Disposed of product leads to multi-million dollar claim.
Investigators, adjusters, and lawyers alike have become all too familiar with the term “spoliation of the evidence.” In some states it has been recognized as an independent cause of action and in many others, it is the basis of civil sanctions in the form of fines, adverse inference jury instructions, even summary judgment.
Whether a party can assert a cause of action for spoliation of the evidence or seek sanctions against another will vary among states. As a general principle, however, there can be no remedy for spoliation without first establishing that the party disposing or destroying evidence had a duty or obligation to preserve it at the time it was destroyed.
Motorcycle left exposed to elements hinders investigation.
Since a duty to preserve evidence may arise when the party has notice that the evidence is relevant to future litigation, it is important that potential parties to litigation use caution when investigating, remediating or releasing a fire scene. Identify the potentially relevant evidence and take precautions to preserve it; or place the appropriate party on notice of its duty to do so.
In the context of fire claims, spoliation of the evidence at the fire scene means anything that impairs the opportunity of other interested parties to obtain the same evidentiary value from the evidence, as did any other prior investigator. NFPA 921, Guide for Fire and Explosion Investigations, § 11.3.5 (2008 ed.). Consider these acts of spoliation when faced with duty to preserve issues:
- Debris removal.
- Partial or complete scene remediation.
- Turning knobs and operating switches on equipment, appliances, or utility services.
- Removing the product from the scene or moving it from its original location.
- Performing destructive testing without the participation of interested parties.
- Failing to secure the scene or evidence from the elements and/or third parties.
- Disposing of the product, associated wiring or other potential ignition sources.
- Contamination or damage due to improper methods of collection, storage or shipment.
- Heat, sunlight or moisture degradation of stored evidence.
— Karey P. Pond
