Beers v. Bayliner Marine Corp.

• Decision Date: 07 May 1996
• Docket Number: No. 15244,15244
• Citation: 675 A.2d 829,236 Conn. 769
• Court: Connecticut Supreme Court
• Parties: Mark BEERS et al. v. BAYLINER MARINE CORPORATION et al.

Page 829

675 A.2d 829

236 Conn. 769

Mark BEERS et al. v. BAYLINER MARINE CORPORATION et al.

No. 15244.

Supreme Court of Connecticut.

Argued Feb. 14, 1996.

Decided May 7, 1996.

Susan King Shaw, New Haven, for the appellants (plaintiffs).

Alison L. Bonds, New Haven, with whom, on the brief, was George A. Dagon, Jr., Hartford, for the appellee (named defendant).

William F. Gallagher and Kurt D. Koehler, New Haven, filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.

Paul D. Williams and Edward F. McHugh, Hartford, filed a brief for the Connecticut Business and Industry Association as amicus curiae.

Before CALLAHAN, BERDON, NORCOTT, KATZ and PALMER, JJ.

BERDON, Associate Justice.

This case raises an issue of first impression for this court--that is, the effect of intentional spoliation of evidence in a products liability case. In August, 1990, the plaintiffs, Marks Beers (Beers) and John Hornyak (Hornyak), ¹ brought an action against the defendant Bayliner Marine Corporation, ² pursuant to the Connecticut Product Liability Act; General Statutes § 52-572m et seq.; for damages as a result of personal injuries they sustained while traveling in a motor boat. After the pleadings were closed, the trial court granted the defendant's motion for summary judgment, which was grounded on spoliation of evidence and rendered judgment thereon. The plaintiffs appealed from the judgment of the trial court and we now reverse the judgment.

The plaintiffs argue that the trial court incorrectly granted the defendant's motion for summary judgment against them, despite alleged factual issues surrounding the disposal of the evidence. ³ To address this claim we look to the pleadings, affidavits, any other relevant proof and review them "in the light most favorable to the nonmoving party." ⁴

The plaintiffs alleged the following in their complaint. On July 2, 1986, Beers had purchased from Napoli Marine Service, Inc., a nineteen foot "Capri" bowrider type of outboard motor boat (boat) designed, manufactured and distributed by the defendant. On August 30, 1987, Beers was operating the boat on Long Island Sound near the Connecticut shoreline. Hornyak was a passenger in the boat. While Beers was operating the boat, it went out of control and both plaintiffs were injured. The plaintiffs claim that their injuries were caused by the defective condition of the boat, and that the defendant is liable for their injuries under, inter alia, product liability theories of manufacturing defect, design defect, failure to warn of those defects and failure to test adequately the boat. ⁵

On November 8, 1994, the defendant moved for summary judgment, claiming that, although Beers' allegedly defective boat was inspected by an expert, ⁶ Beers had removed and disposed of the boat's motor before bringing this action in August of 1990. The defendant claimed that as a result of this spoliation of the evidence it was stripped of its ability to defend itself. In support of its motion, the defendant submitted a transcript of Beers' deposition, wherein Beers conceded that in 1990 or 1991 he had removed the motor from the boat and subsequently had given it away. ⁷ The defendant also submitted an affidavit from its expert, which stated that he had inspected the boat on September 10, 1992, at which time the original motor, shaft, emergency shutdown switch and kill switch had been removed or replaced, precluding his formation of an opinion as to whether those parts were defective. A second affidavit in support of its motion for summary judgment was also submitted by the defendant's claims adjuster, which stated that although the adjuster had attempted repeatedly to arrange for an inspection of the boat from July 21, 1988, to November 29, 1989, an inspection was never scheduled by the plaintiffs' attorney.

In opposition to the defendant's motion for summary judgment, the plaintiffs filed an affidavit by their attorney in which he stated that he had been contacted by the defendant's claims adjuster "on one or two occasions during 1988 and/or 1989, indicating that [the claims adjuster] wanted to take pictures of the boat which is the subject of this lawsuit." The plaintiffs' attorney added the following: "My response was that if he would give me a couple of dates, I would arrange to have the boat made available. He never contacted me with specific dates on which to view the boat or to take pictures of it. I never received any follow-up correspondence (or correspondence of any kind) from [the claims adjuster] ... relative to inspecting the boat. I never refused to cooperate in arranging for an inspection of said boat." The plaintiffs' attorney also stated in his affidavit that a subsequent request was made to inspect the boat in June of 1991, but the adjuster did not respond to his requests for specific dates, and that no further requests for inspection were made until the late summer of 1992, at which time the defendant's expert inspected the boat.

The trial court found that the defendant was entitled to judgment as a matter of law and rendered summary judgment against the plaintiffs. The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c).

The issue of spoliation of evidence has not previously come to this court in the context of a civil case. ⁸ The defendant argues that it is entitled to summary judgment because of Beers' intentional spoliation of evidence. We decline to adopt this blanket approach, ⁹ which is grounded on punishing the spoliator. ¹⁰ Rather, we adopt the rule of the majority of the jurisdictions that have addressed the issue in a civil context, which is that the trier of fact may draw an inference from the intentional spoliation of evidence that the destroyed evidence would have been unfavorable to the party that destroyed it. See, e.g., Wong v. Swier, 267 F.2d 749, 759 (9th Cir.1959) (inference arises against parties responsible for spoliation); Williamson v. Superior Court of Los Angeles County, 21 Cal.3d 829, 835 n. 2, 582 P.2d 126, 148 Cal.Rptr. 39 (1978) (in determining what inferences to draw from party's wilful suppression of evidence, code of evidence permits trier of fact to consider, among other things, party's failure to explain or to deny evidence against him or party's wilful suppression of evidence); Rodriguez v. Schutt, 896 P.2d 881, 884 (Colo. App.1994), cert. granted, (Colo. May 22, 1995) (trial court clearly has power to employ adverse inference as sanction for intentional destruction of evidence); Collins v. Throckmorton, 425 A.2d 146, 150 (Del.1980) (adverse inference allowed); State v. Langlet, 283 N.W.2d 330, 333 (Iowa 1979) (fact finder may draw inference that evidence destroyed was unfavorable to party responsible for its spoliation); Larsen v. Romeo, 254 Md. 220, 228, 255 A.2d 387 (1969) (generally, inference arises from suppression or destruction of evidence by litigant that such evidence would be unfavorable to his case); DiLeo v. Nugent, 88 Md.App. 59, 71, 592 A.2d 1126, cert. granted, 325 Md. 18, 599 A.2d 90 (1991) (adverse inference appropriate where spoliation is unexplained and intentional); Trupiano v. Cully, 349 Mich. 568, 570, 84 N.W.2d 747 (1957) (intentional spoliation raises inference against party that caused spoliation); Fonda v. St. Paul City R. Co., 71 Minn. 438, 452, 74 N.W. 166 (1898) (unfavorable inference arises from spoliation or suppression of evidence); Brown v. Hamid, 856 S.W.2d 51, 55 (Mo.1993) (spoliation "without a satisfactory explanation gives rise to an inference unfavorable to the spoliator"); State v. Council in Division of Resource Development of the Dept. of Conservation & Economic Development, 60 N.J. 199, 202, 287 A.2d 713 (1972) (Division of Resource Development ) (adverse inference permitted); McHugh v. McHugh, 186 Pa. 197, 201, 40 A. 410 (1898) (spoliation of evidence by party gives rise to adverse inference); F.R. Patch Mfg. Co. v. Protection Lodge, No. 215, International Assn. of Machinists, 77 Vt. 294, 329, 60 A. 74 (1905) (inference arises from spoliation of evidence); Jagmin v. Simonds Abrasive Co., 61 Wis.2d 60, 81, 211 N.W.2d 810 (1973) (operation of maxim omnia praesumuntur contra spoliatorem allows for adverse inference); Hay v. Peterson, 6 Wyo. 419, 433-39, 45 P. 1073 (1896) (spoliation by claimant raises inference against his claim); 29 Am.Jur.2d, Evidence § 244 (1994) ("[i]t is a general rule that the intentional spoliation or destruction of evidence relevant to a case raises ... an inference that this evidence would have been unfavorable"). The rule that we adopt, however, requires some elaboration.

More specifically, we conclude that an adverse inference may be drawn against a party who has destroyed evidence only if the trier of fact is satisfied that the party who seeks the adverse inference has proven the following. First, the spoliation must have been intentional. Akiona v. United States 938 F.2d 158, 161 (9th Cir.1991), cert. denied, 503 U.S. 962, 112 S.Ct. 1567, 118 L.Ed.2d 212 (1992); Bihun v. AT & T Information Systems, Inc., 13 Cal.App.4th 976, 994, 16 Cal.Rptr.2d 787 (1993); Collins v. Throckmorton, supra, 425 A.2d at 150; State v. Langlet, supra, 283 N.W.2d at 333; Larsen v. Romeo, supra, 254 Md. at 228, 255 A.2d 387; DiLeo v. Nugent, supra, 88 Md.App. at 71, 592 A.2d 1126; Trupiano v. Cully, supra, 349 Mich. at 570, 84 N.W.2d 747; Brown v. Hamid, supra, 856 S.W.2d at 56-57; Jagmin v. Simonds Abrasive Co., supra, 61 Wis.2d at 81, 211 N.W.2d 810. By this, we do not mean that there must have been an intent to perpetrate a fraud ¹¹ by the party or his agent who destroyed the evidence but, rather, that the evidence had been disposed of intentionally and not merely destroyed inadvertently. Collins v. Throckmorton, supra, 425 A.2d at 150 (adverse inference not appropriate because...