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Pham v. Contico International3/22/2000
AFFIRMED
Does a workers' compensation claimant have a cause of action in tort against his employer for spoliation of evidence to be used against a third party in a tort suit? The district court said no, and granted the defendant employer's Motion for Summary Judgment. This appeal follows.
Plaintiff, Hong Pham, alleges in his petition that he was injured in the course and scope of his employment with Alpine Plastics, Inc., on June 19, 1997, when he leaned against a Contico collapsible crate that gave way. Pham fell against the other side of the crate, sustaining severe injuries. According to Pham, his employer returned the crate to regular warehouse use after his accident and its specific identity was not preserved, which prevents his use of it as evidence in a tort lawsuit against Contico International, Inc., the manufacturer of the crate, and other defendants. Pham sued Advance Polybag, Inc. and Alpine Plastics for spoliation of evidence based upon their failure to set the crate aside for his use as evidence.
Alpine Plastics filed an Exception of No Cause of Action, asserting, as plaintiff's employer, the statutory immunity against tort suit afforded by LSA-R.S. 23:1032. Apparently the trial court did not rule on that pleading. Alpine Plastics and Advance Polybag then filed a joint Motion for Summary Judgment, arguing first that the law does not recognize an employee's claim against an employer for spoliation of evidence (essentially reiterating their Exception of No Cause), and in the alternative, if the law did recognize such a claim, then such a claim must state an intentional tort and not negligence, and that Pham's petition did not plead an intentional tort. In their memorandum in support, Alpine again asserted employer statutory immunity, and Advance Polybag alleged that they were a separate corporate entity retained by Alpine Plastics to perform various administrative functions at the warehouse, and that Advance Polybag did not employ Mr. Pham, nor did it exercise any control of the warehouse activities. The motion further alleged that the crate had not been destroyed, but merely cannot be specifically identified and continues to be in service at the warehouse along with 24 other collapsible crates that are indistinguishable. All of the crates are available for plaintiff's inspection.
The Motion was submitted on briefs. The trial court granted the Motion for Summary Judgment without written reasons, stating merely that Pham had "no cause of action" and the two defendants were dismissed. The substance of defendants' arguments, and what the trial court found in its judgment, is that "no cause of action exists" against defendants for spoliation of evidence. Therefore, the grant of summary judgment is more akin to a grant of an Exception of No Cause of Action, and we will conduct our analysis in this fashion.
In this case, the issue of law is whether, and if so, to what extent, an employer may be held liable in tort for its failure to preserve evidence that is relevant to the employee's suit against a third party, or whether an employer's statutory immunity, granted by LSA-R.S. 23:1032, precludes this tort suit.
The theory of "spoliation of evidence" refers to an intentional destruction of evidence for purpose of depriving opposing parties of its use. Hooker v. Super Products Corp., 98-1107 (La. App. 5 Cir. 6/30/99), 1999 WL 459360; Kammerer v. Sewerage and Water Board of New Orleans, 93-1232 (La. App. 4 Cir. 3/15/94), 633 So.2d 1357. The tort of spoliation of evidence has its roots in the evidentiary doctrine of "adverse presumption," which allows a jury instruction for the presumption that the destroyed evidence contained informat
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