Rodriguez v. Schutt, 93CA1194

Citation896 P.2d 881
Decision Date15 December 1994
Docket NumberNo. 93CA1194,93CA1194
PartiesJames and Yolanda RODRIGUEZ, Plaintiffs-Appellees and Cross-Appellants, v. John W. SCHUTT, Defendant-Appellant and Cross-Appellee. . V
CourtCourt of Appeals of Colorado

Charles Welton, P.C., Charles Welton, Philip A. Klein, Denver, for plaintiffs-appellees and cross-appellants.

Harris, Karstaedt, Jamison & Powers, Arthur R. Karstaedt, III, A. Peter Gregory, Englewood, for defendant-appellant and cross-appellee.

Hall & Evans, L.L.C., Alan Epstein, Denver, for defendant-appellant and cross-appellee (On the Briefs).

Opinion by Judge TAUBMAN.

In this negligence action to recover damages for personal injuries, defendant, John W. Schutt (landlord), appeals the judgment entered on a jury verdict in favor of plaintiffs, James (husband) and Yolanda (wife) Rodriguez (collectively tenants). Plaintiffs cross-appeal regarding the calculation of interest on the judgment. We affirm but remand for recalculation of interest.

Husband sustained an injury to his hand and wrist from broken glass on a storm door to tenants' apartment. Tenants had rented the apartment from landlord who owned the building. They claimed that the glass in the storm door was cracked and that a slider had been "jerry-rigged" into it in place of a stationary piece of glass. Upon returning home one evening, husband, who had forgotten his keys, knocked on the door to get his wife's attention. As a result, the slider broke, the window shattered, and the pieces came down on the husband's hand and wrist causing an injury. Subsequently, tenants brought this action against landlord, husband seeking damages for his injuries and wife claiming loss of consortium.

At trial, tenants testified that they retained the original slider but later lost it during the move from the apartment to their subsequent residence. However, they had taken photographs of the slider approximately two months after the injury occurred, and those photographs were admitted into evidence at trial.

In addition, landlord's apartment manager testified at trial that she had observed the slider prior to the injury and noticed that it was in very poor condition and that the photographs accurately depicted the slider. She further testified that at sometime prior to the accident, while talking to landlord in front of tenants' apartment, the top glass window on the screen door fell down, and she observed that the pins to the slider were bent in such a way so that they did not properly support the window.

Tenants further testified that when they moved into the apartment they walked through it with landlord and pointed out to him several things that needed to be repaired and that he agreed to make such repairs. Tenants claimed that they had given a written list of those items to landlord. They testified that they had retained a copy of the list, which they recalled giving to their attorney for use in this case. However, their attorney asserted during a deposition that he had no recollection of ever having received a copy of the list. Consequently, neither tenants nor landlord produced a copy of the list at trial. Tenants, however, were permitted to testify at trial regarding the contents of the lost list.

The jury entered a verdict on behalf of husband for $275,000 and wife for $25,000. However, the jury found husband 30 percent contributorily negligent, and accordingly, the trial court reduced the awards and entered judgment in favor of husband for $192,500 and wife for $17,500. Then, upon plaintiffs' motion, the trial court calculated interest on the judgment at 9 percent per annum from the date of the injury, and this appeal followed.

Landlord argues that, since tenants failed to produce the slider and the list, the trial court should have imposed a sanction against them in order to reduce the evidentiary imbalance created by the loss or destruction of those items. Conversely, if the judgment is affirmed, landlord seeks a $5,000 offset from the judgment for a payment made by his insurer to husband prior to trial. Tenants, on cross-appeal, challenge the operation of § 13-21-101, C.R.S. (1987 Repl.Vol. 6A) on both statutory and constitutional grounds.

I. Appropriateness of Sanctions for the Spoliation of Evidence

Landlord contends that the trial court erred by not excluding from evidence any reference to the lost list or slider as a sanction for their not being produced at trial. Alternatively, he contends that the trial court should have tendered to the jury his proposed instruction directing it to infer that had the list or slider been introduced at trial it would have been adverse to tenants' case. We perceive no error.

Relying on People v. District Court, 200 Colo. 65, 612 P.2d 87 (1980), and Estate of Holmes, 98 Colo. 360, 56 P.2d 1333 (1936), landlord asserts that where evidence is lost or destroyed, it is incumbent on the trial court to levy an appropriate sanction, either by excluding any reference to the lost or destroyed evidence or by affording the party deprived of the evidence an "adverse inference" jury instruction. However, those cases are distinguishable because both addressed the situation where evidence had been intentionally destroyed. In this case, however, there was no indication that tenants had intentionally lost or destroyed either the slider or the list.

Landlord admits that Colorado courts have entered sanctions against a party with lost or destroyed evidence only where the evidence had been intentionally destroyed, but have not addressed the situation where, as here, the evidence was not willfully destroyed. Because of this absence of Colorado precedent, we look to other jurisdictions to determine whether a sanction is warranted against a party who loses evidence before trial.

In general, most courts addressing the issue have held that an adverse inference may be drawn only when it has been demonstrated that the destruction of evidence was intentional. See Hirsch v. General Motors Corp., 266 N.J.Super. 222, 628 A.2d 1108 (1993) (holding that, as a prerequisite to drawing an adverse inference instruction, there must be a showing that the destruction of evidence was intentional); Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68 (S.D.N.Y.1991); Britt v. Block, 636 F.Supp. 596 (D.Vt.1986); but see Glover v. BIC Corp., 6 F.3d 1318 (9th Cir.1993).

In Turner v. Hudson Transit Lines, Inc., supra, the court explained that the concept of providing an adverse inference instruction as a sanction for spoliation is based on two rationales. The first is punitive. Allowing the trier of fact to draw an adverse inference presumably deters the parties from destroying evidence to prevent its introduction at trial. The other rationale is remedial, to restore the putative prejudiced party to the same position with respect to its ability to prove its case that it would have held had there been no spoliation. Further, the trial court has broad discretion as to whether to permit the jury to draw an adverse inference from the loss or destruction of evidence. Glover v. BIC Corp., supra.

The state of mind of the party that destroys evidence is an important consideration when determining whether an adverse inference is the appropriate sanction. Where a party intentionally destroys evidence to prevent its introduction at trial, the trial court clearly has the power to employ an adverse inference as a sanction. Turner v. Hudson Transit Lines, Inc., supra.

In addition, such an inference may be appropriate even in the absence of a showing of bad faith in order to remedy the evidentiary imbalance created by the loss or destruction of evidence.

However, where the destruction was negligent rather than willful, special caution must be exercised to ensure that the inference is commensurate with information that was reasonably likely to have been contained in the destroyed evidence. Where ... there is no extrinsic evidence whatever tending to show that the destroyed evidence would have been unfavorable to the spoliator, no adverse inference is appropriate.

Turner v. Hudson Transit Lines, Inc., supra, at 77.

Additionally, CRE 1004(1) provides that the original of a written document is not required, and other evidence of its contents is admissible if the originals have been lost or destroyed, unless the proponent lost or destroyed them in bad faith. "The essential principle of preferred evidence is that it is to be procured and offered if it can be had.... The thought is here not that a certain kind of evidence is absolutely necessary, but that a certain kind is to be used if it is available." 4 J. Wigmore, Evidence § 1192 (Chadbourn Rev.1972) (emphasis in original). Therefore, when the proponent cannot produce the original of a written document, because of its loss or destruction, the trial court should admit secondary evidence.

CRE 1004(1) requires exclusion of evidence only when the proponent's bad faith causes the loss or destruction of the original document. The proponent must prove, to the satisfaction of the court, the absence of bad faith. 5 Weinstein's Evidence 1004(1) (1994).

We see no reason why this same rationale should not apply to evidence other than written documents. See Puritan Insurance Co. v. Superior Court, 171 Cal.App.3d 877, 217 Cal.Rptr. 602 (1985) (photographs showing real evidence that had been inadvertently lost by expert should not be excluded since loss was not intentional or in bad faith).

Here, since the trial court did not find that tenants lost or destroyed the list or slider in bad faith, the testimony and the photographs were admissible secondary evidence. Furthermore, since there was no evidence tending to show that the list or the slider would have been unfavorable to tenants, no adverse inference was appropriate and, thus, the trial court acted within its discretion.

II. Reduction of Judgment to Reflect Pretrial...

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    • United States
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    ...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 intent......
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1 books & journal articles
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