Spoliation of Evidence

April 16, 2010

By: David Jaffe

Connecticut does not recognize a cause of action for tortious interference with a civil action by spoliation of evidence. Reilly v. D'Errico, 1994 Conn. Super. LEXIS 2450 (Sept. 21, 1994; J.D. of New Haven; Hartmere, J). However, the intentional spoliation of evidence permits the trier of fact to infer that the destroyed evidence would have been unfavorable to the party that destroyed it.

In Beers v. Bayliner Marine Corp., 236 Conn. 769 (1996), a case of first impression, the Connecticut Supreme Court took up the doctrine of spoliation of evidence. The Court declined to adopt a blanket approach, which is grounded on punishing the spoliator, but instead adopted the rule of the majority of jurisdictions that have addressed the issue 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.

Before such inference can be drawn, the trier of fact must be satisfied that the party who seeks the adverse inference has established that: (1) The spoliation was intentional in the sense that the evidence was disposed of intentionally and not merely destroyed inadvertently; (2) the destroyed evidence is relevant to the issue or matter for which the party seeks the inference; and that (3) the party seeking the inference acted with due diligence with respect to the spoliated evidence.

If these factors are established, the jury is then instructed that it may draw such an inference. (See letters from John I. Bolton, Esq. to Lake Compounce, dated July 6, 2004, and from David K. Jaffe, Esq. to Joel M. Fain, Esq., dated October 20, 2004, attached hereto.)

B. In the Present Case

In the present case, within a couple of days of the two branches failing, one of them striking and killing a young boy as described in more detail herein, Sean Rice, a representative of the defendant, Total Landscaping & Tree Company, reportedly instructed the crane operator at the site to remove the trunk of the oak tree involved by placing it in the back of a company bucket truck, and then hauled it away to be chopped up and disposed of. (See statement of Scott Schrade, attached hereto.)

This was done despite the fact that municipal and state investigators were at the scene; that the DEP was looking into whether the defendant company’s owner, Percy Ferris, Jr., should have his license suspended for violating state tree care regulations; that the state police were considering whether criminal negligence had occurred; and that a five year old child, who may well have a civil action available to his estate (in light, for example, of the disintegrated, canker and cavity filled branches on the ground and the leaning, obviously dead, leafless, “Charlie Brown looking” nature of the tree itself).

As such, to remove approximately twenty feet of the trunk, while authorities were still inspecting the tree parts and the site, without permission, was suspiciously irresponsible, since it makes one wonder that the tree company was hiding, especially in light of statements from Christine Berger of the DEP, Sergeant Michael Shanley of the Southington Police Department, and the crane operator himself, Scott Schrade (id.) that the trunk itself was obviously decayed and had hard metal spikes in it. (See also various photographs of the trunk revealing the spikes and its dangerous condition.)

In fact, the crane operator himself, when the trunk was cut into logs before transporting it, described large amounts of sawdust, water, spongy material and rot inside it.

Indeed, it must be highlighted that arborists know in recognized manuals such as Pirone’s, Chapter 9, it is emphasized that causes of tree failure are often best determined by examination of tree parts after tree failure occurs.

Additionally, an actionable claim of spoliation of evidence can also be made in regard to the fact that after the (rotted) trunk was removed, instead of just smoothing the top of the cut area and covering it, the defendant amusement park had the top of the (rotted and constricted) roots removed from the area and proceeded to cover it with large quantities of mulch and colored wood chips. This process, as well, denied the plaintiff the opportunity to inspect the condition of the roots and surrounding soil for signs of girdling and decay. (See photographs after the fact.)

C. Punitive Damages

The law in Connecticut is that punitive damages may be awarded in tort actions when the evidence shows a reckless indifference to the rights of others or a willful and wanton violation of those rights. Tessman v. Tiger Lee Construction Co., 228 Conn. 42, 54 (1993), quoting Collens v. New Canaan Water Co., 155 Conn. 477, 489 (1967). In this regard, where the conduct of the defendant appears to be at least in reckless disregard for the consequences it knew or should have known would result, and, if this element is present, an actual intention to do harm to the plaintiffs is not necessary. Collens, supra, at 490. Ordinarily such damages reflect the amount of the litigation expenses, less taxable costs. Triangle Sheet Metal Works v. Silver, 154 Conn. 116, 127 (1966); 22 Am. Jur. 2d 324, Damages, § 237; 25 C.J. S. 786, Damages, § 50. (Id).

Accordingly, if a jury were to find that spoliation of the tree trunk by Total Landscaping & Tree Service, or removal of part of the roots and subsequent covering up of the related soil area by the amusement park, demonstrated an intentional or reckless attempt to destroy or conceal relevant evidence, the Court could instruct the jury that there was a permissible inference as to the hazardous condition of the tree, and punitive damages could be awarded, as well, in such an instance. (Id).