Diana v. Netjets Services, Inc.

• Decision Date: 12 December 2007
• Docket Number: No. CV 07 5011701.,CV 07 5011701.
• Citation: 50 Conn.Sup. 655,974 A.2d 841
• Parties: Scott DIANA v. NETJETS SERVICES, INC., et al.
• Court: Connecticut Superior Court

974 A.2d 841

50 Conn.Sup. 655

Scott DIANA v. NETJETS SERVICES, INC., et al.

No. CV 07 5011701.

Superior Court of Connecticut, Judicial District of New Haven.

December 12, 2007.

Trotta, Trotta & Trotta, for the plaintiff.

Diserio Martin O'Connor & Castiglioni, LLP, Stamford, for the defendant Atlantic Aviation Flight Services, Inc., et al.

BELLIS, J.

FACTS

The plaintiff, Scott Diana, alleges the following facts in his amended complaint. On or about May 13, 2005, Diana was at Hartford Brainard Airport in Hartford for a flight lesson, when he was struck and injured by the wing of an aircraft while walking with his flight instructor. The aircraft was operated by two airmen¹ employed by defendant NetJets Services, Inc., and, or, defendant NetJets Aviation, Inc. (NetJets).² The complaint further alleges that the identity of the two airmen is unknown to the plaintiff, as is the tail number of the aircraft that struck Diana. Subsequently, Diana's instructor filed an incident report, which included the tail number of the aircraft that struck Diana, and delivered it by hand to defendant Atlantic Aviation Flight Services, Inc., and, or, defendant Brainard Airport Services, Inc.³ Agents or employees of the Atlantic defendants intentionally discarded it; consequently, the Federal Aviation Administration was never notified of the incident and did not conduct an investigation thereof.

On May 22, 2007, Diana commenced the present action against NetJets, Atlantic and Midwest Air Traffic Control Services, Inc. (Midwest). The Atlantic defendants filed a motion to strike counts three and four of the amended complaint on the ground that third party intentional spoliation of evidence is not a cognizable cause of action and, alternatively, that the plaintiff has failed to state all the essential elements of third party spoliation of evidence.

DISCUSSION

"The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Gonn. 576, 580, 693 A.2d 293 (1997). The court takes the facts "to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Sullins v. Rodriguez, 281 Conn. 128, 132, 913 A.2d 415 (2007). "[G]rounds other than those specified should not be considered...." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001).

"A motion to strike is the proper vehicle to test whether Connecticut is ready to recognize some newly emerging ground of liability." (Internal quotation marks omitted.) Chenarides v. Bestfoods Baking Co., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 03 0197877 (March 30, 2005) (Hiller, J.) (39 Conn. L. Rptr. 90); see also Anastasia v. Mitsock, Superior Court, judicial district of New Haven, Docket No. CV 05 4012156 (December 12, 2006) (Jones, J.) (42 Conn. L. Rptr. 496); Bakker v. Brave Industries, Inc., 48 Conn.Supp. 70, 76, 829 A.2d 928 (2002).

The Atlantic defendants move to strike counts three and four⁴ on the ground that Diana fails to state a cognizable cause of action for which relief may be granted — first, because Connecticut does not recognize claims of third party intentional spoliation of evidence and, second, because even if Connecticut were to recognize this cause of action, Diana does not sufficiently allege all the necessary elements.

The Tort of Intentional Spoliation of Evidence

Spoliation of evidence was first expressly recognized as a tort by the California District Court of Appeals in 1986;⁵ since then, a handful of other jurisdictions have recognized it as well.⁶ Our Supreme Court recognized intentional spoliation of evidence as a cognizable, independent tort in Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 905 A.2d 1165 (2006).

The relevant facts of Rizzuto are as follows. In December 1996, the plaintiff, Leandro Rizzuto, climbed a ladder manufactured by Davidson Ladders, Inc., while he was shopping at a Home Depot store in Norwalk. The ladder collapsed suddenly and Rizzuto fell to the floor, incurring serious injuries. He filed a product liability action against Davidson Ladders, Inc., and Home Depot USA, Inc., in August, 1997, alleging that the ladder had been manufactured and designed improperly, and had been sold without proper warnings. Thereafter, Rizzuto asked the defendants repeatedly to preserve the ladder and to allow him to examine it. In 1998, the defendants' expert examined the ladder and concluded that it was not defective. The defendants then destroyed the ladder, never affording Rizzuto an opportunity to inspect it. Id., at 227-28, 905 A.2d 1165.

The Supreme Court chose to recognize the tort of intentional spoliation of evidence as an independent cause of action, because "the existing nontort remedies are insufficient to compensate victims of spoliation and to deter future spoliation when a first party defendant destroys evidence intentionally with the purpose and effect of precluding a plaintiff from fulfilling his burden of production in a pending or impending case." Id., at 243, 905 A.2d 1165. The court defined the intentional spoliation of evidence as "the intentional destruction, mutilation, or significant alteration of potential evidence for the purpose of defeating another person's recovery in a civil action." (Internal quotation marks omitted.) Id. The Rizzuto court clearly laid out the essential elements of an intentional spoliation of evidence claim: "(1) the defendant's knowledge of a pending or impending civil action involving the plaintiff; (2) the defendant's destruction of evidence; (3) in bad faith, that is, with intent to deprive the plaintiff of his cause of action; (4) the plaintiff's inability to establish a prima facie case without the spoliated evidence; and (5) damages." Id., at 244-45, 905 A.2d 1165.

[50 Conn.Sup. 466]

In Rizzuto, the court recognized the tort "when a first party defendant destroys evidence intentionally...." (Emphasis added.) Id., at 234-35, 905 A.2d 1165. The court, however, chose to express "no opinion as to whether this state recognizes a cause of action for third party spoliation of evidence." (Emphasis added.) Id., at 235 n. 5, 905 A.2d 1165. The court cited Dowdle Butane Gas Co. v. Moore, 831 So.2d 1124 (Miss.2002), to differentiate first party and third party spoliators. Rizzuto v. Davidson Ladders, Inc., supra, 280 Conn. at 234 n. 5, 905 A.2d 1165. "A first party spoliator is a party to the underlying action who has destroyed or suppressed evidence relevant to the plaintiffs claims against that party.... A third-party spoliator is oftentimes a stranger to the underlying litigation but ... may be a party to the underlying litigation. The third party spoliator is alleged to have destroyed evidence relevant to the plaintiffs causes of action against another defendant(s). In other words, a third-party spoliator is a party not alleged to have committed the underlying tort as to which the lost or destroyed evidence related." (Citations omitted; internal quotation marks omitted.) Dowdle Butane Gas Co. v. Moore, supra, at 1128-29.⁷

In the present case, the Atlantic defendants assert that they are third party spoliators because Diana alleges that they spoliated evidence but does not allege that Atlantic "had any part in the underlying negligence that caused [the] [plaintiffs personal injuries." Diana counters that the Atlantic defendants are first party spoliators because he filed one action against all the tortfeasors and has not attempted to bring a separate action against Atlantic for intentionally destroying the incident report. Although it is true that all the defendants are parties to this lawsuit, no claim other than the intentional spoliation of evidence claim has been leveled against the Atlantic defendants. Rizzuto speaks in terms of "`causes of action'" and "`claims'" — not lawsuits. Rizzuto v. Davidson, Ladders, Inc., supra, 280 Conn. at 234 n. 5, 905 A.2d 1165. The evidence the Atlantic defendants allegedly destroyed is relevant to Diana's causes of actions against the other defendants, NetJets and Midwest. Diana does not allege that the Atlantic defendants destroyed or suppressed evidence relevant to his claims against the Atlantic defendants. The Atlantic defendants, therefore, are third party spoliators.

Atlantic argues that the counts against them should be stricken, as there is no cause of action for third party intentional spoliation of evidence in this state. Diana maintains that a cause of action for third party spoliation should stand, even if the tort has not yet been recognized.

Our Supreme Court, as noted previously, gave no opinion as to whether it would recognize a cause of action for third party intentional spoliation of evidence. Id., at 235 h. 5, 905 A.2d 1165. There is no other Connecticut appellate authority on either first party or third party spoliation claims, and, prior to Rizzuto, the few trial courts that had been presented with the issue had declined to recognize a cause of action for spoliation of evidence.⁸ Atlantic suggests that because the Supreme Court found the cause of action with regard to first party spoliators, specifically, and there is no other binding authority, this court should follow pre-Rizzuto trial court rulings involving spoliation claims. This court declines to follow the pre-Rizzuto decisions, which were decided in the absence of any appellate authority. This court, unlike its predecessors, is not called on to rule on this issue in darkness but may be guided by...