Rizzuto v. Davidson Ladders, Inc.

Page 1165

905 A.2d 1165

280 Conn. 225

Leandro RIZZUTO v. DAVIDSON LADDERS, INC., et al.

No. 17310.

Supreme Court of Connecticut.

Argued December 2, 2005.

Decided October 3, 2006.

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Michael L. Oh, with whom, on the brief, were Michael A. Stratton, Joel T. Faxon and Michael R. Denison, New Haven, for the appellant (plaintiff).

John B. Farley, with whom were Bruce H. Raymond and, on the brief, N. Kane Bennett, Hartford, for the appellee (defendant Home Depot USA, Inc.).

SULLIVAN, C.J., and BORDEN, NORCOTT, PALMER and VERTEFEUILLE, Js.^*

BORDEN, J.

The dispositive issue in this appeal¹ is whether this state should recognize intentional spoliation of evidence as a cognizable independent tort. We conclude that, under the circumstances alleged in the present case, we should do so.

The record reveals the following relevant facts and procedural history. On December 16, 1996, the plaintiff, Leandro Rizzuto, climbed a ladder manufactured by the named defendant, Davidson Ladders, Inc. (Davidson),² while shopping at a Home Depot store in Norwalk. The ladder collapsed suddenly and the plaintiff fell to the floor, incurring serious physical injuries. In August, 1997, the plaintiff filed a product liability action against Davidson and the defendant, Home Depot USA, Inc. (Home Depot), alleging, inter alia, that the ladder had been manufactured and designed improperly, and had been sold without proper warnings in violation of General Statutes § 52-572m et seq. Thereafter, the plaintiff asked the defendants repeatedly to preserve the ladder and to afford him an opportunity to examine the ladder. In 1998, the defendants' expert examined the ladder and concluded that it was not defective. The defendants thereafter destroyed the ladder, despite the fact that the plaintiff had never had an opportunity to inspect it.

On May 8, 2001, the plaintiff amended his complaint to add a claim for intentional spoliation of evidence. Specifically, the plaintiff alleged that: (1) "[b]y destroying and/or not preserving [the] ladder, the defendants ... intentionally spoliated evidence critical to [the plaintiff's] pending products liability action"; (2) "[t]he plaintiff's case has been damaged to the point where no expert can conclusively establish the mechanism of the defect which caused the plaintiff's injuries"; and (3) "as a result of the spoliation, the plaintiff may not be able to prove his case, and his interest in the [product liability cause] of action ... will forever be lost." The defendants moved to strike the plaintiff's intentional spoliation of evidence claim, contending that no such cause of action exists in this state. The trial court agreed with the defendants and, on March 19, 2003, granted the motion to strike.

Meanwhile, on November 25, 2002, the plaintiff requested permission to file a second amended complaint alleging that Home Depot's "pattern in practice [of] destroy[ing] critical pieces of evidence that are the subject of litigation against it" violates the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The defendants objected, claiming that the proposed amendment was untimely and unsupported by any factual allegations. On March 19, 2003, the trial court sustained the defendants' objection.

Thereafter, the plaintiff withdrew the product liability claims and moved for judgment in favor of the defendants on the claim of intentional spoliation of evidence. The trial court granted the plaintiff's motion and, on June 2, 2003, rendered judgment in favor of the defendants. This appeal followed.

The plaintiff claims that the trial court improperly granted the defendants' motion to strike his intentional spoliation of evidence claim on the ground that spoliation of evidence is not a cognizable tort, and improperly sustained the defendants' objection to his request to file a second amended complaint. We agree with the plaintiff's first claim, but disagree with his second claim. Accordingly, we reverse in part and affirm in part the judgment of the trial court.

I

The plaintiff first claims that the trial court improperly granted the defendants' motion to strike his intentional spoliation of evidence claim on the ground that no such cause of action exists. Home Depot responds that we need not determine whether this state recognizes the tort of intentional spoliation of evidence because the plaintiff's complaint fails to plead all of the essential elements of the tort. Alternatively, Home Depot maintains that this state does not recognize intentional spoliation of evidence as an independent cause of action. We agree with the plaintiff.

"The standard of review in an appeal challenging a trial court's granting of a motion to strike is well established. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court's ruling is plenary.... We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency.... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006).

A

We first address Home Depot's claim that we need not determine whether this state recognizes the tort of intentional spoliation of evidence because, even if such a cause of action exists, the trial court properly struck the plaintiff's spoliation claim. Specifically, Home Depot contends that the destruction of the ladder did not hinder the plaintiff's ability to prevail on his product liability claims, and the plaintiff's voluntary withdrawal of his product liability claims precludes a spoliation claim as a matter of law. We reject these claims.

"Disruption of a party's case is a critical element of the intentional spoliation tort." M.M. Koesel & T.L. Turnbull, Spoliation of Evidence: Sanctions and Remedies for Destruction of Evidence in Civil Litigation (2d Ed. 2006), p. 93; see, e.g., Coleman v. Eddy Potash, Inc., 120 N.M. 645, 649, 905 P.2d 185 (1995), overruled in part on other grounds by Delgado v. Phelps Dodge Chino, Inc., 131 N.M. 272, 34 P.3d 1148 (2001); Smith v. Howard Johnson Co., 67 Ohio St.3d 28, 29, 615 N.E.2d 1037 (1993); Hannah v. Heeter, 213 W.Va. 704, 717, 584 S.E.2d 560 (2003). Accordingly, most states that recognize the tort of intentional spoliation of evidence require a plaintiff to establish, inter alia, that "the spoliated evidence was vital to a party's ability to prevail in [a] pending or potential civil action...." Hannah v. Heeter, supra, at 717, 584 S.E.2d 560.

Home Depot does not dispute that the ladder was vital to the plaintiff's ability to prevail on his claim that the ladder was manufactured defectively. Rather, Home Depot contends that the ladder was not vital to the plaintiff's claims that the ladder was designed defectively or sold without adequate warnings because these claims, Home Depot maintains, could have been proven through the use of exemplars. In support of this argument, Home Depot relies on Beers v. Bayliner Marine Corp., 236 Conn. 769, 778, 675 A.2d 829 (1996), wherein this court concluded that an "[adverse] inference may not be drawn with respect to a claim based upon design defect when the destruction [of evidence] would not hinder the defense."³ We reject this claim because whether the destruction of the ladder would have hindered the plaintiff's ability to prevail on his design defect or inadequate warnings claims is a factual question that cannot be resolved on a motion to strike. For example, the record in the present case does not reveal whether the parties knew the model of the collapsed ladder, and, if so, whether other exemplars of that model are available, and, if other exemplars are available, whether their condition is substantially similar to the condition of the spoliated ladder. It is sufficient, at this stage of the proceedings, that the plaintiff's complaint alleges that the spoliated ladder was "critical evidence" in the proof of his product liability claims. Accordingly, we conclude that the plaintiff's complaint sufficiently states a claim for intentional spoliation of evidence, assuming that this state recognizes such a cause of action.

Home Depot next claims that the trial court properly struck the plaintiff's intentional spoliation of evidence claim because the plaintiff voluntarily withdrew his product liability action. In support of this claim, Home Depot relies on Petrik v. Monarch Printing Corp., 150 Ill.App.3d 248, 249, 103 Ill.Dec. 774, 501 N.E.2d 1312 (1986), appeal denied, 114 Ill.2d 556, 108 Ill.Dec. 424, 508 N.E.2d 735 (1987), in which the plaintiff brought an action for retaliatory discharge against his former employer, Monarch Printing Corporation (Monarch). After the plaintiff lost his retaliatory discharge suit, he filed a claim against Monarch for intentional spoliation of evidence, alleging that Monarch's intentional destruction of evidence hindered his ability to prevail on his retaliatory discharge action. Id., at 249-51, 103 Ill.Dec. 774, 501 N.E.2d 1312. The trial court concluded that intentional spoliation of evidence was not a cognizable tort and dismissed the plaintiff's spoliation claim. Id., at 250-51, 103 Ill.Dec. 774, 501 N.E.2d 1312. On appeal, the Appellate Court of Illinois determined that it need not decide whether Illinois law would recognize a spoliation tort because the plaintiff had failed to establish "a nexus between the failure of his [underlying] suit and the destruction" of evidence. Id., at 262, 103 Ill.Dec. 774, 501 N.E.2d 1312. Specifically, the court noted in Petrik that the plaintiff essentially had abandoned his underlying retaliatory discharge action and, as...