Koplin v. Rosel Well Perforators, Inc., 59986

• Decision Date: 27 March 1987
• Docket Number: No. 59986,59986
• Parties: , 70 A.L.R.4th 973 Kelley E. KOPLIN, Appellant, v. ROSEL WELL PERFORATORS, INC., et al., Appellees.
• Court: Kansas Supreme Court

Page 1177

734 P.2d 1177

241 Kan. 206, 70 A.L.R.4th 973

Kelley E. KOPLIN, Appellant, v. ROSEL WELL PERFORATORS, INC., et al., Appellees.

No. 59986.

Supreme Court of Kansas.

March 27, 1987.

Syllabus by the Court

1. Before there can be any recovery in tort, there must be a violation of a duty owed by one party to the person seeking recovery.

2. Absent some independent tort, contract, agreement, voluntary assumption of

duty, or special relationship of the parties, the tort of "the intentional interference with a prospective civil action by spoliation of evidence" should not be recognized in Kansas.

3. In response to a certified question from the federal district court asking whether Kansas would recognize a common law tort action for intentional interference with a prospective civil action by spoliation of evidence, it is held: The answer is in the negative under the facts of this case.

Michael K. Mohrman, of Richards, Brandt, Miller & Nelson, Salt Lake City, argued and Mark S. Gunnison, of McDowell, Rice & Smith, Chartered, Kansas City, was with him on brief, for appellant.

Steven D. Ruse, of Shughart, Thomson & Kilroy, P.C., Overland Park, argued and Anthony F. Rupp, was with him on brief, for appellee Rosel Well Perforators, Inc.

HOLMES, Justice:

This case was originally filed in the United States District Court for the District of Kansas and comes to this court by certification from that court pursuant to the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq. The order of the certifying court meets all the requirements of the act and we accepted certification.

The order from the United States District Court provides in pertinent part:

"Pursuant to K.S.A. 60-3201 et seq., this court, upon its own motion, hereby certifies to the Kansas Supreme Court the following questions of Kansas law, which are deemed to be determinative of this action and as to which no controlling precedent exists in the decisions of the Kansas Supreme Court or Kansas Court of Appeals.

(1) Whether Kansas would recognize a common law tort action for intentional interference with a prospective civil action by spoliation of evidence?

(2) If so, whether such a cause of action against plaintiff's employer would be barred by the exclusive remedy provisions of the Kansas Workmen's Compensation Act, K.S.A. 44-501 et seq.?

(3) If not barred by the Workmen's Compensation Act, whether, under the facts of this case, plaintiff has sufficiently alleged such a cause of action?

"In accordance with K.S.A. 60-3203, the court sets forth the following statement of relevant facts. This case arises out of injuries suffered by the plaintiff employee in an on-the-job accident. The accident occurred when a piece of equipment called a T-clamp failed due to an alleged defect. The T-clamp was manufactured and sold to the defendant employer Rosel Well Perforators, Inc., by the defendants Gearhart Industries, Inc., Pengo Industries and Geosource, Inc. Plaintiff alleges that immediately after the accident, an agent of Rosel Well Perforators, Inc., intentionally destroyed the T-clamp so that plaintiff would no longer have access to it for purposes of potential litigation.

"Plaintiff recovered workmen's compensation benefits for his injuries. He brings this action against Gearhart Industries, Inc., Pengo Industries and Geosource, Inc., on product liability and breach of warranty claims. He also makes claims against his employer, Rosel Well Perforators, Inc., for 'interference with a prospective civil action by spoliation of evidence.' Plaintiff claims that, as a direct result of Rosel Well Perforators, Inc.'s, destruction of the T-clamp, plaintiff may be unable to produce and/or show how the T-clamp failed and caused his injuries. Thus, plaintiff contends that he has lost a valuable expectancy in recovering against Gearhart Industries, Inc., Pengo Industries and Geosource, Inc., on his product liability and breach of warranty claims.

"Rosel Well Perforators, Inc., moves to dismiss plaintiff's cause of action for interference with a prospective civil action by spoliation of evidence for failure to state a claim upon which relief can be granted. Defendant argues that plaintiff's claim for spoliation of evidence is a common law claim for damages for injuries for which plaintiff has already recovered compensation under the Kansas Workmen's Compensation Act, and that the Act provides plaintiff his sole remedy. Defendant also argues that Kansas law does not recognize an independent tort for interference with a prospective civil action by spoliation of evidence as alleged by plaintiff. Finally, defendant argues that even if Kansas law did recognize such a cause of action, the facts alleged by plaintiff would be insufficient to state a claim.

"This court determines that these questions represent significant issues of state law to which no controlling Kansas precedent exists to guide our decision. Furthermore, the court finds that these questions will be determinative of plaintiff's cause of action for the tort of spoliation of evidence against Rosel Well Perforators, Inc., and directly affects plaintiff's claims against Gearhart Industries, Inc., Pergo Industries and Geosource, Inc."

At the outset we note that this matter comes to us on the basis of the pleadings and without the benefit of any discovery. Under these circumstances, we must assume the facts stated in the plaintiff's complaint are true even though they might appear somewhat improbable and despite what may be insurmountable problems of proof. Thus, we accept plaintiff's allegations that an agent of his employer intentionally destroyed the T-clamp for the purpose of denying plaintiff access to evidence to be used in an action against the manufacturer and distributors of the T-clamp. The plaintiff describes his cause of action as being a new tort denominated as "the intentional interference with a prospective civil action by spoliation of evidence." We now turn to the question of whether this court should adopt such a cause of action by judicial decree.

Appellant readily concedes that the tort of spoliation of evidence is relatively new and so far as we can determine very few states have actually recognized such a tort. Absent some special relationship or duty rising by reason of an agreement, contract, statute, or other special circumstance, the general rule is that there is no duty to preserve possible evidence for another party to aid that other party in some future legal action against a third party.

First, a distinction must be made regarding the basis for a suit involving lost or destroyed evidence. Such a suit may be based upon negligence, wherein the plaintiff asserts the defendant negligently destroyed the evidence which impaired the plaintiff's right to sue a third party tortfeasor; or such a suit may be based upon intent, in which plaintiff asserts the defendant intentionally destroyed the evidence. The plaintiff's complaint, in the instant case, titles his cause of action as "TORTIOUS INTERFERENCE WITH PROSPECTIVE CIVIL ACTION BY SPOLIATION OF EVIDENCE." In setting forth his allegations, the plaintiff states the defendant intentionally destroyed and/or disposed of the T-clamp.

More states have been faced with cases involving the negligent destruction of evidence than cases involving the intentional destruction of evidence. When negligence is the basis of the suit alleging an economic injury resulting from the destruction of evidence, a duty on behalf of the defendant arising from the relationship between the parties or some other special circumstance must exist in order for the cause of action to survive. In Bondu v. Gurvich, 473 So.2d 1307 (Fla.Dist.App.1984), a hospital had failed to preserve certain medical records pertaining to plaintiff. As a result, plaintiff lost a medical malpractice lawsuit against certain physicians because, in the absence of the hospital records, plaintiff was unable to obtain an expert witness. The Florida Court of Appeals, over a strong dissent by Chief Judge Schwartz, held that because of the hospital's statutory duty to maintain and make available medical records, plaintiff would be allowed to pursue a claim against the hospital for alleged spoliation of evidence. The basis for the decision in Bondu was a Florida statute which imposed a duty upon all hospitals to maintain and make available to patients their medical records, and the Court expressly found that it was the hospital's breach of that duty which gave rise to plaintiff's cause of action. Thus, the tort recognized in Bondu was based upon a statutory duty, and not upon any independent common-law duty to preserve evidence. It should be noted that in Bondu the plaintiff had also asserted a claim based upon the intentional destruction of records which was dismissed for failure to state a cause of action. No appeal was taken from that ruling.

In Coley v. Ogden Mem. Hosp., 107 A.D.2d 67, 485 N.Y.S.2d 876 (1985), plaintiff sustained injuries in the course of his employment when he fell from a ladder which collapsed. The ladder was discarded. Plaintiff sued his employer, alleging that the failure to preserve the ladder precluded discovery of the identity of its manufacturer and thereby foreclosed plaintiff's potential product liability action against third parties. The court affirmed the trial court's dismissal of plaintiff's claim, stating:

"We are unable to identify any duty owed by defendant to plaintiff with regard to the safekeeping of the ladder. The record reveals no promise by defendant or its employees to inspect or safeguard the ladder for plaintiff's benefit...." 107 A.D.2d at 69, 485 N.Y.S.2d 876.

A federal district court applying Pennsylvania law allowed a negligence claim based on failure to preserve physical evidence in Pirocchi v. Liberty Mutual Insurance Co., 365 F.Supp. 277 (E.D.Pa.1973). There, plaintiff was injured in the course of his employment when he...