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Fletcher v. Dorchester Mutual Insurance Company8/16/2002
Plymouth.
January 8, 2002.
Negligence, Spoliation of evidence. Practice, Civil, Preservation of evidence.
Civil action commenced in the Superior Court Department on April 17, 1998.
Motions to dismiss were heard by Richard F. Connon, J., and entry of separate and final judgment was ordered by him.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
The present appeal requires us to determine whether we should recognize a cause of action in tort for intentional or negligent spoliation of evidence. A Superior Court judge granted the defendants' motions to dismiss such claims, and the plaintiffs appealed. We transferred the case to this court on our own motion. For the following reasons, we conclude that there is no cause of action for spoliation of evidence and therefore affirm the judgment.
1. Facts and procedural background.
On April 4, 1995, five young children were trapped and severely burned in a tragic house fire in Scituate. Three of the children died; the two surviving children sustained permanent injuries. The house was owned by Stephen Littleton, who had leased the premises to the victims' family. In the immediate aftermath of the fire, the owner's insurer, the defendant Dorchester Mutual Insurance Company (Dorchester Mutual), retained an expert to investigate the fire scene. That expert, the defendant Richard Splaine, removed certain wiring components and fixtures from the remains of the building approximately two weeks after the fire.
The parents of the children injured and killed in the blaze brought suit against Littleton, alleging that he had failed to maintain the dwelling in a safe and habitable condition. Among the defects alleged was a faulty electrical system, along with inadequate fire detection devices, inadequate fire exits, and inadequate fire fighting equipment. In a separate action (later consolidated with the action against the owner), the parents brought suit against the electrical contractor responsible for the wiring installation.
In that underlying tort action, the parents filed a motion for sanctions, alleging that Splaine's removal of the electrical components from the scene had so altered them as to compromise the parents' ability to prove their claims. They requested that judgment be entered in their favor or, in the alternative, that the owner "be precluded from utilizing, commenting upon or offering any evidence spoiled by Defendants, including the insulation, circuit, switches and components removed, altered or modified by Defendant's experts or agents." Littleton argued in response that Splaine had retained the removed items, and that they were still available for trial with no prejudice to the parents' case. After an evidentiary hearing on the motion, the judge concluded that the plaintiff parents had "failed to prove that defendant has materially altered, damaged or destroyed any evidence in this case" and therefore denied the motion for sanctions.
Meanwhile, the parents had filed the present action against Dorchester Mutual and Splaine, alleging counts of negligence, "negligent spoilation of evidence," and "intentional spoilation of evidence" against each of them. As against Dorchester Mutual, the parents also alleged a violation of G. L. c. 93A and G. L. c. 176D stemming from the same "spoilation of evidence." In support of their negligence claim, the parents alleged that Dorchester Mutual and Splaine were negligent in their "failure to properly preserve and maintain the condition of the subject premises and its components, including the subject electrical circuit and its appurtenant
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