Justice McCAFFERY.
In this case, Appellants sued Appellees based on the destruction of personal property, to wit, a black nylon tree stand safety harness, or belt, that allegedly was crucial evidence in a separate civil action. The Pennsylvania State Police ("State Police") had seized this item during a criminal investigation of a suspicious death. A state trooper had agreed to retain the belt in the custody of the State Police, apparently for a longer period of time than permitted by internal State Police regulations, for Appellants' later use. However, the belt was destroyed before Appellants' counsel asked for its return. Appellants sued, and the trial court granted summary judgment to Appellees, which judgment the Commonwealth Court affirmed. The Commonwealth Court held, inter alia, that no cause of action exists against a third party—someone other than the original alleged tortfeasor—for negligent spoliation of evidence. We granted review, and now hold that Pennsylvania law does not recognize a cause of action for negligent spoliation of evidence.
Because this is an appeal from the affirmance of the grant of summary judgment, we view the record in the light most favorable to Appellants, as they were the non-moving parties. Liss & Marion, P.C. v. Recordex Acquisition Corp., 603 Pa. 198, 983 A.2d 652, 657 (2009). When so considered, the record reveals the following. Decedent, Daniel Pyeritz, left his brother's home near Markleysburg in Fayette County during the early morning hours of October 30, 2001, to go hunting. He drove his four-wheel drive vehicle into the woods, climbed up a tree to a tree stand approximately 15 feet above the ground, and lashed himself to the tree stand with the black nylon belt at issue here.
When they found Mr. Pyeritz's body, the searchers called the State Police, and Appellee Trooper Daniel Ekis ("Trooper Ekis") was assigned to the investigation. Trooper Ekis took the two pieces of the tree stand belt into custody and logged them into evidence at the State Police
An inquest was eventually held approximately one year later, in November 2002, after which the coroner's jury determined that the manner of death was an avoidable accident. Shortly after the coroner's jury rendered its verdict, still in November 2002, Appellants' counsel asked Trooper Ekis to keep the pieces of the belt in the evidence room, and Trooper Ekis agreed to the request. As Trooper Ekis testified at his deposition, "Well, I first said that you guys could have the evidence, and you [Appellants' counsel] said could we keep it at the barracks until you made a determination through the civil case, and I said we would keep it in the evidence room." Deposition of Trooper Daniel Ekis, 10/6/03, at 30. Trooper Ekis placed the pieces of the belt back in the evidence room at the Uniontown barracks, and made a notation on a clipboard in the evidence room where the belt was being stored that the belt was to be released either to Appellant Dawn A. Pyeritz or to her counsel. Id. at 31.
In June 2003, the Uniontown barracks were relocated to a new building. All of the evidence in the evidence room at that time, including the two pieces of the belt, was transferred to the new facility. At some point prior to this relocation but after having agreed to keep the belt in the evidence room, Trooper Ekis was transferred to a barracks in Waynesburg. As a result, the investigation into Mr. Pyeritz's death was reassigned to other troopers, with responsibility for the case eventually being given to Appellee Trooper James Custer ("Trooper Custer"). In July 2003, Trooper Custer, with the approval of Appellee Corporal James Caccimelio, destroyed the two pieces of the belt, presumably pursuant to the State Police Evidence Guidelines, which require that within three months after an investigation is completed, the investigating officer is to notify the custodial officer, who is to ensure that any property in State Police custody be returned to its owner, escheated to the Commonwealth, donated to the state treasury, or destroyed.
In August 2003, approximately ten months after the inquest, counsel for Appellant asked for the pieces of the belt and learned that they had been destroyed. All that remained were the photographs of the belt and two boxes in which the pieces of the belt had previously been stored, on which the names of two tree stand belt manufacturers had been written. Appellants filed a products liability suit in federal court in September 2003, against these two manufacturers. Appellants and the
In October 2003, prior to that settlement, Appellants commenced the instant action by filing a praecipe for writ of summons against the State Police and various troopers. In their single-count complaint filed on October 21, 2004, Appellants styled their action as one in negligence "for failure to preserve evidence necessary for plaintiffs' third-party claim." Appellants averred that they had suffered the following damages:
Complaint at ¶¶ 42, 45.
Appellants sought damages as follows:
Id. at pp. 13, 15.
In September 2006, Appellees moved for summary judgment, arguing that Pennsylvania does not recognize a cause of action for negligent spoliation of evidence. During the course of her presentation at the hearing on the summary judgment motion, Appellants' counsel argued that a bailment had been created, which gave rise to a special relationship which, in turn, would warrant holding Appellees liable for spoliation. Appellants' counsel stated it was Appellees' counsel's opinion that the only recovery available was $19.82, the value of the belt, and that such an opinion was "laughable." Notes of Testimony, 6/22/07, at 12. Appellants' counsel further argued that the value of the destroyed property was the value of the underlying lawsuit. Id. at 23-24. After considering Appellants' response to the motion and after hearing oral argument, the trial court entered summary judgment in Appellees' favor. Appellants appealed to Commonwealth Court, which affirmed. Pyeritz v. Pa. State. Police, 956 A.2d 1075 (Pa. Cmwlth. 2008).
Appellants sought allowance of appeal, and we granted review of the following issue:
Our standard of review of the grant of summary judgment is de novo and our scope of review is plenary. Liss & Marion, supra at 657. A motion for summary judgment is properly made if "there is no genuine issue of any material fact as to a necessary element of the cause of action." Pa.R.C.P. 1035.2(1). Summary judgment may be entered only when, even after examining the record in the light most favorable to the non-moving party, and resolving of all doubts as to the existence of a genuine issue of material fact against the moving party, the moving party is clearly entitled to judgment as a matter of law. Liss & Marion, supra at 657. The grant of summary judgment may be reversed only if the lower court committed an error of law. Id.
"Spoliation of evidence" is the non-preservation or significant alteration of evidence for pending or future litigation.
A cause of action in negligence requires a showing of four elements: (1) the defendant had a duty to conform to a certain standard of conduct; (2) the defendant breached that duty; (3) such breach caused the injury in question; and (4) the plaintiff incurred actual loss or damage. Krentz v. Consolidated Rail Corp., 589 Pa. 576, 910 A.2d 20, 27 (2006). The duty element requires us to make a policy judgment whether it is in the public interest to impose damages on those who have failed to conform their behavior to a particular standard. See Sinn v. Burd, 486 Pa. 146, 404 A.2d 672, 681 (1979) ("In determining the existence of a duty of care, it must be remembered that the concept of duty amounts to no more than `the sum total of those considerations of policy which led the law to say that the particular plaintiff
Here, the first two factors militate against the imposition of a duty. First, the relationship between the parties was grounded in a request by counsel for one party to an agent of the other. The acquiescence to the request resulted in the gratuitous acceptance of control over certain personal property. While it may be understandable for members of an accident victim's family to rely upon the representations of a member of the Commonwealth's state police force, such reliance is not necessarily justifiable as a matter of law so as to constitute a partial basis for imposing a duty upon the Commonwealth itself. Further, because it was Appellants' counsel who directly engaged with a state trooper in securing the state police barracks as the repository of the evidence, a greater exercise of care on the part of Appellants' counsel may have been warranted in determining the limits of a reasonable expectation of retention of the evidence. Secondly, with respect to the utility of the conduct in question, Appellees did retain the evidence through the inquest and for an additional nine months. Their conduct in this regard served the public interest in the prompt and thorough investigation of a possible crime. The expectation that the state police could be utilized to safeguard evidence that was no longer needed for criminal investigative purposes was misplaced and served no legitimate police function.
Turning to the third, fourth, and fifth factors, upon review and consideration, we conclude that, on balance, the negative consequences of imposing a duty not to commit negligent spoliation of evidence outweigh any benefits the recognition of this tort might afford. Although it may have been reasonably foreseeable to the troopers that the loss of the evidence might harm Appellants in their quest for damages in a civil lawsuit against the belt's manufacturer, we hold that as a matter of public policy, this is not a harm against which Appellees should be responsible to protect. The primary reason is that the tort would allow the imposition of liability where, due to the absence of the evidence, it is impossible to say whether the underlying litigation would have been successful. It could very well be true in this case, for example, that if the belt had not been destroyed, it would have undermined Appellants' suit against the manufacturers and they would not have realized even the $200,000 settlement they now have in hand. Of course, in some cases, one party may have already finished testing the evidence by the time it is destroyed, or as here, photographs or other representations of the evidence may still exist. However, depictions are an inadequate substitute for the evidence itself, as other parties cannot inspect and test the evidence independently, which deprives them of the raw material they need to mount a potentially successful claim or defense. If we were to recognize the tort, the inability of the parties to assess meaningfully the impact of
To the extent recognition of the tort would encourage the preservation of evidence, that benefit is outweighed by the financial burden the tort would impose. If it were recognized, businesses and institutions would be forced to preserve evidence, at considerable expense, for a myriad of possible claims that might never be brought. Moreover, this goal can be achieved under existing law. Although Pennsylvania law does not permit an equity action for discovery, see Cole v. Wells, 406 Pa. 81, 177 A.2d 77, 80 (1962), parties to pending and prospective suits, upon an appropriate showing, may be able to obtain injunctive relief to preserve evidence. See generally Capricorn Power Co., Inc. v. Siemens Westinghouse Power Corp., 220 F.R.D. 429, 433-34 (W.D.Pa. 2004) (applying federal law and listing factors for obtaining such relief). In addition, parties to suits have an avenue to obtain physical evidence from non-parties, even pre-complaint, under the Rules of Civil Procedure. See Pa.R.C.P. 4003.8, 4009.21-4009.27.
Although the question we consider here is one of first impression for this Court, our holding is supported by our decisions in related contexts, by the decisions of lower Pennsylvania courts, and by the decisions of other states' courts. For example, in Bortz v. Noon, 556 Pa. 489, 729 A.2d 555, 564-65 (1999), we refused to require a real estate agent, who had merely relayed the results of a home inspection, to investigate the reliability of the inspection. Similarly, in Stupka v. Peoples Cab Co., 437 Pa. 509, 264 A.2d 373, 374 (1970), we rejected an invitation to impose liability on a taxi driver, whose passenger was injured in an accident caused by another driver, for failing to obtain the name or license number of the other driver. Likewise, in Yania v. Bigan, 397 Pa. 316, 155 A.2d 343, 346 (1959), we held that a witness to a drowning, who was not a relative of the victim, had no duty to rescue the victim. And in Ginsburg v. Halpern, 383 Pa. 178, 118 A.2d 201, 202 (1955), we declined to recognize a cause of action in tort for perjury or conspiracy to commit perjury, which essentially was a refusal to permit the imposition of liability on a party for having altered or modified evidence.
Likewise, our lower appellate courts have refused to recognize the tort of negligent spoliation. The Commonwealth Court rejected the tort in this case, and the Superior Court determined the tort was untenable, absent a "special relationship" between the plaintiff and defendant, in Elias v. Lancaster Gen. Hosp., 710 A.2d 65, 69 (Pa.Super. 1998). Although we disagree with the Superior Court that a "special relationship" can be sufficient to impose a duty not to commit negligent spoliation, our decision here still finds support in the Elias court's general rule that no such duty can be imposed in tort.
Additionally, as noted by the Massachusetts Supreme Judicial Court in Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 773 N.E.2d 420, 424 & n. 9 (2002) (citing cases), the overwhelming majority of other states that have considered the tort have rejected it. Since Fletcher, additional jurisdictions have considered the tort, with the majority continuing to reject it. See Lips v. Scottsdale Healthcare Corp., 224 Ariz. 266, 229 P.3d 1008, 1009 (2010) (no cause of action for third-party negligent spoliation of evidence); Downen v. Redd, 367 Ark. 551, 242 S.W.3d 273 (2006) (same); Ortega v. City of New York, 9 N.Y.3d 69, 845 N.Y.S.2d 773, 876 N.E.2d 1189, 1197 (2007) (same, stating "[w]e are not persuaded that it would be sound public policy to create a new tort that shifts liability from responsible tortfeasors to
In summary, we conclude that to date, Pennsylvania law has not recognized a cause of action for negligent spoliation of evidence, and we decline to do so now. Because the tort would permit the imposition of liability based on speculation, would create the potential for the proliferation of litigation, and would confer a benefit already sufficiently achievable under existing law, it is in the overall public interest not to recognize the tort.
Justice GREENSPAN did not participate in the decision of this case.
Chief Justice CASTILLE and Justices SAYLOR and BAER join the opinion.
Justice EAKIN files a concurring opinion.
Justice TODD files a concurring opinion.
Justice EAKIN, concurring.
While I concur with the majority's decision to affirm the Superior Court, I do not believe the analysis of negligent spoliation of evidence effectively disposes of all the issues on which we granted allocatur, namely:
Pyeritz v. Pa. State Police, 600 Pa. 640, 969 A.2d 1183, 1184 (2009) (per curiam).
The Commonwealth enjoys immunity from suit unless the injury in question lies within one of the exceptions provided by the legislature. Pa. Const. art. I, § 11; 42 Pa.C.S. §§ 8521-22. Appellant contends this suit is within the personal property exception, which provides the sovereign immunity defense may not be applied to claims for damages caused by:
It is well established that the personal property exception only applies where the property itself causes the injury. See, e.g., Pennsylvania State Police v. Klimek, 839 A.2d 1173, 1175 (Pa.Cmwlth. 2003); Bufford v. Pennsylvania Department of Transportation, 670 A.2d 751, 753 (Pa. Cmwlth. 1996); Sugalski v. Commonwealth, 131 Pa.Cmwlth. 173, 569 A.2d 1017, 1019 (1990); Nicholson v. M & S Detective Agency, Inc., 94 Pa.Cmwlth. 521, 503 A.2d 1106, 1108 (1986). That is not what occurred in this case. While the belt may have been involved in decedent's death, the belt was not in the care and custody of the Commonwealth at that time. The instant suit alleged injury to potential economic recovery from the destruction of the belt fragments, not the injury resulting in the death of decedent. It was not the property itself, but rather the alleged mismanagement of the property that caused the injury complained of; thus, the personal property exception to sovereign immunity does not apply.
Appellant's bailment argument, which I believe is separate from the negligent spoliation theory, must also fail.
Price v. Brown, 545 Pa. 216, 680 A.2d 1149, 1151-52 (1996) (citations omitted).
In this case, the bailment relationship could not be established because the trooper had no authority to bind the Commonwealth in contract.
Central Storage & Transfer Co. v. Kaplan, 487 Pa. 485, 410 A.2d 292, 294 (1979) (citations omitted). The Commonwealth Court noted State Police disposition of property regulations did not authorize Trooper Ekis' decision to retain the belt fragments, and actually forbade such an act. Pyeritz v. Pa. State. Police, 956 A.2d 1075, 1082 n. 2 (Pa.Cmwlth. 2008). The fact that Trooper Ekis had apparent authority to keep the evidence is not dispositive; he had no actual authority to obligate the State Police to keep the evidence for appellant. As such, appellant's bailment claim fails.
Finally, there is no need to recognize a separate cause of action for negligent spoliation. Importantly, the issue on which we granted allocatur implies recognition of a general cause of action for negligent spoliation of evidence. Within the duty analysis for such a tort, the parties' relationship, conduct utility, and the foreseeability
The personal property exception to sovereign immunity is inapplicable, Trooper Ekis had no authority to obligate the Commonwealth to preserve the evidence, and there is no need to create a separate cause of action for negligent spoliation of evidence. There being no dispute about the material facts, I agree the trial court did not err in granting summary judgment, and concur with the majority's decision to affirm the Superior Court.
Justice TODD, concurring.
I join the Majority Opinion with one exception. I disagree with the majority's suggestion that Appellants' counsel, in relying on the state trooper's agreement to retain the evidence at the state police barracks, somehow lacked due care. See Majority Opinion at 692-93. Indeed, I believe counsel can and should be able to reasonably rely on the assurances of law enforcement personnel. Nonetheless, I agree, for purposes of this question in tort, the state trooper's assurances do not control the issue of the Commonwealth's liability.
