When evidence that is necessary to successfully litigating your claim is destroyed, some states recognize a tort for destroying that evidence. Spoliation is defined as “the failure to preserve property for another’s use as evidence in pending or future litigation.” In order to successfully bring a spoliation claim there are numerous issues of proof that must be met. In Florida, which recognizes such a cause of action, the Plaintiff is required to establish (1) the existence of a potential civil action had the evidence not been spoiled; (2) a legal or contractual duty to preserve the evidence existed which is relevant to the potential civil action; (3) destruction of the evidence; (4) significant impairment in the ability to prove the lawsuit; (5) a causal relationship between the evidence’s destruction and the inability of the plaintiff to prove the lawsuit; and (6) damages.
Spoliation, like most tort-type claims, is predicated upon the basic principle that should one party owe a duty to another, and that duty is breached causing damages, then civil liability may exist. This simple principle must be remembered in evaluating spoliation matters. If it can be established that the evidence was transferred to or held by another party with an agreement regarding its safe storage and preservation, then a claim may exist against that person or entity if the evidence is subsequently destroyed.
The notion that the spoliation of evidence could give rise to an independent tort originated in California in Smith v. Superior Court.From there it has spread to several other states, including Florida.Florida spoliation law has, however, undergone some changes over the years.
Two Separate Actions
Recently in Florida, a change in case law occurred, requiring a plaintiff to first bring the action against the manufacturer in a products liability case and lose because he did not have the necessary evidence.Then, the plaintiff may bring a spoliation of evidence claim against the person who was holding the evidence. The need for two trials makes bringing a spoliation claim more burdensome, but it remains a viable claim nonetheless.
Duty to Preserve
Traditionally, a duty to preserve evidence only arises when there is a contract, a statutory duty, or when a written discovery request has been served on the party holding the evidence regarding that piece of evidence. There has, however, been discussion in dicta by Florida courts regarding a possible implied duty to preserve evidence. This has not been ruled on explicitly by Florida courts, but the concurrence from Royal regarding the Hagopian case noted that the duty likely arose when the store preserved the evidence, and that agreements to preserve can be expressed or implied. This concurrence also went on to note that one who has no duty, but voluntarily undertakes such a duty can be liable for negligence. It seems that some Florida courts are open to expanding the traditional concept of duty for use in spoliation cases.
There have been other mentions of expanded duty for the tort of spoliation. For example, Miller v. Allstate Ins. stated that, “other cases have expressly or implicitly recognized the existence of a tort cause of action for destruction of evidence where all the traditional tort elements were present.” Similarly, a Kansas court, Koplin v. Rosel Well Perforators, Inc., stated that, “there should not be a recognition of a spoliation tort unless there is an independent tort, contract, agreement, voluntary assumption of duty, or special relationship of the parties.”The court in American Hospitality Management Company of Minnesota v. Hettinger noted that there was a duty in Hagopian to preserve the evidence, “even without a contractual, statutory, or administrative duty.” Notably, however, the Florida courts have not specifically accepted an implied duty for spoliation, but it remains a possibility.
When crucial evidence has been destroyed, the spoliation tort must be considered as a possible option for relief. To do so, it is crucial to look at the relationship and communications between the injured party and the party that destroyed the evidence. If there was a voluntary undertaking of a duty to preserve the evidence, the party who destroyed it may be liable for the value of the product liability action lost as a result of the spoliation.
 Russ M. Herman & Steve Herman, Understanding Spoliation of Evidence, Trial; Experts and Evidence (Mar. 2001).
 Royal & Sunalliance v. Lauderdale Marine Center, 877 So. 2d 843, 845 (Fla. 4th DCA 2004).
 198 Cal. Rptr. 829 (Ct. App. 1984). However, note that this tort has since undergone changes in California and may no longer exist there. SeeTemple Cmty. Hosp. v. Super. Ct. of Los Angeles, 976 P. 2d 223 (Cal. 1999).
 See generally e.g., St. Mary’s Hosp., Inc. v. Brinson, 685 So. 2d 33 (Fla. Dist. Ct. App. 1990).
 See Lincoln Ins. Co. v. Home Emergency Servs., Inc., 812 So. 2d 433, 434-435 (Fla. 3d DCA 2001) (noting that spoliation is an independent cause of action for negligence that does not arise until the underlying action is completed).
 Royal, 877 So. 2d at 845.
 Michael D. Starks, Deconstructing Damages for Destruction of Evidence: MartinoEradicates the First-party Tort of Spoliation of Evidence, The Florida Bar Journal (July/Aug. 2006).
 Royal, 877 So. 2d at 847.
 573 So. 2d 24 (Fla. 3d DCA 1990).
 241 Kan. 206 (1987).
 904 So. 2d 547 (Fla. 4th DCA 2005).
 Starks, supra n. 8 at 41.