Opinion
No. CV 10 6005845 S
May 11, 2011
MEMORANDUM OF DECISION RE MOTION TO STRIKE
Preliminary Statement
This premises liability action arises out of a fall by the plaintiff at property owned by the defendant. The plaintiff claims to have fallen as a result of, among other things, the placement of a rug outside the front door of the defendant's residence. By way of amended complaint, the plaintiff added a cause of action purporting to set forth a claim of intentional spoliation of evidence as a result of the defendant's discarding the rug at issue. For the reasons set forth below, the motion to strike is granted.
Standard of Review
The role of the trial court in ruling on a motion to strike is to test the legal sufficiency of a pleading. RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384 (1994). The court must "examine the [complaint] construed in favor of the [plaintiff] to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [w]hat is reasonably implied [in an allegation] need not be expressly alleged." (Citation omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626 (2000).
For purposes of the motion to strike, the moving party admits all facts well pleaded. RK Constructors, Inc. supra, at 383 n. 2. The same is not so of legal conclusions and a motion to strike may be granted if the complaint alleges "mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215 (1992).
Discussion CT Page 11301
The defendant seeks to strike count two of the amended complaint on the grounds that it does not include sufficient allegations to state a claim for intentional spoliation of evidence. In 2006, our Supreme Court recognized, for the first time, a cause of action for intentional spoliation of evidence. Rizzuto v. Davidson Ladders, Inc., 280 Conn. 255 (2006). In so doing, it held that in order to sustain such a cause of action, the plaintiff must establish the following essential elements: (1) the defendant's knowledge of a pending or impending civil action involving the plaintiff; (2) the defendant's destruction of evidence; (3) in bad faith, that is, with intent to deprive the plaintiff of his cause of action; (4) the plaintiffs inability to establish a prima facie case without the spoliated evidence; and (5) damages. Id. at 244-45.
The plaintiff confirmed at oral argument that she does not advance a theory of negligent spoliation, as was argued in the alternative by the defendant.
The Court found that the cause of action was appropriate when a first-party defendant destroys evidence intentionally with the purpose and effect of precluding a plaintiff from fulfilling his burden of production in a pending or impending case. Id. at 235. As the Court noted, an adverse impact on a plaintiff's case is "a critical element of the intentional spoliation tort." Id. at 230, citing, M.M. Koesel T.L. Turnbull, Spoliation of Evidence: Sanctions and Remedies for Destruction of Evidence in Civil Litigation (2d Ed. 2006), p. 93. "Accordingly, most states that recognize the tort of intentional spoliation of evidence require a plaintiff to establish, inter alia, that "the spoliated evidence was vital to a party's ability to prevail in [a] pending or potential civil action." Id. at 230, citing, Hannah v. Heeter, 213 W. Va. 704, 717 (2003). Additionally, the Supreme Court discussed and clarified "the plaintiff's burden of proof with respect to causation and damages. To establish proximate causation, the plaintiff must prove that the defendants' intentional, bad faith destruction of evidence rendered the plaintiff unable to establish a prima facie case in the underlying litigation." Id. at 246, citing, Smith v. Atkinson, 771 So.2d 429, 434 (Ala. 2000) ("in order for a plaintiff to show proximate cause, the trier of fact must determine that the lost or destroyed evidence was so important to the plaintiff's claim in the underlying action that without that evidence the claim did not survive or would not have survived a motion for summary judgment").
In the present case, the defendant argues that the plaintiff has failed to adequately allege that the defendant discarded the rug with the knowledge of the plaintiff's pending or impending claim. Without this nexus in terms of the timeframe, the defendant argues the element of "bad faith" cannot be inferred from the pleadings. The amended complaint alleges at paragraph 16: "Upon information and belief, Defendant had knowledge of Plaintiff's claim that a rug outside the front door of his home caused Plaintiff's fall." The complaint then sets forth several paragraphs which allege that photographs were taken of the rug and that following the taking of the photographs, the rug was discarded. While it is perhaps an inartful pleading, the reasonable inference that can and must be drawn for purposes of a motion to strike, Lombard v. Edward J. Peters, Jr., P.C., supra, is that the photographs were taken as a result of the plaintiff's claim and that therefore, the destruction of the rug following the taking of the photographs occurred at a time that the defendant was aware of the plaintiff's claim.
While a "claim" might not, by necessity, include an impending civil action, similar allegations have been found adequate to state a spoliation of evidence cause of action. See, Hollingsworth v. Nestle Purina, judicial district of Willimantic, Dkt. No. WWM CV09-6000817S (Jul. 21, 2010, Riley J.) [ 50 Conn. L. Rptr. 327] ("plaintiff has sufficiently pleaded the first element of the cause of action because she has alleged that she informed Purina of her "claim" and, therefore, it knew "that the plaintiff had a pending or impending civil action against it"); Diana v. NetJets Services, Inc., 50 Conn.Sup. 655, 676 [ 44 Conn. L. Rptr. 696] (2007) ("knowledge of a pending or impending civil action," includes "knowledge that the [p]laintiff was injured . . . and that a civil action might result from the incident").
The defendant next argues that the spoliation of evidence count fails to allege that the destruction of the rug will render her unable to meet her burden of production or establish a prime facie case. On this issue, the amended complaint avers at paragraph 22: "As a result of Defendant's intentional spoliation of evidence, Plaintiff's case has been damaged to the point where no expert can inspect the rug which caused the plaintiff's injuries." There is no further allegations as to the impact of the rug's loss on the success of the plaintiff's case.
In Rizzuto, the allegations included that "[t]he plaintiff's case has been damaged to the point where no expert can conclusively establish the mechanism of the defect which caused the plaintiff's injuries"; and (3) "as a result of the spoliation, the plaintiff may not be able to prove his case, and his interest in the [product liability cause] of action . . . will forever be lost." These allegations were held sufficient to establish the spoliation cause of action.
Here, the plaintiff only avers that the rug is unavailable for inspection. This is not a product liability claim for which such an inspection might be manifestly necessary to sustain the underlying cause of action. The complaint is silent as to further impact on the underlying cause of action. Neither of these circumstances existed in Rizzuto. This court therefore concludes that allegations are inadequate to satisfy the fourth element of a spoliation claim. The motion to strike is granted.