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October 12, 1993


Appeal from the Circuit Court of Franklin County. Honorable Lawrence O. Davis.

Kathianne Knaup Crane, Judge, Carl R. Gaertner, P.j., and Paul J. Simon, J., concur.

The opinion of the court was delivered by: Crane

Defendant, The Gates Rubber Company, Inc. , appeals the dismissal with prejudice of its cross-claim against defendant The Hartford Insurance Company for spoliation of evidence. Gates had alleged that it was entitled to damages because Hartford's employees had either negligently or intentionally lost or destroyed a part from a Gates-manufactured crimping machine which had allegedly caused plaintiff's injuries. The trial court found that the spoliation claim failed to state a cause of action which has been or will be recognized in this state.

We affirm the judgment of the trial court. We find the pleadings fail to allege a claim under the theories of intentional spoliation or common law negligence and therefore present no basis for determining whether a cause of action for intentional or negligent spoliation should be recognized in this state.

In May, 1986 plaintiff, Lawrence Russell Baugher, was injured during a work-related accident while an employee of SDC, Inc. As a result, Hartford, SDC's insurer, paid workers' compensation benefits to Baugher and became subrogated to the extent of its payments to any further recovery Baugher obtained from the accident. On January 21, 1988, Baugher filed a petition against Gates seeking damages for personal injuries. Baugher alleged that the accident was caused by a hydraulic hose improperly crimped to a coupling by a defective power crimp manufactured by Gates.

On December 18, 1990 Baugher amended his petition by adding Hartford as a defendant and asserted a claim for damages against Hartford, alleging negligent spoliation of evidence. On March 29, 1991 Gates filed a cross-claim against Hartford for damages, alleging intentional and negligent spoliation of evidence. Hartford moved to dismiss both Baugher's claim and Gates' cross- claim. On October 18, 1991, the trial court issued an order dismissing with prejudice all spoliation claims against Hartford. It subsequently made this order final for purposes of appeal. Baugher and Gates each filed a notice of appeal from this order. However, only Gates' attorneys filed a brief in which they identified themselves solely as Gates' attorneys and raised only points of error relating to the dismissal of Gates' cross-claim. No brief was filed by Baugher's attorneys. Baugher's appeal has thus been abandoned. *fn1

We recite the relevant facts as alleged in Gates' cross-claim and an incorporated affidavit. Hartford investigated Baugher's accident. During the course of that investigation, Mary Kopuster, a Hartford employee, obtained possession of the hose and coupling involved in the accident. While Hartford had possession of the hose and coupling, Gates informed Hartford that the hose and coupling were vital to Gates' defense in a separate wrongful death action filed by Brenda Huncovsky in St. Louis County. Hartford's employees agreed to preserve the evidence and produce it as necessary. Kopuster put the hose and coupling in a cardboard box and locked them in an evidence storage room at Hartford. She subsequently removed the box to produce the hose and coupling for inspection by Gates' attorney and another individual. An expert examined the coupling and concluded that Gates' power crimp was not defective, but the operator of the power crimp was negligent in crimping the hose and coupling. Following the attorney's inspection Kopuster placed the hose and coupling back in the box, sealed it, and put her name and the word "evidence" on the box. She kept the box in her office credenza in order to return it to the entity from which she had obtained it. In preparation for Hartford's move to another office location, the boxed hose and coupling were packed into another numbered box along with other items from Kopuster's desk and credenza. After the move, and again after being subpoenaed, Kopuster conducted an extensive search but could not find the hose and coupling.

Gates alleged in Count I of its cross-claim that Hartford's conduct was negligent and in Count II of its cross-claim that Hartford's conduct was intentional. Gates contended it was damaged because without the coupling it cannot obtain expert testimony, it has been deprived of an opportunity to fully defend itself and "may in the future" be deprived of an opportunity to prevail at trial in either the Baugher or Huncovsky actions and "may be forced to pay a settlement or a judgment against it."


Gates asserts the trial court erred in dismissing its cross- claim with prejudice because a cause of action for intentional or negligent spoliation of evidence does or should exist in this state and the petition therefore stated a claim for relief. Each of its points states a different reason why Missouri should recognize a cause of action in this case for intentional or negligent spoliation.

In reviewing a trial court's order dismissing a claim for which relief can be granted, we accept all properly pleaded facts as true, we give the pleadings their broadest intendment, and we construe all allegations favorably to the pleader. Stevenson v. City of St. Louis School Dist., 820 S.W.2d 609, 611 (Mo. App. 1991). However, we do not accept the Conclusions of the pleader. Id... . We consider any attached exhibits as part of the petition for all purposes. Davis v. Carmichael, 755 S.W.2d 679, 680 (Mo. App. 1988). Rule 55.12.


"Spoliation" is the destruction or significant alteration of evidence. See... Black's Law Dictionary 1401 (6th ed. 1990). In Missouri, if a party has intentionally spoliated evidence, indicating fraud and a desire to suppress the truth, that party is subject to an adverse evidentiary inference. Brown v. Hamid, 856 S.W.2d 51, 56-57 (Mo. banc 1993). However, Missouri has not recognized spoliation, either intentional or negligent, as the basis for tort liability against either a party or a non-party to the action in which the evidence was to be used. Gates asks us to hold that Missouri would recognize causes of action for both intentional and negligent spoliation. Before we can reach that issue, we must examine the theoretical basis for intentional and negligent spoliation as it has developed in other jurisdictions and determine whether the facts as pleaded would entitle Gates to relief under either theory.


Intentional Spoliation

We first address Gates' assertion that a claim for intentional spoliation of evidence in a prospective or pending lawsuit does or should exist in Missouri. Two jurisdictions, California and Alaska, have specifically recognized intentional spoliation of evidence as a tort.

The California Court of Appeals recognized this tort in Smith v. Superior Court For County of L.A., 151 Cal. App. 3d 491, 198 Cal. Rptr. 829 (1984). In Smith the plaintiff was injured when a wheel fell off a customized van and crashed into the windshield of plaintiff's vehicle. The van was towed to the customizer/dealer for repairs. The customizer/dealer agreed with plaintiff's attorney to maintain certain parts of the van pending further investigation. The plaintiff filed a products liability suit against the customizer/dealer seeking compensation for her injuries. The van parts were subsequently lost or destroyed making it impossible for plaintiff's experts to inspect or test the parts. The plaintiff amended her complaint against the customizer/dealer to add a claim for intentional spoliation of evidence. She alleged as damage the "significant prejudice" to her opportunity to obtain compensation for her physical and emotional injuries. 198 Cal. Rptr. at 832. The trial court sustained the customizer/dealer's demurrer on the grounds that such an intentional tort did not exist.

The court of appeals issued a writ of mandamus. Relying on California case law recognizing a cause of action for intentional interference with a prospective business advantage, the court held that a cause of action may be stated for intentional spoliation of evidence needed for a prospective or pending products liability suit. Id. at 836-37. It further held that a prospective civil action in a product liability case is a valuable "probable expectancy" that the court must protect from intentional interference. Id. at 837. ...

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