Written by Bryan Snyder, Esq.
Edited by Chip Kalbaugh, Esq.
Recently, the Supreme Court of Virginia was provided the opportunity to reconsider its position on whether or not it recognizes an independent claim for spoliation of evidence. Spoliation of evidence is typically defined as the intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence relevant to a legal proceeding.
Initially, the issue arose from a workers’ compensation case when Steve E. Johnson, an employee of Southern States Cooperative Inc. was badly burned by a space heater while working in a warehouse in Henrico County. His injuries occurred when his clothes were ignited as he attempted to start a propane heater on a cold February morning in 2013. Johnson pursued a workers’ compensation claim for both medical damages and lost wages. He claimed that the space heater was a product normally sold by Southern States Cooperative.
In addition to his workers’ compensation claim, Johnson also intended to seek recovery on a possible product defect claim, and requested that Southern States preserve the propane heater as evidence. Later, when Johnson’s lawyers and experts requested to examine the heater, they learned that Southern States had thrown it away. In response, Johnson’s lawyers filed a $7.5 million lawsuit for spoliation of evidence arguing that Southern States “negligently interfered with Johnson’s right to pursue a products liability suit.” The elements of a claim for spoliation of evidence are: (1) pending or probable litigation involving the plaintiff; (2) knowledge on part of the defendant that litigation exists or is probable; (3) willful destruction of evidence by the defendant designed to disrupt plaintiff’s case; (4) disruption of plaintiff’s case; and (5) damages proximately caused by the defendant’s acts.
Southern States quickly moved to dismiss Johnson’s suit arguing that Virginia does not recognize an independent tort of intentional or negligent interference with a prospective civil action by spoliation of evidence. In Austin v. Consolidation Coal Co., 256 Va. 78 (1998), the United States District Court for the Southern District of West Virginia certified a question of law to the Supreme Court of Virginia on whether a party had a cause of action for intentional or negligent interference with a prospective civil action by spoliation of evidence as an independent tort. The employee was injured when a hose he was using exploded. The employer refused to reveal the identity of the manufacturer and the distributor and generally refused to cooperate. The employee filed a products liability action against the manufacturer and distributor. Allegedly, the employer destroyed the hose in violation of a court order. The employee then filed suit against the employer for spoliation. The Supreme Court of Virginia held that there was no cause of action for the tort in Virginia based on the facts. First, there was no court order to preserve the hose. Second, and more importantly, the employer had no duty to preserve evidence to be used against a third party. There were no state or federal safety rules which created a duty. The employer-employee relationship did not create a duty. The Virginia Workers’ Compensation Act did not create a duty to preserve property in an action against a third party. Since there was no order, a duty could not be based on obligations to a court either.
Johnson’s attorneys argued that the case was more akin to an ordinary negligence case and that Southern States had voluntarily assumed the duty to preserve the heater when it gave its “formal acquiescence” to a motion to inspect by Johnson. Johnson’s argument pointed to other cases where the parties were held to have assumed duties through affirmative assurances similar to Southern States lack of an objection to the motion to inspect. After a 2014 hearing, Henrico County Circuit Judge Richard S. Wallerstein, Jr. granted Southern States’ motion and dismissed the case.
Johnson urged the Supreme Court of Virginia to review the case, but the Court declined and, as it currently stands, Virginia does not recognize an independent cause of action for spoliation of evidence.