RIZZUTO v. DAVIDSON LADDERS, INC., 280 Conn. 225 (2006)

905 A.2d 1165

No. (SC 17310).Supreme Court of Connecticut

Sullivan, C. J., and Borden, Norcott, Palmer and Vertefeuille, Js.[*]

Syllabus
The plaintiff sought to recover damages for personal injuries sustained while he was shopping at a store owned by the defendant, H Co., when he climbed a ladder manufactured by the named defendant and the ladder collapsed. The plaintiff filed a product liability action alleging, inter alia, that the ladder had been manufactured and designed improperly. The plaintiff also claimed intentional spoliation of evidence on the ground that the defendants had intentionally destroyed the ladder, which was critical to the plaintiffs product liability claims, and, in doing so, had impaired the plaintiffs ability to prove those claims. The trial court determined that this state does not recognize an independent cause of action for intentional spoliation of evidence and granted the defendants’ motion to strike that count of the complaint. The plaintiff then withdrew the product liability claims, and, after the trial court granted the plaintiffs motion for judgment in favor of the defendants on the spoliation claim, the plaintiff appealed. Held:

1. Contrary to H Co.’s claim, the plaintiffs complaint, which alleged that the spoliated evidence was critical to its product liability claims, sufficiently stated a claim for intentional spoliation of evidence, and the fact that the plaintiff voluntarily withdrew the product liability claims did not render the spoliation claim legally insufficient, the plaintiff having with-drawn the product liability claims to obtain a final judgment after the trial court had granted the motion to strike the spoliation claim, the destruction of the ladder having left him with no evidence to support the product liability claims.

2. This court recognized an independent tort for spoliation of evidence, the elements of which include the defendant’s knowledge of a pending or impending civil action, the defendant’s destruction of evidence with intent to deprive the plaintiff of his cause of action, the plaintiffs inability to establish a prima facie case without the spoliated evidence, and damages, and, because the plaintiffs complaint alleged that the defendants’ bad faith intentional destruction of the ladder deprived him of the evidence he needed to establish a prima facie case of product liability against the defendants, the trial court improperly granted the motion to strike the plaintiffs spoliation claim; this court determined that an independent tort for spoliation was necessary to fulfill the public policy

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goals of the tort compensation system because existing nontort remedies, many of which did not apply when the plaintiff intentionally had been deprived of evidence necessary to make a prima facie case, provided limited deterrence to spoliators and were insufficient to compensate spoliation victims and because the benefits of the tort outweighed the minimal burdens it imposed.

3. Although the trial court abused its discretion by denying, on the ground that the claim was unsupported by factual allegations, the plaintiffs request to file a second amended complaint alleging that the defendants’ intentional destruction of the ladder violated the Connecticut Unfair Trade Practices Act (§ 42-110a et seq.), the proper procedural vehicle for challenging the sufficiency of a complaint being a motion to strike rather than a motion to amend, the trial court did not abuse its discretion in denying the request to file an amended complaint on the grounds that the proposed amendment was untimely and prejudicial to the defendants because the amendment would have injected new and complex legal issues into the litigation, required additional discovery and delayed the trial.

(One justice concurring separately; one justice dissenting)Argued December 2, 2005.

Officially released October 3, 2006.

Procedural History
Action to recover damages for personal injuries sustained as a result of an allegedly defective ladder manufactured by the named defendant and sold by the defendant Home Depot USA, Inc., and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the court, Doherty, J., granted the defendants’ motion to strike the spoliation of evidence count of the plaintiffs complaint; thereafter, the court sustained the defendants’ objection to the plaintiffs request to amend the complaint and the plaintiff with-drew two counts of the complaint; subsequently, the court granted the plaintiffs motion for judgment on the stricken count of the complaint and rendered judgment thereon for the defendants, and the plaintiff appealed; thereafter, the plaintiff withdrew the action as against the named defendant. Affirmed in part; reversed in part; further proceedings.

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Michael L. Oh, with whom, on the brief, were Michael A. Stratton, Joel T. Faxon and Michael R. Denison, for the appellant (plaintiff).

John B. Farley, with whom were Bruce H. Raymond and, on the brief, N. Kane Bennett, for the appellee (defendant Home Depot USA, Inc.).

Opinion
BORDEN, J.

The dispositive issue in this appeal[1] is whether this state should recognize intentional spoliation of evidence as a cognizable independent tort. We conclude that, under the circumstances alleged in the present case, we should do so.

The record reveals the following relevant factual allegations and procedural history. On December 16, 1996, the plaintiff, Leandro Rizzuto, climbed a ladder manufactured by the named defendant, Davidson Ladders, Inc. (Davidson), [2] while shopping at a Home Depot store in Norwalk. The ladder collapsed suddenly and the plaintiff fell to the floor, incurring serious physical injuries. In August, 1997, the plaintiff filed a product liability action against Davidson and the defendant, Home Depot USA, Inc. (Home Depot), alleging, inter alia, that the ladder had been manufactured and designed improperly, and had been sold without proper warnings in violation of General Statutes § 52-572m et seq. There-after, the plaintiff asked the defendants repeatedly to preserve the ladder and to afford him an opportunity to examine the ladder. In 1998, the defendants’ expert examined the ladder and concluded that it was not defective. The defendants thereafter destroyed the ladder,

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despite the fact that the plaintiff had never had an opportunity to inspect it.

On May 8, 2001, the plaintiff amended his complaint to add a claim for intentional spoliation of evidence. Specifically, the plaintiff alleged that: (1) “[b]y destroying and/or not preserving [the] ladder, the defendants . . . intentionally spoliated evidence critical to [the plaintiffs] pending products liability action”; (2) “[t]he plaintiffs case has been damaged to the point where no expert can conclusively establish the mechanism of the defect which caused the plaintiffs 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.” The defendants moved to strike the plaintiffs intentional spoliation of evidence claim, contending that no such cause of action exists in this state. The trial court agreed with the defendants and, on March 19, 2003, granted the motion to strike.

Meanwhile, on November 25, 2002, the plaintiff requested permission to file a second amended complaint alleging that Home Depot’s “pattern in practice [of] destroy[ing] critical pieces of evidence that are the subject of litigation against it” violates the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The defendants objected, claiming that the proposed amendment was untimely and unsupported by any factual allegations. On March 19, 2003, the trial court sustained the defendants’ objection.

Thereafter, the plaintiff withdrew the product liability claims and moved for judgment in favor of the defendants on the claim of intentional spoliation of evidence. The trial court granted the plaintiffs motion and, on June 2, 2003, rendered judgment in favor of the defendants. This appeal followed.

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The plaintiff claims that the trial court improperly granted the defendants’ motion to strike his intentional spoliation of evidence claim on the ground that spoliation of evidence is not a cognizable tort, and improperly sustained the defendants’ objection to his request to file a second amended complaint. We agree with the plaintiffs first claim, but disagree with his second claim. Accordingly, we reverse in part and affirm in part the judgment of the trial court.

I
The plaintiff first claims that the trial court improperly granted the defendants’ motion to strike his intentional spoliation of evidence claim on the ground that no such cause of action exists. Home Depot responds that we need not determine whether this state recognizes the tort of intentional spoliation of evidence because the plaintiffs complaint fails to plead all of the essential elements of the tort. Alternatively, Home Depot maintains that this state does not recognize intentional spoliation of evidence as an independent cause of action. We agree with the plaintiff.

“The standard of review in an appeal challenging a trial court’s granting of a motion to strike is well established. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court’s ruling is plenary. . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.” (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006).

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A
We first address Home Depot’s claim that we need not determine whether this state recognizes the tort of intentional spoliation of evidence because, even if such a cause of action exists, the trial court properly struck the plaintiffs spoliation claim. Specifically, Home Depot contends that the destruction of the ladder did not hinder the plaintiffs ability to prevail on his product liability claims, and the plaintiffs voluntary withdrawal of his product liability claims precludes a spoliation claim as a matter of law. We reject these claims.

“Disruption of a party’s case is a critical element of the intentional spoliation tort.” M. M. Koesel T. L. Turnbull, Spoliation of Evidence: Sanctions and Remedies for Destruction of Evidence in Civil Litigation (2d Ed. 2006), p. 93; see, e.g., Coleman v. Eddy Potash, Inc., 120 N.M. 645, 649, 905 P.2d 185 (1995), overruled in part on other grounds by Delgado v. Phelps Dodge Chino, Inc., 131 N.M. 272, 34 P.3d 1148
(2001); Smith v. Howard Johnson Co., 67 Ohio St. 3d 28, 29, 615 N.E.2d 1037
(1993); Hannah v. Heeter, 213 W. Va. 704, 717, 584 S.E.2d 560 (2003). 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. . . .” Hannah v. Heeter, supra, 717.

Home Depot does not dispute that the ladder was vital to the plaintiffs ability to prevail on his claim that the ladder was manufactured defectively. Rather, Home Depot contends that the ladder was not vital to the plaintiffs claims that the ladder was designed defectively or sold without adequate warnings because these claims, Home Depot maintains, could have been proven through the use of exemplars. In support of this argument, Home Depot relies on Beers v. Bayliner Marine

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Corp., 236 Conn. 769, 778, 675 A.2d 829 (1996), wherein this court concluded that an “[adverse] inference may not be drawn with respect to a claim based upon design defect when the destruction [of evidence] would not hinder the defense.”[3] We reject this claim because whether the destruction of the ladder would have hindered the plaintiffs ability to prevail on his design defect or inadequate warnings claims is a factual question that cannot be resolved on a motion to strike. For example, the record in the present case does not reveal whether the parties knew the model of the collapsed ladder, and, if so, whether other exemplars of that model are available, and, if other exemplars are available, whether their condition is substantially similar to the condition of the spoliated ladder. It is sufficient, at this stage of the proceedings, that the plaintiffs complaint alleges that the spoliated ladder was “critical evidence” in the proof of his product liability claims. Accordingly, we conclude that the plaintiffs complaint sufficiently states a claim for intentional spoliation of evidence, assuming that this state recognizes such a cause of action.

Home Depot next claims that the trial court properly struck the plaintiffs intentional spoliation of evidence

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claim because the plaintiff voluntarily withdrew his product liability action. In support of this claim, Home Depot relies on Petrik v. Monarch Printing Corp., 150 Ill. App. 3d 248, 249, 501 N.E.2d 1312 (1986), appeal denied, 114 Ill. 2d 556, 508 N.E.2d 735 (1987), in which the plaintiff brought an action for retaliatory discharge against his former employer, Monarch Printing Corporation (Monarch). After the plaintiff lost his retaliatory discharge suit, he filed a claim against Monarch for intentional spoliation of evidence, alleging that Monarch’s intentional destruction of evidence hindered his ability to prevail on his retaliatory discharge action. Id., 249-51. The trial court concluded that intentional spoliation of evidence was not a cognizable tort and dismissed the plaintiffs spoliation claim. Id., 250-51. On appeal, the Appellate Court of Illinois determined that it need not decide whether Illinois law would recognize a spoliation tort because the plaintiff had failed to establish “a nexus between the failure of his [underlying] suit and the destruction” of evidence. Id., 262. Specifically, the court noted in Petrik that the plaintiff essentially had abandoned his underlying retaliatory discharge action and, as such, concluded that the trial court’s “[d]ismissal of [the] plaintiffs retaliatory-discharge suit was caused, in the first instance, by [the] plaintiffs abandonment of that theory of the case, rather than [the] defendant’s destruction of any documents that might support that theory.” Id., 263. Recognition of a spoliation tort under such circumstances, the court concluded, “would encourage those hoping to bring spoliation claims to treat the first suit as a `dry run’ and generate only half-hearted efforts in their prosecution.” Id., 263-64; see also Miller v. Allstate Ins. Co., 650 So. 2d 671, 674 (Fla. App.) (where viable means exist, party must pursue underlying cause of action prior to, or together with, intentional spoliation of evidence claim), cert. denied, 659 So. 2d 1087 (Fla. 1995).

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We conclude that Home Depot’s reliance on Petrik is misplaced. The plaintiff in the present case, unlike the plaintiff in Petrik, pursued vigorously both his product liability claims and his intentional spoliation of evidence claim in the same litigation. The plaintiff only withdrew his product liability claims after the trial court had granted the defendants’ motion to strike. As such, the sufficiency of the plaintiffs complaint, and the propriety of the trial court’s ruling, cannot be measured by events that took place subsequent to, and in reliance on, that ruling. Indeed, the plaintiff represents in his brief to this court that he was “forced to withdraw his product liability [claims] against the defendants” because Home Depot’s destruction of the ladder, combined with the trial court’s grant of the defendants’ motion to strike, left the plaintiff “with no ability to present evidence to sustain the product liability claim[s]. . . .”He therefore withdrew the product liability claims and moved for a final judgment from which he could appeal.

In any event, we would decline to require a spoliation plaintiff to pursue a futile lawsuit to establish a causal nexus between a defendant’s alleged spoliation of evidence and the failure of the underlying action. See Mayfield v. Acme Barrel Co., 258 Ill. App. 3d 32, 38, 629 N.E.2d 690 (1994) (“no action for spoliation can be brought until after the underlying claim which is dependent upon the missing evidence is lost”); but see Boyd v. Travelers Ins. Co., 166 Ill. 2d 188, 198, 652 N.E.2d 267 (1995) (plaintiff need not lose underlying action to bring spoliation claim, instead, plaintiff may bring spoliation claim concurrently with underlying action). We agree with those jurisdictions that have concluded that requiring a plaintiff to pursue and to lose the underlying litigation prior to bringing a spoliation claim “is too harsh” and “ignores the plaintiffs interest in securing a reasonable recovery” for the alleged loss of the underlying

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action. Holmes v. Amerex Rent-A-Car, 710 A.2d 846, 851 (D.C. 1998); see also Oliver v. Stimson Lumber Co., 297 Mont. 336, 350, 993 P.2d 11 (1999) (same). Accordingly, we conclude that the plaintiffs withdrawal of his product liability action did not render his intentional spoliation of evidence claim legally insufficient.

B
We next address whether this state recognizes the tort of intentional spoliation of evidence. As an initial matter, we note briefly what is not at issue in the present case. The parties do not dispute that a defendant in a pending case has a legal duty to preserve relevant evidence.[4]
The parties further do not dispute that “the intentional destruction of evidence should be condemned. Destroying evidence can destroy fairness and justice, for it increases the risk of an erroneous decision on the merits of the underlying cause of action. Destroying evidence can also increase the costs of litigation as parties attempt to reconstruct the destroyed evidence or to develop other evidence, which may be less accessible, less persuasive, or both.” Cedars-Sinai Medical Center v Superior Court, 18 Cal. 4th 1, 8, 954 P.2d 511, 74 Cal. Rptr. 2d 248
(1998). What is at issue in the present case, however, is whether the tort of intentional spoliation of evidence is necessary to compensate the victims of spoliation and to deter future spoliation. We conclude that recognition of the tort is necessary to accomplish these goals when a first party defendant[5]

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destroys evidence intentionally with the purpose and effect of precluding a plaintiff from fulfilling his burden of production in a pending or impending case. Because the plaintiff in the present case alleges that the defendants’ bad faith intentional destruction of the ladder deprived him of the evidence he needed to establish a prima facie case of product liability against the defendants, we conclude that the trial court improperly struck the plaintiffs intentional spoliation of evidence claim.

“It cannot be doubted that we have the inherent power to recognize new tort causes of action, whether derived from a statutory provision; see, e.g., Mead v. Burns, 199 Conn. 651, 663, 509 A.2d 11 (1986) (creating damages action under Connecticut Unfair Trade Practices Act for violations of Connecticut Unfair Insurance Practices Act); or rooted in the common law. See, e.g., Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 480, 427 A.2d 385 (1980) (recognizing tort of wrongful discharge); Urban v. Hartford Gas Co., 139 Conn. 301, 307, 93 A.2d 292
(1952) (recognizing torts of intentional and negligent infliction of emotional distress).” Binette v. Sabo, 244 Conn. 23, 33, 710 A.2d 688
(1998).

“[T]he fundamental policy purposes of the tort compensation system [are] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct. . . . It is sometimes said that compensation for losses is the primary function of tort law . . . [but it] is perhaps more accurate to describe the primary function as one of determining when compensation [is] required. . . . An equally compelling function of the tort system is the prophylactic

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factor of preventing future harm. . . . The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer. . . . [I]mposing liability for consequential damages often creates significant risks of affecting conduct in ways that are undesirable as a matter of policy. Before imposing such liability, it is incumbent upon us to consider those risks.” (Citations omitted; internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 578-79, 717 A.2d 215
(1998).

“The underlying premise for recognition of [the tort of intentional spoliation of evidence] is that a victim of spoliation is entitled to recover compensatory, and possibly punitive, damages for the loss of a prospective lawsuit. The ineffectiveness of judicial sanctions in deterring spoliation prompted, in part, the recognition of this tort. . . . The spoliation tort protects a litigant’s interest in bringing a prospective cause of action by compensat[ing] the non-spoliating litigant for uninvited interference with the prospective lawsuit resulting from destroyed evidence.” (Internal quotation marks omitted.) M. M. Koesel
T. L. Turnbull, supra, pp. 84-85; see also Holmes v. Arnerex Rent-A-Car, supra, 710 A.2d 849 (“[s]ome remedy . . . should be available to those whose expectancy of recovery has been eliminated . . . through the [intentional] acts of another”); Hazen v. Anchorage, 718 P.2d 456, 464
(Alaska 1986) (“a prospective civil action in a product liability case is a valuable probable expectancy that the [c]ourt must protect from the kind of interference alleged herein” [internal quotation marks omitted]).

To determine whether existing nontort remedies are sufficient to compensate victims of intentional spoliation and to deter future spoliation, we first analyze the scope and applicability of these remedies under the facts alleged herein. This court first addressed the effect of intentional spoliation of evidence in a products liability

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case in Beers v. Bayliner Marine Corp., supra, 236 Conn. 769. In Beers, the plaintiffs brought a product liability claim against the defendant for personal injuries sustained while traveling in a motor boat. Id., 770-71. Prior to bringing the claim, however, one of the plaintiffs had removed and disposed of the boat’s motor. Id., 772-73. The defendant moved for summary judgment, claiming that it was unable to defend itself against the plaintiffs product liability claim as a result of the plaintiffs intentional spoliation of evidence. Id., 773. The trial court agreed, and rendered summary judgment in favor of the defendant. Id., 774.

On appeal, we concluded that a victim of spoliation is not entitled to summary judgment as a matter of law; id., 775; and, accordingly, we reversed the judgment of the trial court. Id., 781. Instead, we adopted “the rule of the majority of the jurisdictions that have addressed the issue [of spoliation of evidence] in a civil context, which is that the trier of fact may draw an inference from the intentional spoliation of evidence that the destroyed evidence would have been unfavorable to the party that destroyed it.” Id., 775. To be entitled to this inference, the victim of spoliation must prove that: (1) the spoliation was intentional, in the sense that it was purposeful, and not inadvertent;[6]
(2) the destroyed evidence was relevant to the issue or matter for which the party seeks the inference; and (3) he or she acted with due diligence with respect to the spoliated evidence. Id., 777-78. We emphasized that the adverse inference is permissive, and not mandatory, and that it “does not supply the place of evidence of material facts and does not shift the burden of proof so as to relieve the party upon whom it rests of the necessity of establishing

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a prima facie case, although it may turn the scale when the evidence is closely balanced.” (Internal quotation marks omitted.) Id., 779.

Pursuant to Beers, a party “suffering from spoliation cannot build an underlying case on the spoliation inference alone; for an underlying claim to be actionable, the [party] must also possess some concrete evidence that will support the underlying claim.” B. S. Wilhoit, “Spoliation of Evidence: The Viability of Four Emerging Torts,” 46 UCLAL. Rev. 631, 648 (1998). Thus, a plaintiff in a product liability action cannot rely solely on the spoliation inference to withstand a motion for summary judgment or a motion for a directed verdict; he must also have some independent concrete evidence of a product defect.

In the present case, the plaintiff alleges that the defendants’ intentional, bad faith destruction of the ladder deprived him of the evidence he needed to establish a prima facie case of product liability against the defendants.[7] Assuming this fact to be true, as we must do at

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this stage of the proceedings; see, e.g., Cotto v. United Technologies Corp., 251 Conn. 1, 42, 738 A.2d 623 (1999) (“[b]ecause the present appeal follows from a motion to strike, the facts alleged in the plaintiffs complaint must be taken to be true, and construed in the manner most favorable to the pleader”); the adverse inference in Beers would not have assisted the plaintiff in fulfilling his burden of production because it “does not supply the place of evidence of material facts” or “shift the burden of proof. . . .” (Internal quotation marks omitted.)Beers v. Bayliner Marine Corp., supra, 236 Conn. 779. Because the Beers
inference cannot be invoked by a victim of spoliation who has been deprived of the concrete evidence necessary to establish a prima facie case, we conclude that it provides an insufficient compensatory and deterrent effect under the present circumstances.

We next turn to the efficacy of the judicial sanctions available under our rules of practice for intentional spoliation of evidence. Practice Book § 13-14[8] provides

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that a party’s failure to comply with an order of discovery may result in: (1) the entry of a nonsuit or default judgment; (2) the payment of the opposing party’s costs of seeking discovery, including reasonable attorney’s fees; (3) “[t]he entry of an order that the matters regarding which the discovery was sought or other designated facts shall be taken to be established for the purposes of the action”; (4) “[t]he entry of an order prohibiting the party who has failed to comply from introducing designated matters in evidence”; and (5) “[i]f the party failing to comply is the plaintiff, the entry of a judgment of dismissal.” Like the adverse inference in Beers, most of these sanctions are of no use to a plaintiff who is unable to fulfill his or her burden of production as a result of a defendant’s intentional spoliation of evidence. Specifically, a judgment of dismissal and an entry of nonsuit are available only if the spoliator is the plaintiff. See General Statutes §52-210;[9] Practice Book § 13-14

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(a) (5). Further, the sanctions regarding the introduction of evidence are immaterial if a plaintiff is unable to muster sufficient evidence to present his claim to a fact finder. See Practice Book § 13-14 (b) (3) and (4).

Such plaintiffs may, however: (1) request the entry of default judgment; (2) move for a finding of civil or criminal contempt; Practice Book § 1-21 A;[10] or (3) seek to recover attorney’s fees for the defendant’s alleged “dilatory, bad faith and harassing litigation conduct. . . .” (Internal quotation marks omitted.) Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 9-10, 776 A.2d 1115
(2001); see also CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 393-94, 685 A.2d 1108 (1996), overruled in part on other grounds b State v. Salmon, 250 Conn. 147, 154-55, 735 A.2d 333 (1999). Moreover, we note that it is a felony to destroy or to tamper with evidence while an official proceeding is pending; see General Statutes §§ 53a-155 and 53a-146
(1);[11] and that an attorney who engages in the intentional

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spoliation of evidence may face a wide variety of professional sanctions. See Practice Book §§ 2-37, 2-44; Rules of Professional Conduct 8.4.

Although these sanctions provide a limited deterrent effect, with the exception of an entry of default judgment, none of them attempts to compensate the plaintiff for the loss of his underlying civil action. Even the propriety and applicability of an entry of default judgment, however, is questionable under the present circumstances. As we previously explained, this court concluded in Beers that a party’s intentional spoliation of evidence does not relieve the spoliation victim of the burden to produce concrete evidence to support his underlying claim. Beers v. Bayliner Marine Corp., supra, 236 Conn. 779. As such, it would appear to be inconsistent with Beers to conclude that a victim of spoliation is entitled to judgment as a matter of law, despite his inability to satisfy his burden of proof, as a consequence of a defendant’s intentional spoliation of evidence. To the extent that a default judgment would be proper, we note that it is a discretionary sanction of last resort and, as such, likely would be available only in the most egregious cases. See, e.g., Marfia v. T.C. Ziraat Bankasi, 100 F.3d 243, 249 (2d Cir. 1996) (entry of default judgments is “the most severe sanction which the court may apply” [internal quotation marks omitted]); Evans v. General Motors Corp., 277 Conn. 496, 523-24, 893 A.2d 371 (2006) (“although [entry of a default judgment] is not an abuse of discretion whe[n] a party shows a deliberate, contumacious or unwarranted disregard for the court’s authority . . . the court should be reluctant to employ the sanction . . . except as a last resort” [internal quotation marks omitted]). Accordingly, we conclude that existing nontort remedies are insufficient to compensate a victim of spoliation who has been deprived completely of his

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underlying civil action as a result of a defendant’s intentional, bad faith destruction of evidence.

Moreover, we conclude that these remedies do not adequately deter future intentional, bad faith spoliation of evidence. In a product liability action, the allegedly defective product often is the best if not the only evidence of a product defect. Where the product is in the sole custody or control of the defendant, the possible specter of nontort sanctions may pale in comparison to the costs of a lengthy trial or a substantial award of damages. Indeed, the more defective the product, the stronger the financial incentive to destroy or to dispose of the inculpatory evidence so as to prevent the plaintiff from proving his claim. In other words, under the existing remedies, the more effective the defendant’s spoliation conduct, the greater the financial reward.

For the foregoing reasons, we conclude that the existing nontort remedies are insufficient to compensate victims of spoliation and to deter future spoliation 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. We therefore conclude that recognition of an independent cause of action for intentional spoliation of evidence is necessary to fulfill the public policy goals of the tort compensation system.

“In defining the parameters of the tort of intentional spoliation of evidence we look to the several states that currently recognize this tort. Intentional spoliation of evidence is defined as `the intentional destruction, mutilation, or significant alteration of potential evidence for the purpose of defeating another person’s recovery in a civil action.'” Hannah v. Heeter, supra, 213 W. Va. 716, quoting Coleman v Eddy Potash, Inc., supra, 120 N.M. 649. “Although no uniform body of case law has developed regarding the precise contours of this tort,

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most states that have adopted the tort agree that the elements of intentional spoliation consist of: (1) pending or probable litigation involving the plaintiff, (2) knowledge on the part of [the] defendant that litigation exists or is probable, (3) willful destruction of evidence by [the] defendant designed to disrupt the plaintiffs case, (4) disruption of the plaintiffs case, and (5) damages proximately caused by the defendant’s acts.”[12] (Internal quotation marks omitted.) M. M. Koesel T. L. Turnbull, supra, pp. 88-89. In light of the consensus among our sister states, we conclude that the tort of intentional spoliation of evidence consists of 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;

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(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.

Home Depot claims, however, that the tort of intentional spoliation of evidence is unworkable and provides an ineffective remedy. Specifically, Home Depot contends that causation and damages would be difficult to prove because “there will typically be no way of telling what precisely the [spoliated] evidence would have shown and how much it would have weighed in the spoliation victim’s favor.” Cedars-Sinai Medical Center
v. Superior Court, supra, 18 Cal. 4th 14. We agree that this difficulty of proof is “endemic to the tort of spoliation”; (internal quotation marks omitted) Holmes v. Amerex Rent-A-Car, supra, 710 A.2d 853; but we disagree that it should preclude recognition of the tort. Id. The difficulty in determining the harm caused by a defendant’s spoliation of evidence is attributable solely to the defendant’s intentional bad faith litigation misconduct. If the plaintiff could establish precisely what the spoliated evidence would have shown, the tort would be unnecessary because the plaintiff would possess sufficient evidence to satisfy his burden of production in the underlying litigation. See id., 850 (“the very purpose of an independent action for spoliation of evidence lies in the inability of the plaintiff to prove proximate causation to the proper degree of certainty required in the underlying suit”). Accordingly, “there would be an inequity in preventing a plaintiff from recovering because of his inability, allegedly caused by the defendant, to prove his underlying case. [T]he most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created.” (Internal quotation marks omitted.) Id.; see also Story Parchment Co. v. Paterson Parchment Paper Co.,

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282 U.S. 555, 563, 51 S. Ct. 248, 75 L. Ed. 544 (1931) (“Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts. In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate. The wrongdoer is not entitled to complain that they cannot be measured with the exactness and precision that would be possible if the case, which he alone is responsible for making, were otherwise.”).

In light of the difficulties of proof inherent in the tort of intentional spoliation of evidence, we next clarify the plaintiffs 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.[13] Cf. Smith v Atkinson, 771 So. 2d 429, 434

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(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 plaintiffs claim in the underlying action that without that evidence the claim did not survive or would not have survived a motion for summary judgment”); Hannah v. Heeter, supra, 213 W. Va. 714
(same). Once the plaintiff satisfies this burden, “there arises a rebuttable presumption that but for the fact of the spoliation of evidence the plaintiff would have recovered in the pending or potential litigation. . . .” Smith v. Atkinson, supra, 432-33; see also Hannah v Heeter, supra, 717 (“[o]nce the [elements of the tort of intentional spoliation of evidence] are established, there arises a rebuttable presumption that but for the fact of the spoliation of evidence, the party injured by the spoliation would have prevailed in the pending or potential litigation”); cf. Welsh v. United States, 844 F.2d 1239, 1248
(6th Cir. 1988) (“When, as here, a plaintiff is unable to prove an essential element of her case due to the negligent loss or destruction of evidence by an opposing party, and the proof would otherwise be sufficient to survive a directed verdict, it is proper for the trial court to create a rebuttable presumption that establishes the missing elements of the plaintiffs case that could only have been proved by the availability of the missing evidence. The burden thus shifts to the defendant-spoliator to rebut the presumption and disprove the inferred element of [the] plaintiffs prima facie case.”). The defendant

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may rebut this presumption by “producing evidence showing that the plaintiff would not have prevailed in the underlying action even if the lost or destroyed evidence had been available.” Smith v. Atkinson, supra, 435. “The [defendant] spoliator must over-come the rebuttable presumption or else be liable for damages.” Hannah v. Heeter, supra, 717.

We next turn to the proper measure of damages. We acknowledge that, “[t]he most difficult aspect of a spoliation of evidence tort is the calculation of damages.” (Internal quotation marks omitted.) Holmes v AmerexRent-A-Car, supra, 710 A.2d 852. In determining the proper measure of damages, we are guided by the purpose of compensatory damages, which is “to restore an injured party to the position he or she would have been in if the wrong had not been committed.” Kenny v. Civil Service Commission, 197 Conn. 270, 276, 496 A.2d 956 (1985). To restore a victim of intentional spoliation of evidence to the position he or she would have been in if the spoliation had not occurred, the plaintiff is entitled to recover the full amount of compensatory damages that he or she would have received if the underlying action had been pursued successfully. See Hannah v. Heeter, supra, 213 W. Va. 715 (full measure of compensatory damages); Smith v. Atkinson, supra, 771 So. 2d 437-38 (same); see also Petrik v. Monarch Printing Corp., supra, 150 Ill. App. 3d 261 (“[a]ssuming that it is impossible to know what the spoliated evidence would have shown, perhaps the plaintiff should be awarded the full measure of damages that he would have obtained had he won the underlying lawsuit”).

We recognize that various jurisdictions have criticized this measure of damages because “there is the potential that the plaintiff would benefit more in an instance of spoliation than he might have in the underlying

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suit.”[14] (Internal quotation marks omitted.) Holmes v. Amerex Rent-A-Car, supra, 710 A.2d 853; Petrik v. Monarch Printing Corp., supra, 150 Ill. App. 3d 261. We conclude, however, that the risk of a windfall to the plaintiff sufficiently is minimized by requiring the plaintiff to prove that the defendant spoliated evidence intentionally with the purpose and effect of precluding the plaintiffs ability to establish a prima facie case in the underlying litigation and, further, by permitting the defendant to rebut the presumption of liability that arises upon this showing. Cf. Smith v. Atkinson, supra, 771 So. 2d 437-38 (“[b]ecause the approach we adopt today to [third party spoliation of evidence] is distinct from the approaches adopted by other [s]tates, observations [concerning a windfall to the plaintiff] fail to consider the additional protection provided [by] . . . the element of a rebuttable presumption that would shift the burden of proof); Hannah v. Heeter, supra,

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213 W. Va. 715 (adopting full compensatory damages as measure of damages for reasons articulated in Smith). To the extent that some risk of a windfall to the plaintiff persists, we conclude that the defendant should bear this risk in light of its egregious litigation misconduct. Se Petrik v. Monarch Printing Corp., supra, 261 (“[a]lthough it is true that the plaintiff in a spoliation case would reap a windfall if the underlying suit had no merit, perhaps the intentional destroyer of evidence should bear that risk”).

Home Depot next claims that the burdens imposed by the tort of intentional spoliation of evidence out-weigh the benefits. Specifically, Home Depot alleges that the tort of intentional spoliation of evidence imposes the following intolerable costs: (1) extraordinary precautions by individuals and businesses to preserve needlessly any evidence that might be relevant to future litigation; (2) meritless spoliation actions clogging the dockets of the courts; (3) where the underlying claim and the spoliation claim are pursued simultaneously, the risk of jury confusion and inconsistency; (4) where the underlying claim and the spoliation claim are pursued separately, the risk of duplicative efforts and potentially inconsistent results. See, e.g., Cedars-Sinai Medical Center v. Superior Court, supra, 18 Cal. 4th 15 (costs imposed by tort of intentional spoliation of evidence outweigh benefits). We recognize that “[i]mposing liability for consequential damages often creates significant risks of affecting conduct in ways that are undesirable as a matter of policy.” (Internal quotation marks omitted.) Lodge v. Arett Sales Corp., supra, 246 Conn. 579. We are not persuaded, however, that the costs imposed by the tort of intentional spoliation of evidence exceed the benefits.

First, with respect to the preservation of evidence, we note that the parties to a pending or impending civil action already have a legal duty to retain evidence

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relevant to that action under our existing common law and statutory scheme. See footnotes 4, 8 and 10 of this opinion and accompanying text. Thus, the tort of intentional spoliation of evidence does not impose a greater burden to preserve evidence than that which already exists. Second, with respect to the risk of meritless spoliation actions, we do not agree with Home Depot that recognition of the tort will result in an uncontrollable influx of frivolous claims. We conclude that the limited scope of the tort, the difficulty of proof inherent in the tort and the safeguards embodied in our rules of practice; see Rules of Professional Conduct 3.1;[15] are sufficient to deter the filing of such meritless actions. Lastly, the tort of intentional spoliation of evidence, as defined in this state, poses no risk of jury confusion, inconsistent verdicts or duplicative litigation because the underlying claim and the tort of intentional spoliation of evidence are mutually exclusive. In other words, a plaintiff who possesses sufficient evidence to present his underlying claim to the jury necessarily is unable to state a claim for intentional spoliation of evidence, and vice versa. Thus, the risk of jury confusion, inconsistent verdicts or duplicative litigation is eliminated entirely. Accordingly, we conclude that the benefits of the tort of intentional spoliation of evidence, namely, compensating the victims of intentional spoliation and deterring future spoliation, outweigh the minimal burdens imposed by the tort.

For the foregoing reasons, we conclude that this state recognizes the tort of intentional spoliation of evidence. Because the plaintiffs complaint sufficiently states a

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claim for intentional spoliation of evidence; see part I A and footnote 7 of this opinion; we conclude that the trial court improperly granted the defendants’ motion to strike the plaintiffs intentional spoliation claim.

II
Lastly, the plaintiff contends that the trial court improperly denied his request to file a second amended complaint alleging that the defendants’ intentional destruction of evidence violated CUTPA. Specifically, the plaintiff claims that the trial court abused its discretion when it concluded that the plaintiffs request was untimely and that the proposed amendment was unsupported by factual allegations. Home Depot responds that the trial court properly denied the plaintiffs request in light of the age of the case, the impending trial, the broad new issues being injected into the case and the plaintiffs unreasonable delay in seeking the amendment. We conclude that the trial court improperly considered the legal sufficiency of the plaintiffs proposed CUTPA claim in ruling on the plaintiffs request to file a second amended complaint. We further conclude, however, that the trial court did not abuse its discretion by denying the plaintiffs request on the grounds of timeliness and prejudice to the defendants.

The following additional procedural history is relevant to our resolution of this claim. On November 25, 2002, the plaintiff filed a request for permission to file a second amended complaint alleging that Home Depot had destroyed evidence as part of a “pattern in practice [of] destroy[ing] critical pieces of evidence that are the subject of litigation against it” in violation of CUTPA. On December 6, 2002, the defendants objected to the plaintiffs request, claiming that the proposed amendment was legally deficient because the plaintiff had failed to allege any facts in support of the CUTPA claim. On February 5, 2003, the defendants filed a supplemental

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objection to the plaintiffs request, claiming that the proposed amendment was untimely and would be unduly prejudicial to the defendants.

Thereafter, in February, 2003, the law firms that had represented both defendants jointly withdrew their appearances on the ground of a conflict of interest, [16] and both Home Depot and Davidson obtained separate counsel. On February 20, 2003, Home Depot filed a motion to withdraw the December 6, 2002 objection to the plaintiffs request to file an amended complaint, and the February 5, 2003 supplemental objection, both of which had been filed by predecessor counsel. On that same date, Home Depot also filed a new objection to the plaintiffs request, claiming: “(1) the granting of the proposed amendment would unfairly prejudice Home Depot and unnecessarily delay the trial of this matter; (2) any necessity to amend the [c]omplaint at this late date is due solely to [the] plaintiffs own neglect as opposed to any newly discovered facts; (3) the proposed amendment [seeking] to add a new count for violation of [CUTPA] is barred by the applicable statute of limitations or the exclusivity provisions of Connecticut’s Product Liability Act; and (4) the proposed amendment seeking to add a new count for CUTPA is legally insufficient.”

Meanwhile, the trial, which originally had been scheduled for April 30, 2001, but was postponed to February 18, 2002, was continued to March 19, 2003. On January

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28, 2003, the defendants moved for a continuance because trial counsel was unavailable.[17] The plaintiff objected to the motion, and the trial court, Sheedy, J., denied the motion because of the age of the case.

On February 24, 2003, the trial court, Doherty, J., heard oral arguments on the defendants’ objection to the plaintiffs request to file a second amended complaint. The plaintiff claimed that the proposed amendment was timely because it was filed immediately after he discovered that Home Depot had a pattern and practice of intentionally destroying evidence relevant to pending litigation.[18] The plaintiff further argued that the defendants would not suffer any undue prejudice because the proposed amendment had been pending since November, 2002. Finally, the plaintiff claimed that if the court concluded that the proposed amendment was untimely, the CUTPA count should be severed from the other issues and tried separately.

On March 19, 2003, the date that trial was scheduled to commence, the trial court sustained the defendants’ objection. The plaintiff moved to reargue his request and, on April 10, 2003, the trial court denied the plaintiffs motion. Thereafter, the trial court rendered judgment in favor of the defendants, and the plaintiff appealed from the judgment of the trial court to the Appellate Court. On November 17, 2003, the plaintiff

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moved the Appellate Court to order the trial court to articulate its reasons for sustaining the defendants’ objection. The Appellate Court granted the motion and, on December 17, 2004, the trial court issued an articulation, explaining that it had sustained the defendants’ objection because the plaintiffs proposed CUTPA claim was unsupported by factual allegations and was “so untimely as to be unfair and prejudicial to the defendants. . . .”[19]

“Our standard of review of the plaintiffs claim is well settled. While our courts have been liberal in permitting amendments . . . this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment. . . . The motion to amend is addressed to the trial court’s discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial. . . . Whether to allow an amendment is a matter left to the sound discretion of the trial court. This court will not disturb a trial court’s ruling on a proposed amendment unless there has been a clear abuse of that discretion. . . . It is the [plaintiffs] burden in this case to demonstrate that the trial court clearly abused its discretion.”

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(Internal quotation marks omitted.) Dow Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 583-84, 833 A.2d 908 (2003).

The plaintiff first claims that the trial court improperly denied his request to file a second amended complaint on the ground that the proposed CUTPA claim was unsupported by factual allegations. Specifically, the plaintiff claims that “requests to amend cannot be denied based on the sufficiency of the proposed complaint.” We agree. The proper procedural vehicle to challenge the legal sufficiency of a proposed pleading is a motion to strike, rather than an objection to a motion to amend. See Practice Book § 10-39.[20] Thus, even if a proposed pleading is alleged to be insufficient, a “plaintiff should be permitted to file [the amended pleading], so that the issues arising under it may be determined in proceedings properly adapted to that

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end.” Newman v. Golden, 108 Conn. 676, 680, 144 A. 467 (1929) (trial court improperly denied plaintiffs motion to file substitute pleading on ground that proposed pleading failed to state claim); see also Smith v Furness, 117 Conn. 97, 100, 166 A. 759 (1933) (“[w]e go no farther . . . than to point out that it was error for the trial court to refuse to permit [the amended pleading] to be filed upon the ground that the facts stated in it would not legally constitute a defense”). Accordingly, we conclude that the trial court abused its discretion by denying the plaintiffs request to file an amended complaint on the ground that the proposed CUTPA claim was unsupported by factual allegations.

The plaintiff next claims that the trial court improperly denied his request to file an amended complaint on the ground that the proposed amendment was untimely. We are not persuaded. The plaintiff discovered Home Depot’s destruction of evidence in 1999, but did not seek to allege a violation of CUTPA until November, 2002, at which point the trial was only four months away.[21] The proposed amendment would have injected new and complex legal issues into the litigation concerning the scope and applicability of CUTPA and, moreover, would have required additional discovery concerning Home Depot’s alleged “pattern [and] practice” of destroying evidence in other cases. Moreover, the trial date had been continued repeatedly for approximately two years, and the plaintiff himself had objected to any further delays. Because the trial court reasonably could have concluded that granting the plaintiff’s

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request to file a second amended complaint would have delayed the trial and prejudiced the defendants, [22] the trial court did not abuse its discretion by denying the plaintiffs request.[23] See AirKaman, Inc.
v. Groppo, 221 Conn. 751, 767, 607 A.2d 410 (1992) (trial court did not abuse discretion by denying request to amend complaint where pleadings had been closed, opposing party had submitted trial brief and claim would require additional discovery), superseded by statute on other grounds as stated in Renaissance Management Co. v. Commissioner of Revenue Services, 48 Conn. Sup. 221, 838 A.2d 260 (2002), aff’d, 267 Conn. 188, 836 A.2d 1180 (2003); Connecticut National Bank v. Douglas, 221 Conn. 530, 548, 606 A.2d 684 (1992) (trial court did not abuse discretion by denying request to amend that was filed approximately two weeks before trial and “would have added lengthy new allegations of fact and law”); Beckman v Jalich Homes, Inc., 190 Conn. 299, 303, 460 A.2d 488 (1983) (trial court did not abuse discretion by denying request to amend that was filed day before trial and would have added new bases of liability).

The judgment is reversed with respect to the claim of spoliation of evidence and the case is remanded to

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the trial court with direction to deny the motion to strike as to that claim and for further proceedings according to law; the judgment is affirmed in all other respects.

In this opinion NORCOTT, PALMER and VERTEFEUILLE, Js., concurred.

PALMER, J., concurring.

I join the majority opinion. I write separately simply to note that there is a way to achieve the result that the majority reaches without creating a new tort of intentional spoliation of evidence. That approach would be to extend our holding in Beers v. Bayliner Marine Corp., 236 Conn. 769, 675 A.2d 829 (1996), to provide that a plaintiff may invoke the Beers adverse inference to satisfy his or her burden of production upon proof merely that the defendant had destroyed the evidence in bad faith, that is, with intent to deprive the plaintiff of his or her cause of action. Although I believe that such a modification of Beers
would satisfy the concerns addressed by the majority, the plaintiff in the present action has not sought that remedy; indeed, the plaintiff has withdrawn his product liability claims, and, therefore, an extension o Beers in the manner suggested would not avail the plaintiff. In light of the procedural history of this case, and because I agree with the plaintiff that the currently available remedies for intentional, bad faith spoliation of evidence are inadequate, I join the majority opinion.

SULLIVAN, C. J., dissenting.

I disagree with part I B of the majority opinion, in which the majority concludes that this state should recognize a tort for intentional first party spoliation of evidence when, as a result of the spoliation, the plaintiff is unable to establish a prima facie case in the underlying action. The majority concludes that recognition of this tort is necessary to compensate victims of spoliation and to deter future

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spoliation. I would conclude that existing remedies are sufficient to deter and punish acts of spoliation and that it is against public policy to provide compensation for damages when liability cannot be established.

The majority of jurisdictions that have considered whether to recognize a tort for first party spoliation of evidence have concluded that such claims are not cognizable.[1] The California Supreme Court’s analysis in

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Cedars-Sinai Medical Center v. Superior Court, 18 Cal. 4th 1, 8, 954 P.2d 511, 74 Cal. Rptr. 2d 248 (1998), is typical of these cases. The court in that case recognized that the crux of the question before it was “whether a tort remedy for the intentional first party spoliation of evidence would ultimately create social benefits exceeding those created by existing remedies for such conduct, and outweighing any costs and burdens it would impose.” Id.; see also Perodeau v. Hartford, 259 Conn. 729, 759, 792 A.2d 752 (2002) (balancing social costs against social benefits in considering whether to recognize tort of negligent infliction of emotional distress in ongoing employment context). The court noted that “[t]hree concerns in particular stand out here: the conflict between a tort remedy for intentional first party spoliation and the policy against creating derivative tort remedies for litigation-related misconduct; the strength of existing nontort remedies for spoliation; and the uncertainty of the fact of harm in spoliation cases.” Cedars-Sinai Medical Center v. Superior Court, supra, 8.

After reviewing the cases in which it repeatedly had refused to create new torts to remedy litigation related misconduct; id., 9; and the existing nontort remedies for spoliation, including evidentiary inferences, discovery sanctions, procedural sanctions, attorney disciplinary sanctions, and criminal penalties; id., 11-13; the California court concluded that “existing remedies are generally effective at deterring spoliation.” Id., 13. The court also concluded that “in a substantial proportion of spoliation cases the fact of harm will be irreducibly uncertain.”

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Id. “`It would seem to be sheer guesswork, even presuming that the destroyed evidence went against the spoliator, to calculate what it would have contributed to the plaintiffs success on the merits of the underlying lawsuit. . . . The lost evidence may have concerned a relevant, but relatively trivial matter. If evidence would not have helped to establish [the] plaintiffs case an award of damages for its destruction would work a windfall for the plaintiff.'” Id., 14, quotin Petrik v. Monarch Printing Corp., 150 Ill. App. 3d 248, 260-61, 501 N.E.2d 1312 (1986). Accordingly, the court concluded that, although “the intentional spoliation of evidence by a party to the litigation to which it is relevant is an unqualified wrong . . . it is the rare case in which a tort remedy for an intentionally caused harm is not appropriate.”Cedars-Sinai Medical Center v. Superior Court, supra, 18 Cal. 4th 17.

Like California, Connecticut disfavors derivative torts.[2] In addition, in Connecticut, as in California, the

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rules of evidence, procedure and attorney conduct and the criminal law provide a wide range of sanctions for spoliation. The majority does not dispute these facts and, indeed, apparently accepts the reasoning of the court in Cedars-Sinai Medical Center as it applies to cases in which the plaintiff is the spoliator or in which the defendant is the spoliator and the plaintiff can establish a prima facie case in the underlying action. The majority concludes, however, that when a plaintiff is unable to meet his burden of production as a result of the defendant’s bad faith destruction of evidence, the plaintiff should be able to bring a spoliation action against the defendant. I disagree.

As a preliminary matter, I note that there simply is no need to reach this issue in the present case because, contrary to the majority’s statement, the plaintiff, Leandro Rizzuto, has not alleged that he was unable to make a prima facie case in his product liability action as the result of the destruction of the ladder by the defendants, Davidson Ladders, Inc., [3] and Home Depot, Inc. Rather, the plaintiff alleged in his complaint that his “case has been damaged to the point where no expert can conclusively establish the mechanism of the defect which caused the plaintiffs injuries” and, therefore, he “may not be able to prove his case. . . .”[4] (Emphasis added.)

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Similarly, in his memorandum in opposition to the defendants’ motion to strike the spoliation claims, the plaintiff did not suggest that he was unable to make out a prima facie case, but argued only that, under Beers
v. Bayliner Marine Corp., 236 Conn. 769, 675 A.2d 829 (1996), if hypothetical plaintiff were unable to establish a prima facie case, then that plaintiff would have no remedy.[5] It is hardly surprising that the plaintiff failed either to allege or to argue to the trial court that he could not make out a prima facie case because: (1) he has never argued that the tort of first party intentional spoliation should be limited to cases in which the plaintiff cannot meet his burden of production; and (2) no court that I am aware of has imposed such a limitation on the tort.[6] More importantly, this court and numerous

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other courts have recognized that, in a product liability lawsuit, the destruction of the allegedly defective product does not necessarily prevent the plaintiff from proving his case. See id., 778 (“the spoliation of a machine may raise an adverse inference with respect to a claim that that particular machine was defective”); Miller v. Allstate Ins. Co., 650 So. 2d 671, 674 (Fla. App. 1995) (evidence that product malfunctioned during normal operation constitutes prima facie case that product was defective); see also Beil v. Lakewood Engineering Mfg. Co., 15 F.3d 546, 553 (6th Cir. 1994) (reversing District Court’s granting of summary judgment in favor of defendant on ground that plaintiff had destroyed evidence because, in product liability case based on design defect, plaintiff can demonstrate design defect without specific product) Columbian Rope Co. v. Todd,

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631 N.E.2d 941, 944 (Ind. App. 1994) (when plaintiff claimed design defect in rope and then lost rope, testimony of plaintiffs expert witness based on exemplar rope was admissible).

In my view, evidence that the ladder collapsed when the plaintiff stood on it, together with evidence that the defendants intentionally destroyed the ladder, clearly would be sufficient to support an inference unde Beers that physical examination of the ladder would have been unfavorable to the defendants. See Beers v. Bayliner Marine Corp., supra, 236 Conn. 775. It is also possible that the plaintiff could demonstrate that the ladder was defective by using exemplar ladders. It is ironic that, although the majority opinion purportedly is premised on the unfairness to the plaintiff of disallowing a claim for spoliation, the majority not only fails to view the plaintiffs product liability action in the light most favorable to him, but takes precisely the opposite tack. I cannot fathom why the majority is so eager to adopt a new tort for first party intentional spoliation of evidence — in a form that no other jurisdiction in the country has recognized — that it is willing to distort the record to suggest that the plaintiff in the present case could meet the elements of that tort.

Even if this were an appropriate case for this court to consider adopting the tort in the form proposed by the majority, however, I would conclude that we should not do so. First, although the majority purports to rely on this court’s decision in Beers as mandating the recognition of an independent tort for intentional spoliation, its decision is entirely inconsistent with that case. We stated in Beers that the inference that destroyed evidence would have been unfavorable to the spoliator “does not supply the place of evidence of material facts and does not shift the burden of proof so as to relieve the party upon whom it rests of the necessity of establishing

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a prima facie case. . . .”[7] (Internal quotation marks omitted.) Id., 779. The majority now concludes that, because the Beers inference is not available when the plaintiff has failed to make out a prima facie case, a plaintiff who cannot do so must receive something much more valuable, namely, the benefit of a rebuttable presumption that he would hav prevailed if not for the destruction of the evidence. The majority attempts to justify this departure from Beers by pointing out that we specifically stated in that case that we were leaving “to another day the determination of the appropriate

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remedy when the spoliator’s intent had been to perpetrate a fraud. . . .” Id., 777 n. 11. Nothing in Beers, however, remotely suggests that, in direct contradiction to the limitation on the adverse inference that we expressly adopted in that case, and to the well established evidentiary principles and public policy considerations underlying that limitation, we might in a future case require the trial court to create a rebuttable presumption that the plaintiff would have prevailed if not for the destruction of the evidence when, and only when, the destruction of the evidence prevents the plaintiff from establishing a prima facie case.

The public policy considerations underlying Beers were explained i Cedars-Sinai Medical Center. In that case, the California court pointed out that, when a plaintiff is unable to present evidence in support of his underlying action, “the fact of harm will be irreducibly uncertain. In such cases, even if the jury infers from the act of spoliation that the spoliated evidence was somehow unfavorable to the spoliator, there will typically be no way of telling what precisely the evidence would have shown and how much it would have weighed in the spoliation victim’s favor. Without knowing the content and weight of the spoliated evidence, it would be impossible for the jury to meaningfully assess what role the missing evidence would have played in the determination of the underlying action. The jury could only speculate as to what the nature of the spoliated evidence was and what effect it might have had on the outcome of the underlying litigation.” Cedars-Sinai Medical Center v. Superior Court, supra, 18 Cal. 4th 13-14; see also Goff v. Harold Ives Trucking Co., 342 Ark. 143, 149, 27 S.W.3d 387 (2000) (same); Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349, 354-55 (Ind. 2005) (same); Federated Mutual Ins. Co. v. Litch-field Precision Components, Inc., 456 N.W.2d 434, 439
(Minn. 1990) (declining to recognize tort for first party

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spoliation of evidence in absence of evidence that plaintiff would have prevailed in underlying action if evidence had not been destroyed because, not only extent, but also existence of harm was purely speculative). When the plaintiff is unable even to establish a prima facie case, these principles apply all the more strongly.

In support of its conclusion that the irreducible uncertainty of harm does not militate against adopting a tort for first party intentional spoliation of evidence when the plaintiff cannot establish a prima facie case, the majority relies on Holmes v. Amerex Rent-A-Car, 710 A.2d 846, 853
(D.C. 1998), and Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563, 51 S. Ct. 248, 75 L. Ed. 544 (1931). In Holmes, the court stated that “there would be an inequity in preventing a plaintiff from recovering because of his inability, allegedly caused by the defendant, to prove his underlying case. [T]he most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created.” (Internal quotation marks omitted.) Holmes v. Amerex Rent-A-Car, supra, 850. In Story Parchment Co., the court stated that “[w]here the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts. In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate. The wrongdoer is not entitled to complain that they cannot be measured with the exactness and precision that would be possible if the case, which he alone is responsible for making, were otherwise.”

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(Internal quotation marks omitted.) Story Parchment Co. v. Paterson Parchment Paper Co., supra, 563.

In Story Parchment Co., however, the court specifically found that the evidence at trial supported a finding that the defendant unlawfully had interfered with the plaintiffs business and that the interference had injured the plaintiff. Id., 560. Only the amount of damages was uncertain. Id., 561. In Holmes, the court held that, in order to receive damages, the plaintiff was required to prove at least that it “enjoyed a significant possibility of success” in the underlying claim. Holmes v Amerex Rent-A-Car, supra, 710 A.2d 852. In contrast, in the present case, the majority would allow the recovery of damages only in cases where the plaintiff cannot even make a prima facie case of liability in the underlying action. Thus, “the issue [here] is proof of the existence, not merely the extent, of an injury.” (Emphasis added.) Federated Mutual Ins. Co. v. Litchfield Precision Components, Inc., supra, 456 N.W.2d 438. Because the reasoning of the court in Story Parchment Co. does not apply when there is no evidence of causation, I believe that the majority’s reliance on that case is entirely misplaced.

The majority may respond, however, that under the version of the tort that it adopts, the plaintiff must prove that the defendant caused an injury because he must establish that the defendant destroyed the evidence in bad faith, i.e., with an intent to deprive the plaintiff of his cause of action. This is mere sleight of hand. The majority cannot, simply by conjuring up a new derivative tort in which the element of bad faith substitutes for the element of causation, change the basic fact that any finding of liability and damages without a finding that the injury was in fact caused by the defendant must

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be entirely speculative. Bad faith, in and of itself, cannot injure anyone.[8]

The majority engages in a similar sleight of hand when it concludes that the plaintiff is entitled to the full amount of his damages. The majority implicitly argues that when a defendant’s destruction of evidence prevents the plaintiff from presenting even a prima facie case, the defendant’s conduct is so “egregious” that it is fair to place on him the entire risk of the uncertainty of harm. The majority does not allow the tort, however, in all cases where the defendant has engaged in egregious, bad faith conduct, but only in those cases where the plaintiff cannot present a prima facie case. Thus, another defendant could engage in equally egregious conduct and incur no liability whatsoever because, although he did not prevent the plaintiff from establishing a prima facie case, he did prevent the plaintiff from proving his case.

Consider the following examples. Driver A drives his new lawnmower off a cliff and incurs severe injuries. He claims that the steering became inoperable just before the crash, but the manufacturer of the lawn-mower destroys the lawnmower in bad faith before trial. Because the jury reasonably could believe A’s testimony that the steering malfunctioned, he has a prima facie case of product liability. See Miller v. Allstate Ins. Co., supra, 650 So. 2d 674 (evidence that product malfunctioned during normal operation constitutes prima facie case that product was defective). Without the lawn-mower, however, the jury is not convinced that it is

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more likely than not that the lawnmower was defective and finds for the defendant.[9] A has no recourse against the manufacturer.

Driver B drives his new lawnmower off a cliff and incurs severe injuries. He does not recall what happened just before the crash and the manufacturer destroys the lawnmower in bad faith before trial. B has no prima facie case of liability and, therefore, can seek the entire amount
of damages from the manufacturer in a spoliation action.

I simply do not understand why the majority believes that, although Driver A is not entitled to receive anything from the spoliator in spite of the fact that the defendant’s bad faith destruction of the evidence severely impaired his ability to recover damages, Driver B is entitled to recover the entire amount of his damages, even though there is no
evidence that his injuries were caused by a defective lawnmower. The spoliator’s conduct was equally egregious in each instance. If the majority believes that the bad faith destruction of evidence requires a harsher approach to spoliators than this court’s approach in Beers, it would make much more sense to create a mandatory rebuttable presumption that the spoliated evidence would have favored the plaintiff in all cases where the defendant destroyed the evidence in bad faith, except those in which the plaintiff is unable to establish even a prima facie case of causation.[10] I cannot perceive why a plaintiff who has presented

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some evidence in support of each element of his underlying claim, but ultimately cannot meet his burden of proof without the destroyed evidence, should be in a worse position than a plaintiff who cannot even meet his burden of production.[11]

Finally, I would point out that we have not hesitated to require plaintiffs to prove causation in other contexts where a plaintiffs ability to establish liability and damages has been unpaired by the defendant’s conduct. In legal malpractice actions, the plaintiff is required to prove that “the defendant attorney’s professional negligence caused injury to the plaintiff by presenting evidence of what would have happened in the underlying action had the defendant not been negligent. This traditional method of presenting the merits of the underlying action is often called the `case-within-a-case.'” Margolin v. Kleban Samor, P.C., 275 Conn. 765, 775 n. 9, 882 A.2d 653 (2005). We do not excuse the plaintiff from making a showing of causation merely because the attorney has made it difficult for the plaintiff to establish what would have happened in the underlying action in the absence of the malpractice, regardless of the nature and severity of the attorney’s misconduct.

To the extent that the majority believes that a completely arbitrary damage award is preferable to no award at all when the defendant has engaged in bad faith spoliation, the establishment of a civil fine payable to the spoliation victim would be better left to the legislature. See Mendillo v. Board of Education, 246 Conn. 456, 486-87, 717 A.2d 1177
(1998). There simply is no precedent for allowing a jury to award damages for an

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injury when there is no evidence that the defendant caused the injury.

I recognize the unfairness of denying recovery to a plaintiff when, as the possible result of the defendant’s wrongful conduct, he cannot establish a prima facie case. The plain fact remains, however, that the causal connection between the plaintiffs inability to recover damages and the defendant’s conduct must be irreducibly speculative in such cases. I also recognize that there may be cases where the defendant will prefer the risk of sanctions, a default judgment, contempt penalties, criminal fines and even imprisonment to the risk of a civil judgment against him. This proves only that human systems of justice will not be perfect until human behavior is perfect. I would conclude that, in our imperfect world, the well-defined costs of allowing claims for first party intentional spoliation of evidence out-weigh the speculative benefits. Accordingly, I dissent.