Coleman v. Eddy Potash, Inc.

• Decision Date: 22 September 1995
• Docket Number: No. 21470,21470
• Citation: 905 P.2d 185,120 N.M. 645,1995 NMSC 63
• Parties: Imogene COLEMAN, Plaintiff-Appellant, v. EDDY POTASH, INC., Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 185

905 P.2d 185

120 N.M. 645

Imogene COLEMAN, Plaintiff-Appellant, v. EDDY POTASH, INC., Defendant-Appellee.

No. 21470.

Supreme Court of New Mexico.

Sept. 22, 1995.

[120 N.M. 647] Hanratty Law Firm, Kevin J. Hanratty, Artesia, for Appellant.

Law Offices of W.T. Martin, Jr., P.A., W.T. Martin, Jr., David W. Strickler, Carlsbad, for Appellee.

OPINION

MINZNER, Justice.

Plaintiff-Appellant Imogene Coleman (Coleman) appeals from a district court order dismissing her claims of intentional and negligent spoliation of evidence made against her former employer, Eddy Potash, Inc. (Eddy Potash). We are presented with the questions whether Coleman's allegations of intentional and negligent spoliation of evidence state a claim for relief under New Mexico law and, if so, whether those claims are barred by the exclusivity provisions of the Workers' Compensation Act (WCA or Act), NMSA 1978, §§ 52-1-6 (effective January 1, 1992), -8, -9 (Repl.Pamp.1991).¹ We hold that a claim for intentional spoliation of evidence is cognizable in New Mexico, and that Coleman's claim for intentional spoliation of evidence is not barred by the exclusivity provisions of the WCA. In addition, rather than recognize an independent tort of negligent spoliation of evidence, we address Coleman's claim of negligence under traditional negligence principles and determine that the allegations are insufficient to state a claim for relief. We therefore affirm in part, reverse in part, and remand.

I. FACTS

In May 1990 Coleman suffered serious injuries when she fell sixty-six feet during the course of her employment at a potash mine. She was riding on a vertical conveyor belt manlift that malfunctioned and failed to stop when she reached the top of the lift. Eddy Potash maintained a workers' compensation policy under which Coleman received appropriate benefits. Some time after the accident, and after inspection of the manlift by the Mine Safety & Health Administration, Eddy Potash disassembled and replaced the manlift, which had been in use at the mine for over forty years. Certain parts of the manlift are now missing.

After her accident Coleman sued a number of corporations involved in the manufacture, distribution, inspection, or servicing of manlifts. Coleman alleged that the disassembly of the manlift and the loss of important parts prejudiced her ability to recover against these defendants, particularly regarding her product liability claims. Asserting that Eddy Potash should have anticipated the need to preserve the manlift and that the manlift was dismantled with the intent to disrupt her case, Coleman included Eddy Potash with the other corporations in her suit for damages, and specifically charged Eddy Potash with the torts of intentional and negligent spoliation of evidence. The district court granted Eddy Potash's motion to dismiss the claims against it, and Coleman now appeals.

II. HISTORY OF SPOLIATION OF EVIDENCE TORT

This Court has not addressed the question whether to recognize the tort of spoliation of evidence. In Bush v. Thomas, 119 N.M. 54, 888 P.2d 936 (Ct.App.1994), cert. denied, 119 N.M. 20, 888 P.2d 466 (1995), the Court of Appeals recently discussed this tort and assumed for purposes of its discussion that the defendant had a duty to preserve certain medical records. Id. at 55, 888 P.2d at 937. However, since the Court concluded that the plaintiff in that case failed to prove that the loss of the medical records had impaired her ability to prove her medical malpractice claim, it was unnecessary to actually decide whether negligent spoliation would be recognized as an independent tort in New Mexico. Id.

Two judges in the United States District Courts for the District of New Mexico have determined that New Mexico would recognize the torts of intentional and negligent spoliation of evidence under the appropriate circumstances. Dickey v. Norge Appliances, Civ. No. 89-1104-JB (D.N.M. Jan. 11, 1991); Black Hills Aviation, Inc. v. United States, Civ. No. 90-0336-HB (D.N.M. Dec. 26, 1990). Relying on our decisions in Schmitz v. Smentowski, 109 N.M. 386, 785 P.2d 726 (1990) (recognizing cause of action for prima facie tort), and Wilschinsky v. Medina, 108 N.M. 511, 775 P.2d 713 (1989) (holding that physicians owe a duty to third persons who foreseeably may be harmed by negligent treatment of a patient), the Dickey court determined that this Court is willing to apply traditional principles of tort law to new fact situations in order to establish legal duties and liabilities not previously recognized. See Dickey, slip op. at 4.

In general, however, the tort of spoliation of evidence has not been widely adopted in other jurisdictions, nor has much agreement emerged on its contours and limitations. See generally Lawrence Solum & Stephen Marzen, Truth and Uncertainty: Legal Control of the Destruction of Evidence, 36 Emory L.J. 1085, 1100-06 (1987); Theresa M. Owens, Note, Should Iowa Adopt the Tort of Intentional Spoliation of Evidence in Civil Litigation?, 41 Drake L.Rev. 179, 181-90 (1992); Thomas G. Fischer, Annotation, Intentional Spoliation of Evidence, Interfering with Prospective Civil Action, as Actionable, 70 A.L.R.4th 984 (1989).

In Smith v. Superior Court, 151 Cal.App.3d 491, 198 Cal.Rptr. 829, 833 (1984), California became the first jurisdiction to recognize explicitly a tort for intentional spoliation of evidence. The Smith court analogized intentional spoliation of evidence to the tort of intentional interference with prospective business advantage, id., 198 Cal.Rptr. at 836, and concluded that a prospective civil action in a products liability case is a probable expectancy entitled to legal protection, id. at 837. Following, Smith California recognized a cause of action for negligent spoliation of evidence in Velasco v. Commercial Building Maintenance Co., 169 Cal.App.3d 874, 215 Cal.Rptr. 504, 506 (1985).

As in California, Alaska and Ohio also have recognized intentional spoliation of evidence as a distinct tort. Hazen v. Municipality of Anchorage, 718 P.2d 456, 463 (Alaska 1986); Smith v. Howard Johnson Co., 67 Ohio St.3d 28, 615 N.E.2d 1037, 1038 (1993). Alaska has declined to extend its ruling to cover negligent destruction or loss of evidence. Sweet v. Sisters of Providence in Washington, 881 P.2d 304, 313 (Alaska 1994) (shifting of burden of proof to defendant on issues of negligence and causation sufficient remedy for party claiming negligent spoliation of evidence by party defendant; no need to decide whether separate tort would be appropriate against third party not associated with underlying lawsuit).

Three states, Illinois, New Jersey, and New York, have recognized causes of action analogous to a tort of spoliation without fully embracing California's approach. Rodgers v. St. Mary's Hosp., 198 Ill.App.3d 871, 145 Ill.Dec. 295, 556 N.E.2d 913, 916 (1990) (recognizing statutory cause of action for failure to preserve medical records and holding that violation of statute imposing such a duty establishes prima facie evidence of negligence), aff'd, 149 Ill.2d 302, 173 Ill.Dec. 642, 597 N.E.2d 616 (1992); Hirsch v. General Motors Corp., 266 N.J.Super. 222, 628 A.2d 1108, 1115 (1993) (recognizing claim for intentional fraudulent concealment of evidence); Weigl v. Quincy Specialties Co., 158 Misc.2d 753, 601 N.Y.S.2d 774, 777 (Sup.Ct.1993) (allowing amendment of complaint to substitute spoliation claims with causes of action for common law negligence and prima facie tort).

Florida recognized a cause of action for the negligent spoliation of evidence in Bondu v. Gurvich, 473 So.2d 1307, 1312 (Fla.Dist.Ct.App.1984), review denied, 484 So.2d 7 (Fla.1986). In doing so, the Bondu court relied on criteria to establish a claim in ordinary negligence--particularly on the need to show the existence of a duty recognized by law requiring the defendant to conform to a certain standard of conduct for the benefit of the plaintiff. Id. at 1312. That court found a duty in state administrative records and statutes to make and preserve certain medical records. Florida courts later determined that a contractual agreement also may give rise to the duty to preserve potential evidence. Miller v. Allstate Ins. Co., 573 So.2d 24, 27 (Fla.Dist.Ct.App.1990), review denied, 581 So.2d 1307 (Fla.1991); see also Continental Ins. Co. v. Herman, 576 So.2d 313, 315 (Fla.Dist.Ct.App.1990), review denied, 598 So.2d 76 (Fla.1991).

A number of states have rejected the spoliation tort or have declined to recognize it as a separate cause of action under the particular facts before the court. E.g., La Raia v. Superior Court, 150 Ariz. 118, 722 P.2d 286, 289 (1986) (en banc) (plaintiff's action for personal injury within realm of existing tort law); Murphy v. Target Prods., 580 N.E.2d 687, 690 (Ind.Ct.App.1991) (absent promise, contract, statute, or special circumstances, employer has no duty to preserve evidence for employee's use in third-party suit); Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, 734 P.2d 1177, 1183 (1987) (same); Miller v. Montgomery County, 494 A.2d 761, 768 (Md.Ct.Spec.App.1985) (appropriate remedy for alleged spoliation of evidence by party to cause of action is evidentiary presumption that evidence was unfavorable, not separate or collateral action), cert. denied, 304 Md. 299, 498 A.2d 1185 (1985); Panich v. Iron Wood Prods. Corp., 179 Mich.App. 136, 445 N.W.2d 795, 798 (1989) (refusing to create tort under facts of case); Federated Mut. Ins. Co. v. Litchfield Precision Components, Inc., 456 N.W.2d 434, 436 (Minn.1990) ("[A]n action for negligent spoliation could be stated under existing negligence law without creating a new tort."); Brown v. Hamid, 856 S.W.2d 51, 56-57 (Mo.1993) (en banc) (no basis presented for recognition of torts of intentional or negligent spoliation of evidence); Brewer v. Dowling, 862 S.W.2d 156, 159-60 (Tex.Ct.App.1993) (intentional spoliation of evidence raises presumption that...