Lonnie C. Simmons, Esq.
Lia M. DiTrapano, Esq.
DiTrapano, Barrett & DiPiero
Charleston, West Virginia
Attorneys for Plaintiffs
James M. Cagle, Esq.
Charleston, West Virginia
Attorney for Defendants
JUSTICE MAYNARD delivered the Opinion of the Court.
1. “West Virginia Code, 58-5-2 (1967), allows for certification of a question arising from a denial of a motion for summary judgment. However, such certification will not be accepted unless there is a sufficiently precise and undisputed factual record on which the legal issues can be determined. Moreover, such legal issues must substantially control the case.” Syllabus Point 5, Bass v. Coltelli, 192 W.Va. 516, 453 S.E.2d 350 (1994).
2. West Virginia does not recognize spoliation of evidence as a stand-alone tort when the spoliation is the result of the negligence of a party to a civil action.
3. “Before a trial court may give an adverse inference jury instruction or impose other sanctions against a party for spoliation of evidence, the following factors must be considered: (1) the party's degree of control, ownership, possession or authority over the destroyed evidence; (2) the amount of prejudice suffered by the opposing party as a result of the missing or destroyed evidence and whether such prejudice was substantial; (3) the reasonableness of anticipating that the evidence would be needed for litigation; and (4) if the party controlled, owned, possessed or had authority over the evidence, the party's degree of fault in causing the destruction of the evidence. The party requesting the adverse inference jury instruction based upon spoliation of evidence has the burden of proof on each element of the four-factor spoliation test. If, however, the trial court finds that the party charged with spoliation of evidence did not control, own, possess, or have authority over the destroyed evidence, the requisite analysis ends, and no adverse inference instruction may be given or other sanction imposed.” Syllabus Point 2, Tracy v. Cottrell, 206 W.Va. 363, 524 S.E.2d 879 (1999).
4. “Rule 37 of the West Virginia Rules of Civil Procedure is designed to permit the use of sanctions against a party who refuses to comply with the discovery rules, i.e., Rules 26 through 36.” Syllabus Point 1, Shreve v. Warren Assoc., Inc., 177 W.Va. 600, 355 S.E.2d 389 (1987).
5. West Virginia recognizes spoliation of evidence as a stand-alone tort when the spoliation is the result of the negligence of a third party, and the third party had a special duty to preserve the evidence.
6. “In order to establish a prima facie case of negligence in West Virginia, it must be shown that the defendant has been guilty of some act or omission in violation of a duty owed to the plaintiff. No action for negligence will lie without a duty broken.” Syllabus Point 1, Parsley v. General Motors Acceptance Corp., 167 W.Va. 866, 280 S.E.2d 703 (1981).
7. A duty to preserve evidence for a pending or potential civil action may arise in a third party to the civil action through a contract, agreement, statute, administrative rule, voluntary assumption of duty by the third party, or other special circumstances.
8. The tort of negligent spoliation of evidence by a third party consists of the following elements: (1) the existence of a pending or potential civil action; (2) the alleged spoliator had actual knowledge of the pending or potential civil action; (3) a duty to preserve evidence arising from a contract, agreement, statute, administrative rule, voluntary assumption of duty, or other special circumstances; (4) spoliation of the evidence; (5) the spoliated evidence was vital to a party's ability to prevail in the pending or potential civil action; and (6) damages. Once the first five elements are established, there arises a rebuttable presumption that but for the fact of the spoliation of evidence, the party injured by the spoliation would have prevailed in the pending or potential litigation. The third-party spoliator must overcome the rebuttable presumption or else be liable for damages.
9. West Virginia recognizes intentional spoliation of evidence as a stand- alone tort when done by either a party to a civil action or a third party.
10. Intentional spoliation of evidence is defined as the intentional destruction, mutilation, or significant alteration of potential evidence for the purpose of defeating another person's recovery in a civil action.
11. The tort of intentional spoliation of evidence consists of the following elements: (1) a pending or potential civil action; (2) knowledge of the spoliator of the pending or potential civil action; (3) willful destruction of evidence; (4) the spoliated evidence was vital to a party's ability to prevail in the pending or potential civil action; (5) the intent of the spoliator to defeat a party's ability to prevail in the pending or potential civil action; (6) the party's inability to prevail in the civil action; and (7) damages. Once the first six elements are established, there arises a rebuttable presumption that but for the fact of the spoliation of evidence, the party injured by the spoliation would have prevailed in the pending or potential litigation. The spoliator must overcome the rebuttable presumption or else be liable for damages.
12. “In actions of tort, where . . . willful . . . conduct . . . affecting the rights of others appear[s] . . . the jury may assess exemplary, punitive, or vindictive damages; these terms being synonymous.” Syllabus Point 4, in part, Mayer v. Frobe, 40 W.Va. 246, 22 S.E. 58 (1895).
Maynard, Justice:
We are called upon to answer certified questions from the Circuit Court of
Logan County regarding the viability of independent torts for spoliation of evidence. In the
exercise of our discretion, we reformulate the certified questions as follows:
(See footnote 1)
1. Whether West Virginia recognizes spoliation
of evidence as a stand-alone tort when the spoliation is
the result of the negligence of a party to a civil action.
2. Whether West Virginia recognizes spoliation
of evidence as a stand-alone tort when the spoliation is
the result of the negligence of a third party, and the third
party had a special duty to preserve the evidence.
(See footnote 2)
3. Whether West Virginia recognizes intentional
spoliation of evidence as a stand-alone tort when done by
either a party to a civil action or a third party.
(See footnote 3)
The defendants thereafter filed a counterclaim against Patricia and Ermil
Hannah in which they alleged several causes of action, two of which are negligent and
intentional spoliation of evidence. They then filed a motion for partial summary judgment
as to liability on the spoliation claims. At a hearing on the motion, the defendants moved the
circuit court to certify two questions to this Court concerning the viability of these claims.
(See footnote 5)
The circuit court denied the defendants' motion for partial summary judgment and certified
the questions.
Initially, we must determine whether it is proper for this Court to answer the
certified questions under the instant facts. Ms. Hannah asserts that the certified questions
should not be accepted because they fail to meet the requirement set forth in Syllabus Point
5 of Bass v. Coltelli, 192 W.Va. 516, 453 S.E.2d 350 (1994),
(See footnote 6)
that the legal issues
substantially control the case. Ms. Hannah further argues that the issue of the viability of a
spoliation tort does not substantially control the sexual harassment suit because the audiotape
was not destroyed by a party to the suit. In addition, the counterclaim for spoliation affects
only one of the five plaintiffs involved in the harassment suit. Therefore, she concludes that
this Court should decline to answer the certified questions.
According to W.Va. Code § 58-5-2 (1998), in part, “[a]ny question of law,
including . . . questions arising upon the . . . sufficiency of a motion for summary judgment
where such motion is denied . . . may . . . be certified . . . to the supreme court of appeals[.]”
These certified questions come to us as the result of the circuit court's denial of the
defendants' motion for partial summary judgment. According to Syllabus Point 5 of Bass
v. Coltelli, supra:
West Virginia Code, 58-5-2 (1967),
(See footnote 7)
allows for
certification of a question arising from a denial of a
motion for summary judgment. However, such
certification will not be accepted unless there is a
sufficiently precise and undisputed factual record on
which the legal issues can be determined. Moreover,
such legal issues must substantially control the case.
(Footnote added).
We believe that it is proper for this Court to answer the certified questions
before us. While these questions do not substantially control the sexual harassment suit filed
by the five plaintiffs below, they do substantially control the viability of Mr. Heeter's
counterclaims for spoliation. Further, the undisputed facts show that evidence which is
relevant to a civil action was destroyed.
We conclude, therefore, that the certified questions
meet the requirements articulated in Syllabus Point 5 of Bass.
We are also mindful that recognizing tortious conduct as actionable serves
additional purposes beyond providing a remedy to the person injured by the tortious conduct.
While it is true that “[t]he object of tort law is to provide reasonable compensation for
losses[,]” Roberts v. Stevens Clinic Hosp., Inc., 176 W.Va. 492, 504, 345 S.E.2d 791, 803
(1986), additional foundations of tort law are morality and deterrence. See Bart S. Wilhoit,
Spoliation Of Evidence: The Viability Of Four Emerging Torts, 46 UCLA L.Rev. 631, 662
(1998) (“It is generally accepted that the three fundamentals of tort law are morality,
compensation, and deterrence.” (Footnote omitted)). Therefore, in answering the questions
before us, we will also consider the level of condemnation and deterrence that may be
required as a sufficient response to the conduct at issue. We now proceed to address the
specific questions posed in light of these guidelines.
It is generally agreed that recognizing a tort of negligent spoliation against a
third party is problematic absent some type of affirmative duty to preserve the evidence.
Under our tort law, “[i]n order to establish a prima facie case of negligence in West Virginia,
it must be shown that the defendant has been guilty of some act or omission in violation of
a duty owed to the plaintiff. No action for negligence will lie without a duty broken.”
Syllabus Point 1, Parsley v. General Motors Acceptance Corp., 167 W.Va. 866, 280 S.E.2d
703 (1981). However, “there is no general duty to preserve evidence[.]” Smith v. Atkinson,
771 So.2d 429, 433 (Ala. 2000). An additional problem arises where the destroyed evidence
is the property of the alleged third-party spoliator.
(See footnote 9)
“A property owner normally has the right
to control and dispose of his property as he sees fit. The owner of the property may
legitimately question what right a plaintiff has to direct control over such property.” Oliver
v. Stimson Lumber Co., 297 Mont. 336, 345, 993 P.2d 11, 18 (1999). As noted by one
commentator:
[I]n situations in which the evidence is owned by
the third party, individual autonomy is a heavy factor in
favor of the spoliator in negligent spoliation by a third
party. According to the individual autonomy theory, tort
liability for spoliation interferes with individual property
rights. Tort liability against a third party in negligent
spoliation would prohibit a third party from destroying or
altering evidence, which the third party owns, for a
justifiable reason such as safety concerns or a desire to
control the costs of preservation.
Wilhoit, Spoliation Of Evidence: The Viability Of Four Emerging Torts, 46 UCLA L.Rev.
at 671 (footnote omitted). See also Coleman v. Eddy Potash, Inc., 120 N.M. 645, 651, 905
P.2d 185, 191 (N.M. 1995), overruled on other grounds by Delgado v. Phelps Dodge Chino,
Inc., 131 N.M. 272, 34 P.3d 1148 (N.M. 2001), (“We hold that in the absence of [certain
enumerated circumstances] a property owner has no duty to preserve or safeguard his or her
property for the benefit of other individuals in a potential lawsuit.”); Koplin v. Rosel Well
Perforators, Inc., 241 Kan. 206, 208-209, 734 P.2d 1177, 1179 (1987) (“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.”).
Some courts, however, have recognized a cause of action against a third party
who negligently destroys evidence when the third party had a special duty to preserve the
evidence. For example, in Boyd v. Travelers Ins. Co., 166 Ill.2d 188, 209 Ill.Dec. 727, 652
N.E.2d 267 (1995), the Supreme Court of Illinois declined to create a new tort of spoliation
but found that an action for negligent spoliation could be stated under existing negligence
law. The court held:
The general rule is that there is no duty to preserve
evidence; however, a duty to preserve evidence may arise
through an agreement, a contract, a statute or another
special circumstance. Moreover, a defendant may
voluntarily assume a duty by affirmative conduct. In any
of the foregoing instances, a defendant owes a duty of
due care to preserve evidence if a reasonable person in
the defendant's position should have foreseen that the
evidence was material to a potential civil action.
Boyd, 166 Ill.2d at 195, 209 Ill.Dec. at 730-31, 652 N.E.2d at 270-71 (citations omitted).
Likewise, in Holmes v. Amerex Rent-A-Car, 710 A.2d 846 (D.C. 1998), the District of
Columbia Court of Appeals recognized a spoliation tort and applied it to third parties. The
court explained:
There is no general duty in the common law to
preserve evidence in a third-party spoliation situation.
“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.” Koplin v. Rosel Well Perforators, 241 Kan. 206,
734 P.2d 1177, 1179 (1987). For a spoliation claim to
succeed in negligence, therefore, the plaintiff must
establish the existence of such a “special relationship”
that creates a duty to preserve the evidence for use in the
future litigation.
Holmes, 710 A.2d at 849. We agree with these courts and hold that a duty to preserve
evidence for a pending or potential civil action may arise in a third party to a civil action
through a contract, agreement, statute, administrative rule, voluntary assumption of duty by
the third party, or other special circumstances.
Various elements have been included in a negligent spoliation tort. In Oliver,
297 Mont. at 348, 993 P.2d at 19, the Supreme Court of Montana articulated the following
elements:
(1) existence of a potential civil action;
(2) a legal or contractual duty to preserve evidence
relevant to that action;
(3) destruction of that evidence;
(4) significant impairment of the ability to prove the
potential civil action;
(5) a causal connection between the destruction of the
evidence and the inability to prove the lawsuit;
(6) a significant possibility of success of the potential
civil action if the evidence were available; and
(7) damages. (Citations omitted).
The Supreme Court of Alabama, in Smith v. Atkinson, 771 So.2d 429, 432-33 (Ala. 2000),
explained:
In addition to proving a duty, a breach, proximate cause,
and damage, the plaintiff in a third-party spoliation case
must also show: (1) that the defendant spoliator had
actual knowledge of pending or potential litigation; (2)
that a duty was imposed upon the defendant through a
voluntary undertaking, an agreement, or a specific
request; and (3) that the missing evidence was vital to the
plaintiff's pending or potential action. Once all three of
these elements are established, there arises a rebuttable
presumption that but for the fact of the spoliation of
evidence the plaintiff would have recovered in the
pending or potential litigation; the defendant must
overcome that rebuttable presumption or else be liable
for damages.
Accordingly, we hold that the tort of negligent spoliation of evidence by a third
party consists of the following elements: (1) the existence of a pending or potential civil
action; (2) the alleged spoliator had actual knowledge of the pending or potential civil action;
(3) a duty to preserve evidence arising from a contract, agreement, statute, administrative
rule, voluntary assumption of duty, or other special circumstances; (4) spoliation of the
evidence; (5) the spoliated evidence was vital to a party's ability to prevail in a pending or
potential civil action; and (6) damages. Once the first five elements are established, there
arises a rebuttable presumption that but for the fact of the spoliation of evidence, the party
injured by the spoliation would have prevailed in the pending or potential litigation. The
third-party spoliator must overcome the rebuttable presumption or else be liable for damages.
We emphasize that a third party must have had actual knowledge of the
pending or potential litigation. “[A] third party's constructive notice of a pending or
potential action is not sufficient to force upon the third party the duty to preserve evidence.”
Smith, 771 So.2d at 433 (citation omitted). In addition,
Not every piece of lost or destroyed evidence
should lead to a cause of action for negligent spoliation.
Where the destruction or loss of evidence defeats any
chance of the plaintiff's recovering in the underlying
action, we conclude that the plaintiff deserves recourse
for such a loss. Therefore, under a claim for negligent
spoliation, the defendant's breach must be the proximate
cause of the plaintiff's inability to file, or to win, the
underlying lawsuit.
Smith, 771 So.2d at 434. In proving the element of proximate cause, we adopt the reasoning
of the court in Smith that,
in order for a plaintiff to show proximate cause, the trier
of fact must determine that the lost or destroyed evidence
was so important to the plaintiff's claim in the underlying
action that without that evidence the claim did not
survive or would not have survived a motion for
summary judgment. . . . Metropolitan argues that a
plaintiff, in order to be able to file an action alleging
spoliation of evidence against a third party, must first file
an action pursuing the underlying cause of action and be
denied a recovery in that underlying action. We disagree.
If we use the summary-judgment standard as a guide,
there will be no need for a plaintiff to waste valuable
judicial resources by filing a futile complaint and risking
sanctions for filing frivolous litigation. The plaintiff can
rely upon either a copy of a judgment against him in an
underlying action or upon a showing that, without the
lost or destroyed evidence, a summary judgment would
have been entered for the defendant in the underlying
action.
771 So.2d at 434. Therefore, a plaintiff in a spoliation claim does not have to file an action
in which the spoliated evidence would have been vital to proving or defending his or her
case. Instead, he or she simply may show that without the spoliated evidence, a summary
judgment would have been entered on behalf of the adverse party in the underlying action.
The determination of damages in a claim for spoliation of evidence is generally considered to be a task fraught with uncertainty and speculation. In fact, a “strong counterargument to compensation [in spoliation cases] is the inherent difficulty of proving the fact of injury in a spoliation suit.” Levine, 104 W.Va.L.Rev. at 440 (footnote omitted). Courts have adopted a myriad of methods to assess damages. (See footnote 10) In addressing the problem of damages, we are guided by “the general rule in awarding damages [which] is to give compensation for pecuniary loss; that is, to put the plaintiff in the same position, so far as money can do it, as he would have been if . . . the tort [had] not [been] committed.” 5C
Michie's Jurisprudence, Damages § 18, at 63 (1998) (footnote omitted). We believe that the
approach utilized by the Alabama court in Smith would best achieve this result. There the
court explained:
under the [rebuttable presumption] approach we adopt
today, the risk of a windfall to the plaintiff has been
minimized. We decline to gauge damages on the
plaintiff's probability of success on the merits. We
conclude that without the spoliated evidence, the
plaintiff's probability of success is too tenuous a measure
to be consistently applied and that any attempt to apply
it would constitute pure speculation. Therefore, in
determining damages, we reject the use of probability of
success as a benchmark, in favor of the use of
compensatory damages that would have been awarded on
the underlying cause of action, if the defendant cannot
overcome the rebuttable presumption.
Smith, 771 So.2d at 438. Therefore, if a spoliator cannot rebut the presumption that the
injured party would have prevailed in the underlying litigation but for the spoliation, the
spoliator must compensate the party injured by the spoliation for the loss suffered as a result
of his or her failure to prevail in the underlying litigation.
We answer the third certified question in the affirmative and hold that West Virginia recognizes intentional spoliation of evidence as a stand-alone tort when done by either a party to a civil action or a third party. Our reasoning for the need to hold third parties liable for negligently spoliating evidence is also applicable here. That is, recovery under a separate tort is necessary because a third party is not subject to an adverse inference instruction or discovery sanctions. In regard to a party to a civil action, we believe that intentional spoliation of evidence is misconduct of such a serious nature, the existing remedies are not a sufficient response. (See footnote 11)
West Virginians have a fundamental constitutional right to use the State's court
system to seek justice. See W.Va.Const., Art. III, § 17. This Court has recognized that
“[b]asic to the administration of justice is the search for the truth.” Page v. Columbia
Natural Resources, Inc., 198 W.Va. 378, 386, 480 S.E.2d 817, 825 (1996). The search for
truth breaks down, however, when parties do not have the opportunity to adduce all relevant
evidence at trial.
(See footnote 12)
“[S]poliation . . . undermines the search for truth and fairness by creating
a false picture of the evidence before the trier of fact.” Cedars-Sinai Medical Center v.
Superior Court, 18 Cal.4th 1, 9, 74 Cal.Rptr.2d 248, 253, 954 P.2d 511, 516 (Cal. 1998).
Also, it “may leave the trial record incomplete, may impact the apparent relevancy of other
evidence, and may increase litigation costs as litigants scramble to 'reconstruct the spoliated
evidence or to develop other evidence, which may be less accessible, less persuasive, or
both.'” Levine, 104 W.Va. L.Rev. at 420, quoting Cedars-Sinai Medical Center v. Superior
Court, 954 P.2d 511, 515 (Cal. 1998) (footnote omitted). Therefore, “[d]estroying evidence
can destroy fairness and justice, for it increases the risk of an erroneous decision on the
merits of the underlying cause of action.” Cedars-Sinai Medical Center, 18 Cal.4th at 8, 74
Cal.Rptr.2d at 252, 954 P.2d at 515.
For these reasons, intentional spoliation of evidence has been rightly
characterized as highly improper and unjustifiable. See Coleman, 120 N.M. at 649, 905 P.2d
at 189 (“[T]he intentional destruction of potential evidence in order to disrupt or defeat
another person's right of recovery is highly improper and cannot be justified.”); Cedars-
Sinai Medical Center, 18 Cal.4th at 4, 74 Cal.Rptr.2d at 249, 954 P.2d at 512 (Intentional
spoliation of evidence “is a grave affront to the cause of justice and deserves our unqualified
condemnation.”); Wilhoit, 46 UCLA L.Rev. at 663-64 (“[T]here is a need to condemn a
party who takes advantage of the adversarial system by destroying evidence that is essential
to an adverse party's lawsuit. . . . Likewise, in order to preserve the integrity of the
adversarial system, courts must deter parties from destroying evidence that may weaken their
cases.” (Footnote omitted)). Simply put, such highly improper and unjustifiable conduct
ought to be actionable.
In defining the parameters of the tort of intentional spoliation of evidence we
look to the several states that currently recognize this tort. Intentional spoliation of evidence
is defined as “the intentional destruction, mutilation, or significant alteration of potential
evidence for the purpose of defeating another person's recovery in a civil action.” Coleman,
120 N.M. at 649, 905 P.2d at 189.
Most states that have adopted the tort have agreed
that intentional spoliation of evidence consists of the
following elements: (1) pending or probable civil
litigation, (2) knowledge of the spoliator that the
litigation is pending or probable, (3) willful destruction
of evidence, (4) intent of the spoliator to interfere with
the victim's prospective civil suit, (5) a causal
relationship between the evidence and the inability to
prove the lawsuit, and (6) damages.
Levine, 104 W.Va.L.Rev. at 422 (footnotes omitted). See, e.g., Coleman, 120 N.M. at 649,
905 P.2d at 189 (“In order to prevail on an intentional spoliation of evidence theory, a
plaintiff must allege and prove the following: (1) the existence of a potential lawsuit; (2) the
defendant's knowledge of the potential lawsuit; (3) the destruction, mutilation, or significant
alteration of potential evidence; (4) intent on part of the defendant to disrupt or defeat the
lawsuit; (5) a causal relationship between the act of spoliation and the inability to prove the
lawsuit; and (6) damages.”(Citations omitted)); Oliver v. Stimson Lumber Company, 297
Mont. at 352, 993 P.2d at 22 (“[I]ntentional spoliation of evidence consists of the following
elements: (1) the existence of a potential lawsuit; (2) the defendant's knowledge of the
potential lawsuit; (3) the intentional destruction of evidence designed to disrupt or defeat the
potential lawsuit; (4) disruption of the potential lawsuit; (5) a causal relationship between
the act of spoliation and the inability to prove the lawsuit; and (6) damages.”(Citation
omitted)); Smith v. Howard Johnson Company, Inc., 67 Ohio St.3d at 29, 615 N.E.2d at
1038 (“[T]he elements of a claim for interference with or destruction of evidence are (1)
pending or probable litigation involving the plaintiff, (2) knowledge on the part of defendant
that litigation exists or is probable, (3) willful destruction of evidence by defendant designed
to disrupt the plaintiff's case, (4) disruption of the plaintiff's case, and (5) damages
proximately caused by the defendant's acts[.]”).
Therefore, we hold that the tort of intentional spoliation of evidence consists
of the following elements: (1) a pending or potential civil action; (2) knowledge of the
spoliator of the pending or potential civil action; (3) willful destruction of evidence; (4) the
spoliated evidence was vital to a party's ability to prevail in the pending or potential civil
action; (5) the intent of the spoliator to defeat a party's ability to prevail in the pending or
potential civil action; (6) the party's inability to prevail in the civil action; and (7) damages.
Once the first six elements are established, there arises a rebuttable presumption that but for
the fact of the spoliation of evidence, the party injured by the spoliation would have prevailed
in the pending or potential litigation. The spoliator must overcome the rebuttable
presumption or else be liable for damages.
We caution that the party injured by spoliation must show more than the fact
that potential evidence was intentionally destroyed. The gravamen of the tort of intentional
spoliation is the intent to defeat a person's ability to prevail in a civil action. Therefore, it
must be shown that the evidence was destroyed with the specific intent to defeat a pending
or potential lawsuit. “The intent with which tort liability is concerned. . . . is an intent to
bring about a result which will invade the interests of another in a way that the law forbids.”
Prosser & Keeton on Torts, § 8 at 36 (5th ed.1984). See also Torres v. El Paso Elec. Co.,
127 N.M. 729, 987 P.2d 386, 405 (N.M. 1999) (“[W]e believe that the tort recognized in
Coleman [v. Eddy Potash, Inc., supra] seeks to remedy acts taken with the sole intent to
maliciously defeat or disrupt a lawsuit.”).
The rule for the determination of compensatory damages in intentional
spoliation actions shall be the same as that set forth above for use in actions where evidence
was negligently spoliated by a third party. Finally, in addition to compensatory damages,
punitive damages may be awarded in cases where evidence was intentionally spoliated. This
Court has held:
In actions of tort, where . . . willful . . . conduct .
. . affecting the rights of others appear, or where
legislative enactment authorizes it, the jury may assess
exemplary, punitive, or vindictive damages; these terms
being synonymous.
Syllabus Point 4, in part, Mayer v. Frobe, 40 W.Va. 246, 22 S.E. 58 (1895). This Court has
recognized that punitive damage awards achieve a number of important objectives. “Among
the primary ones are: (1) to punish the defendant; (2) to deter others from pursuing a similar
course; and, (3) to provide additional compensation for the egregious conduct to which the
plaintiff has been subjected.” Harless v. First Nat. Bank In Fairmont, 169 W.Va. 673, 691,
289 S.E.2d 692, 702 (1982). These objectives certainly may be applicable when a person
intentionally destroys evidence for the purpose of defeating a lawsuit.
For the reasons set forth above, we answer the certified questions as follows:
1. Whether West Virginia recognizes spoliation
of evidence as a stand-alone tort when the spoliation is
the result of the negligence of a party to a civil action.
ANSWER: No.
2. Whether West Virginia recognizes spoliation
of evidence as a stand-alone tort when the spoliation is
the result of the negligence of a third party, and the third
party had a special duty to preserve the evidence.
ANSWER: Yes.
3. Whether West Virginia recognizes intentional
spoliation of evidence as a stand-alone tort when done by
either a party to a civil action or a third party.
ANSWER: Yes.
Certified Questions Answered.
When
a certified question is not framed so that this Court is able to fully address
the law which is involved in the question, then this Court retains the power
to reformulate questions certified to it under both the Uniform Certification
of Questions of Law Act found in W.Va. Code, 51-1A-1, et seq. and W.Va.
Code, 58-5-2 [1967], the statute relating to certified questions from a
circuit court of this State to this Court.
Footnote: 2