Spoliation As Independent Tort

A recent Daily Record article entitled ““Cleanup Wasn’t Spoliation: CSA Rejects Calls For Separate Tort” (subscription) reported on the case of Goin v. Shoppers Food Warehouse Corporation in which the plaintiff argued that, following her slip-and-fall, a Shoppers employee deliberately removed the evidence which gave rise to the fall. One of the questions raised by the case is whether one can use spoliation (destruction) of evidence as a separate tort in and of itself. This case held that no such independent cause of action exists. The Court of Special Appeals similarly refused to recognize such a tort in a 1985 case, Miller v. Montgomery County (not online). Other states have dealt with the issue differently. California was the first state to explicitly recognize spoliation as an independent tort in Smith v. Superior Court 151 Cal. App. 3d 491 (1984) (not online). For more on this issue, see “Preserving Evidence of Disaster.”