.E.2d 504, 506 (1977) (citation omitted). See also Gardner v. Buckeye Sav. & Loan Co., 108 W.Va. 673, 680, 152 S.E. 530, 533 (1930) ("It is the proud boast of all lovers of justice that for every wrong there is a remedy."). Accordingly, one of our considerations in answering the certified questions is whether a sufficient remedy already exists for the conduct at issue.

We are also mindful that recognizing tortious conduct as actionable serves additional purposes beyond providing a remedy to the person injured by the tortious conduct. While it is true that "[t]he object of tort law is to provide reasonable compensation for losses[,]" Roberts v. Stevens Clinic Hosp., Inc., 176 W.Va. 492, 504, 345 S.E.2d 791, 803 (1986), additional foundations of tort law are morality and deterrence. See Bart S. Wilhoit, Spoliation Of Evidence: The Viability Of Four Emerging Torts, 46 UCLA L.Rev. 631, 662 (1998) ("It is generally accepted that the three fundamentals of tort law are morality, compensation, and deterrence." (Footnote omitted)). Therefore, in answering the questions before us, we will also consider the level of condemnation and deterrence that may be required as a sufficient response to the conduct at issue. We now proceed to address the specific questions posed in light of these guidelines.

C. Nonviability of a Tort for Negligent Spoliation by a Party

We answer the first certified question in the negative, and hold that West Virginia does not recognize spoliation of evidence as a stand-alone tort when the spoliation is the result of the negligence of a party to a civil action.⁸ "It is a fundamental principle of law that a party who reasonably anticipates litigation has an affirmative duty to preserve relevant evidence." Tracy v. Cottrell, 206 W.Va. 363, 371, 524 S.E.2d 879, 887 (1999) (citation omitted). However, we believe that when the alleged spoliator is a party to the underlying litigation, sufficient remedies already exist to compensate the party injured by the negligent spoliation. In Tracy, we concluded that under appropriate circumstances, an adverse inference instruction may be given or sanctions levied where physical evidence was destroyed by a party to an action. In Syllabus Point 2 of Tracy, we held:

Before a trial court may give an adverse inference jury instruction or impose other sanctions against a party for spoliation of evidence, the following factors must be considered: (1) the party's degree of control, ownership, possession or authority over the destroyed evidence; (2) the amount of prejudice suffered by the opposing party as a result of the missing or destroyed evidence and whether such prejudice was substantial; (3) the reasonableness of anticipating that the evidence would be needed for litigation; and (4) if the party controlled, owned, possessed or had authority over the evidence, the party's degree of fault in causing the destruction of the evidence. The party requesting the adverse inference jury instruction based upon spoliation of evidence has the burden of proof on each element of the four-factor spoliation test. If, however, the trial court finds that the party charged with spoliation of evidence did not control, own, possess, or have authority over the destroyed evidence, the requisite analysis ends, and no adverse inference instruction may be given or other sanction imposed.

In addition to an...