Autumn 2008: Use the Dumpster at Your Own Risk

When a claim is pending think carefully before disposing of related material.

By Mark P. Santagata, Esq.

When Leandro Rizzuto went to Home Depot on December 16, 1996, he had no intention of changing Connecticut law. While shopping, Mr. Rizzuto attempted to reach an item on a high shelf. He used a ladder supplied by Home Depot. Rizzuto was injured when the ladder collapsed. He sued both Home Depot and the company that manufactured the ladder.

Home Depot and Davidson Ladders, the two defendants named in Rizzuto’s suit, were repeatedly requested to preserve the ladder so that his experts could identify the defects that caused the collapse. Instead, experts for the defendants examined the ladder, and then destroyed it without giving the plaintiff an opportunity to inspect it. Without access to a prime piece of evidence, Rizzuto’s case was severely compromised.

Rizzuto’s attorneys responded to the destruction of the ladder by filing a claim for intentional spoliation of evidence. This type of claim originated in California in 1986, but, before the Rizzuto case, was not a recognized cause of action in Connecticut. Rizzuto alleged that denying him access to the ladder had unfairly deprived him of his ability to prove his case. Mr. Rizzuto’s suit ultimately reached the Connecticut Supreme Court, which, in 2006, definitively established intentional spoliation of evidence as a viable tort claim in Connecticut.

In its decision, the Supreme Court defined the actions that constitute spoliation of evidence. The defendant must know of a pending or impending civil action involving the plaintiff. Having that knowledge, the defendant must destroy the evidence with the intent to deprive the plaintiff of her cause of action. The plaintiff must be unable to establish her case without the destroyed evidence, and must suffer damages as a result. Destruction can include mutilation or significant alteration.

Recently, the Connecticut Superior Court expanded this concept to include claims against third parties. Parties that were not involved in the events that injured the plaintiff, but that have a special relationship or duty to preserve evidence for the party that caused the injury, can be held liable if they destroy evidence in violation of the standards described by the Supreme Court.

Since Rizzuto, the theory of spoliation of evidence has been used in a variety of circumstances. The destroyed or altered evidence has included information stored on computers, records and reports, surgical instruments, computer equipment, allegedly contaminated water coolers, and potholes. These attempts to impose liability on parties that modify evidence have not always been successful, but the variety of items described in spoliation cases highlights the need for parties at risk of liability to take an extremely broad view of what might constitute evidence that needs to be preserved.