AFTER THE FIRE`S OUT: SPOLATION OF EVIDENCE AND THE LINE FIREFIGHTER
BY PETER A. LYNCH
Frequently in suppressing and overhauling a fire, a firefighter faces the dilemma of what to do with evidence. Should he save it? Should he move it? Where should it be stored? Can it be taken apart? Should anyone be called before evidence is disturbed? Should the evidence be discarded? Focusing on how these issues are handled is of concern because of the dangers presented by the developing tort of spoliation of evidence, which is civil liability for damaging or destroying physical evidence at a fire scene.
Firefighters are normally immune from a spoliation claim when evidence is impacted by extinguishing a fire. They also have civil immunity if the fire department assigns them to investigate the fire`s cause and origin. However, if the firefighter has been informed of a potential civil action and evidence is negligently destroyed thereafter, potential liability for spoliation of evidence may arise. Further, damaging evidence after a firefighter`s duties have been completed can constitute spoliation of evidence. That may subject a normally immune firefighter to civil tort liability.
OVERVIEW OF SPOLIATION
In California, the recognized elements of negligent spoliation of evidence are the following:
Plaintiff possessed a potential defense to a claim for damages against a defendant.
Defendant knew or reasonably should have known of this claim for damages by plaintiff.
Defendant knew or reasonably should have known of the existence of the physical evidence and knew or reasonably should have known that it might constitute evidence in pending litigation involving plaintiff.
Defendant knew or reasonably should have known that if he did not act with reasonable care to preserve the physical evidence, the potential evidence could be destroyed, damaged, lost, or concealed.
Defendant failed to act with reasonable care.
Defendant`s failure to act with reasonable care caused the destruction of, damage to, or loss or concealment of such evidence.
As a result, plaintiff sustained damage, namely plaintiff`s opportunity to prove its claim was interfered with substantially.1
Consider the following scenario: A firefighter or fire investigator tells others he will preserve a piece of evidence after a fire has been suppressed. He then fails to save the evidence or damages it. He is then accused of mishandling evidence. He may be subject to liability for negligent or intentional spoliation of evidence.
Claims of governmental immunity for firefighters are covered by discretionary immunity. For example, under California Government Code Section 820.2, that immunity may not apply where the firefighter has fulfilled all his duties and is performing an intentional or negligent act outside the scope of his duties. This assumes his official duties are completed and he later damages evidence at the scene. [See, Clemente v. State (1985) 40 Cal.3d 202 (affirmed applying law of the case).]
In Clemente, a police officer`s acts in the course of an investigation of a traffic accident were held to be outside the scope of his discretionary immunities, and he was subject to civil liability. The Appellate Court opinion affirmed by the California Supreme Court stated as follows:
“What is involved under these allegations is not the discretion of Officer Lexom in deciding whether to investigate a traffic accident, pursuant to the discretionary authority vested in him by Vehicle Code Section 2412 … but instead only his negligence in his conduct of the discretionary investigation. Neither the discretionary immunity of Government Code Section 820.2 nor the more specific discretionary immunity of failure to enforce a statute … immunizes the officer and the state from legal consequences of this negligence …. Government, through its agents, is held to the same standard of care that law requires of private citizens in the performance of duties imposed or assumed.” [Clemente v. State (1980) 101 Cal.App.3d 374, 379, affirmed, Clemente v. State (1985) 40 Cal.3d 202.]
Arguably, this same analysis from Clemente could apply to firefighters. That may defeat the standard government immunity of a firefighter. Because firefighters face potential liability for intentional or negligent spoliation of evidence, they need to understand these torts to avoid liability for destruction of evidence at a fire scene. I believe a claim of governmental immunity may not protect a firefighter if the destructive conduct happened after his normal duties had been concluded. That result follows because his acts may be outside the scope of his employment.
SPOLIATION DEFINED
Spoliation of evidence is the destruction of or failure to save evidence that could have been used by another in future litigation. Currently, remedies for spoliation of evidence include criminal penalties, adverse inferences, sanctions, and spoliation tort liability. [Willard v. Caterpillar, Inc. (1995) 40 Cal.App.4th 892, 907.]
PENALTIES FOR SPOLIATION
California places criminal liability on parties who willfully destroy or conceal any book, paper, or other matter to be used as evidence at trial–California Penal Code Section 135; People v. Fields (1980) 105 Cal.App.3d 341. California`s Evidence Code and several California cases hold that when a party fails to produce evidence that would normally have been produced, the trier of fact may infer that the evidence not produced was adverse to the party. [See, California Evidence Code Section 413 and 913; Breland v. Traylor Engineering & Manufacturing Company (1942) 52 Cal.App.2d 415, 426.]
California courts can sanction parties if the court determines a party has spoliated evidence. The court will first impose monetary sanctions. For more serious violations, a court may impose evidence sanctions and terminating sanctions. These remedies generally are applied in civil actions. [Willard v. Caterpillar, Inc. (1995) 40 Cal.App.4th 892, 907.]
CIVIL CASE LAW ON SPOLIATION
In Puritan Insurance Co. v. Superior Court (1985) 171 Cal.App.3d 877, a defense expert misplaced a drive shaft that would have been the central focus of the plaintiff`s personal injury case. The court directed the defendant to produce the drive shaft. When the defendant did not comply, the court sanctioned the defendant by refusing to allow testimony from the defendant`s expert related to his examination of the missing drive shaft.
In Kuhns v. State of California (1992) 8 Cal.App.4th 982, the defendant in a personal injury case refused to turn over documents relevant to highway design. The plaintiff had been severely injured when his vehicle turned over on the highway. In sanctioning the defendant, the court ordered the defendant to admit that the highway was dangerous and the defendant had knowledge of the danger. The court also went on to preclude a design immunity defense.
California was the first jurisdiction to officially recognize the tort of spoliation of evidence. In Smith v. Superior Court (1984) 151 Cal.App.3d 491, the defendant, Smith, was blinded when a wheel fell off a passing van and hit the windshield of her car. The van was towed to a Ford dealer that had recently installed customized wheels on it. The dealer promised Smith that it would preserve certain parts of the van so that Smith`s experts could test them. The dealer subsequently lost or destroyed the parts Smith had requested be saved. This made it impossible for Smith`s experts to pinpoint the exact cause of the wheel`s coming off the van. Smith sued the dealer, claiming intentional spoliation of evidence. The court opined that the dealer`s loss of parts it had promised to preserve severely prejudiced Smith`s probability of recovering damages for her injuries. The trial court sustained the defendant`s demurrer. The appellate court reversed, holding that Smith had stated a cause of action for intentional spoliation of evidence.
Soon after Smith, the California courts expanded the tort of spoliation of evidence to include negligent behavior. In Velascov. Commercial Bldg. & Maintenance Co. (1985) 169 Cal.App.3d 874, plaintiffs were injured by an exploding bottle. They brought the pieces of the bottle to an attorney. The attorney placed the bottle pieces in a paper bag and left the bag on his desk overnight. The attorney`s maintenance company accidentally mistook the bag for trash and disposed of the bag while cleaning the attorney`s office. The court held that plaintiffs could maintain a cause of action for negligent spoliation of evidence needed in pending litigation. Id. at 877. Further, the court made it clear that a cause of action for spoliation exists whether or not the spoliator had any prior connection to the spoliation victim.
One element in Smith and Velasco was that the party suing under a spoliation theory asked the party who spoliated the evidence to preserve the evidence. When a party is not asked to preserve evidence, a claim for spoliation of evidence may not lie. In Reid v. State Farm Mutual Auto Insurance Co. (1985) 173 Cal.App.3d 557, Reid was involved in a one-car accident. Later, insurance investigators determined that the accident was due to inattentiveness on Reid`s part. About one month after the accident, the insurance company informed Reid that it had sold the damaged car to a wrecking yard. The car was cut up and sold for parts about one month later. During this period, neither Reid nor his attorneys communicated their belief to the insurance company that the car may have been defective. They did not ask the insurance company to preserve the car. Reid did not attempt to find out where the car was until more than a year after the accident had occurred. Reid filed suit against the insurance company, claiming that it had destroyed the car, breaching the covenant of good faith and fair dealing.
The Court of Appeals rejected Reid`s claim. It noted that the insurance company had no duty to preserve the car for Reid since the car was not considered a possible cause of the accident when it was sent to the wrecking yard. Further, Reid never requested that the car be saved. Quoting Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434, 435, the court noted, ” `the most important of these considerations in establishing duty is foreseeability. As a general principal, a defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.` ” [Reid at 575. See also Fern Durham v. Condor Insurance Company (1997) 57 Cal.App.4th 24.]
In Maria G. Gomez v. James Acquistance (1996) 50 Cal.App.4th 740, Jose Luis Gomez choked to death at work when his clothing became tangled in a powered post hole digger. A few days later, his employer destroyed the post hole digger. Jose`s widow sued for negligent and intentional spoliation of evidence, alleging that destruction of the post hole digger prevented her from recovering damages in a third-party action against the manufacturer. The trial court granted the employer`s motion of summary judgment, finding no spoliation of evidence and holding California`s workers` compensation scheme barred the action against the employer. The Court of Appeals reversed. The employer admitted it intentionally ordered the post hole digger destroyed. However, the employer argued that the destruction was to protect other employees from getting injured while using that piece of equipment. The court held the widow`s intentional spoliation of evidence cause of action was adequate because it alleged the defendant destroyed an object that might constitute evidence in a lawsuit with the purpose of harming the lawsuit or when harm to the lawsuit is substantially certain to follow. The court also rejected the exclusive remedy rule of the workers` compensation scheme. The court held destruction of the evidence fell outside of the exclusive remedy because the damage was not an injury within the meaning of the workers` compensation statutes. Moreover, the employee`s widow`s cause of action for negligent spoliation accrued at the earliest, when the post hole digger was destroyed. At that time, the former employee was no longer employed and no longer subject to provisions of the Labor Code.
The court then noted a strong argument in favor of the tort of spoliation of evidence. The court stated the widow argued that spoliation is not a normal incident of employment because the average worker has no reason to expect his employer will destroy equipment or other evidence of the cause of an industrial injury. California has a fundamental public policy to protect the integrity of civil litigation by encouraging the preservation and disclosure of evidence. While occasional injuries from defective work equipment may be an expected incident of employment, workers should not be expected to anticipate the almost immediate destruction of such equipment after an industrial accident. The court would not assume that most employers routinely destroy equipment or other relevant objects after industrial accidents. It suggested employers could protect themselves against liability for spoliation by preserving such objects, at least until they determine whether the affected employee intends to pursue a third party action. Consequently, the Court of Appeals reversed the summary judgment earlier granted to the employer.
STATUTE OF LIMITATIONS
The statute of limitations for spoliation claims in California is two years. The court in Augusta v. United Services Automobile Association (1993) 13 Cal.App.4th 4, held that the two-year statute of limitations outlined in California Code of Civil Procedure Section 339 (1) (Obligation where liability is not found in a written instrument) applies to a cause of action for spoliation of evidence. Third parties may sue for negligent spoliation of evidence if they can show a special relationship between themselves and the party destroying the evidence. [DeVera v. Long Beach Transp. Co. (1986) 180 Cal.App.3d 782, 795.]
OTHER JURISDICTIONS
A brief noninclusive listing of other jurisdictions` discussion of the issue follows: Bondu v. Gurvich (Fla.Dist.Ct.App.1984) 473 So.2d 1307; Hazen v. Municipality of Anchorage (Alaska 1986) 718 P.2d 456; La Raia v. Superior Court (1986) 150 Ariz.118, 722 P.2d 286; Gardner v. Blackston (1988) 185GA.App.754, 365 S.E.2d 545; Murray v. Farmers Ins. Co. (1990) 118 Idaho 224, 796 P.2d 101; Rodgers v. St. Mary`s Hosp. of Decatur (1992) 149 Ill.2d 302, 597 N.E.2d 616, 620; Foster v. Lawrence Memorial Hosp. (D.Kan.1992) 809 F.Supp.831, 838. Ohio and New Jersey recognize a tort of “fraudulent destruction of evidence.” See Smith v. Howard Johnson Co., Inc. (1993) 67 Ohio St.3d 28; Hirsch v. General Motors Corp. (1993) 266 N.J.Super.22, 628 A.2d 1108; Rodriguez v. Webb (N.H. 1966) 680 A.2d 604.
PRACTICE POINTERS
Protecting life and property are goals of the fire service. Fires have to be put out, which requires physical items at the scene to be altered or destroyed. This article is directed to firefighters who are at the scene after the fire has been extinguished and overhaul has been completed. It can include fire investigators of a public agency after the fire has been determined to be accidental.
Once you understand the tort of spoliation of evidence, you can apply it to avoid such claims against you. Even though a firefighter is generally immune from spoliating evidence, it may hinder the criminal arson prosecution by giving a criminal defense attorney an argument to suggest the prosecutor`s case is not trustworthy because the evidence was mishandled. Does the O.J. Simpson rush-the-judgment defense come to mind?
The physical remains of an item that is the suspected cause of an arson fire should be kept for later use at trial. This might include evidence of accelerants, matches, or other devices used to set the fire.
Where physical evidence is to be removed from the scene of a fire for further examination by an expert, first photograph the physical evidence in place before it is disturbed; again while it is being removed; and, finally, after its removal. Prepare a detailed log indicating the date, time, and direction of each photograph, as well as the identity of the photographer. This information may be critical in determining the chain of custody of the physical evidence and in demonstrating that its removal did not disturb or alter the evidence in any significant way.
The physical evidence may have been seriously damaged in the fire. Take great care to ensure that all pieces of the item suspected of causing the accident are retained. An important component later found missing may result in a failure in proof and give rise to other plausible arguments as to negligent causation of the fire.
Do not limit your preservation of physical evidence to the suspected cause of the fire. Photograph and retain if possible also other objects located in the same general area that could have caused the fire, such as appliances, electrical line cords, wall outlets, and other potential sources of ignition. Do not discard such items simply because they have been ruled out as a potential cause of the arson fire. It is important that they be properly retained to corroborate the accuracy of the cause and origin conclusion and to document the thoroughness of the examination.
It is not unusual to find that a particular piece of equipment suspected of causing the fire has almost been totally destroyed by the arson fire itself. If this is the case, it is important for you to check to see whether the premises contain additional identical items. In such circumstances, retain these items to allow comparisons between the severely damaged evidence and its twin.
If you have taken an item of physical evidence into custody yourself, always alert all known parties in writing that you have taken the evidence and stored it and that you will make it available for a nondestructive, visual inspection between certain fixed dates. Say in your letter that your scientific expert will then propose a method for testing and analysis that can be circulated for comment and approval among other experts before any destructive analysis or testing is performed.
Sending such a letter should prevent claims that you have destroyed essential evidence before the parties have had a proper chance to inspect and analyze it.
CONCLUSION
Justice requires that evidence be handled properly. The results of criminal and civil cases are altered when evidence is mishandled or destroyed. A trial is a search for the truth, not a fanciful recreation of one party`s theory of how a fire progressed. Juries decide cases based on the evidence presented–not speculation. If evidence is altered, or destroyed, the jury`s decision is necessarily detrimentally impacted.
Firefighters are sworn to uphold federal, state, and local laws. That includes proper handling of evidence. Our justice system depends on the proper preservation of evidence so that juries can reach correct results. n
Endnote
1. See BAJI No. 7.96. BAJI No. 7.97 defines the elements of intentional spoliation of evidence.
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(Top left) Arson investigators are using heavy equipment to retrieve an electrical outlet box from a fire scene in Utah. The electrical outlet box was later placed under a chain of custody and is in storage now. How do you predict a jury will react to that evidence? (Top right) Dropping physical evidence on the ground. (Bottom left and bottom right) Collecting an electrical outlet from the dropped material. (Photos by Ronald A. Campbell, fire investigator.)
PETER A. LYNCH is a senior member of the national law firm of Cozen and O`Connor, P.C. in its San Diego regional office. The major emphasis of his practice is the representation of individuals, companies, and insurers that arise from fire losses to include personal injury, subrogation, coverage, and defense matters. He has written and published more than 20 articles, has lectured extensively on fire litigation topics, and has been retained as an expert witness. He is the legal advisor to the San Diego County-Wide Fire and Arson Task Force.
