Winston Brierly v. Cynthia Haas et al. (2015)

MEMORANDUM OF DECISION ON DEFENDANT QUALITY LINES, LLC.'S MOTION TO STRIKE REVISED COMPLAINT (# 187), and PLAINTIFF'S OBJECTION THERETO (# 199);  ON DEFENDANT ERIC and CYNTHIA HAAS'S MOTION TO STRIKE REVISED COMPLAINT (# 193), and PLAINTIFF'S OBJECTION THERETO (# 198), ON QUALITY LINES, LLC'S MOTION FOR SUMMARY JUDGMENT (# 203), and PLAINTIFF'S OBJECTION THERETO (# 213), and ON ERIC and CYNTHIA HAAS'S MOTION FOR SUMMARYJUDGMENT (# 200), and PLAINTIFF'S OBJECTION THERETO (# 208)

Plaintiff, whose principal claim is that he was injured in a single vehicle motor vehicle accident, has joined three counts accusing various defendants of spoliation of evidence.   Each of these defendants has moved, first, to strike the counts in spoliation.   Before the court ruled on those motions, however, each also filed a motion for summary judgment addressing the same substantive issues.   Plaintiff objects to all four motions.   The parties have thoroughly briefed the issues and argued their positions to the court on all four motions on April 20, 2015.

Plaintiff's revised complaint alleges that on August 2, 2012, on Route 6 in the town of Chaplin, he was driving a 2005 Dodge truck which was towing a loaded trailer when it ran off the road and hit a tree.   Defendants Eric and Cynthia Haas were the owners of the truck and trailer, but plaintiff claims that Quality Lines, LLC, was in possession of one or both pursuant to an arrangement with the Haases;  additionally, he claims that the LLC was responsible for placing the cargo load upon the trailer.   The two individuals, in turn, were the owners of the limited liability company.   Plaintiff alleges, inter alia, that the volume of the trailer's load and how it was stacked were contributing factors in the causation of the collision in which he sustained serious personal injuries.

I The Motions to Strike

The spoliation claims sound in counts six, seven, and eight.   Counts six and seven, respectively, claim that Cynthia Haas and Eric Haas, alerted not later than August 22, 2012, to the plaintiff's claim of injuries sustained in the August 2 collision, nevertheless caused the truck to be sold at auction and subsequently destroyed.   According to plaintiff, this precluded his examination of the vehicle to determine how the collision occurred.   Count eight expresses his claim that Quality Lines, LLC, was also a spoliator, both by virtue of its participation in the disposition of the truck, and by its disposal of the trailer's cargo so as to obscure the details of its loading.¹

A. Legal Standard

Practice Book § 10–39 permits a party to move to strike all or part of a pleading on the ground that the pleading is legally insufficient to state a claim upon which relief can be granted.   Briefly stated, “[a] motion to strike attacks the legal sufficiency of the allegations in a pleading ․ In reviewing the sufficiency of the allegations in a complaint, courts are to assume the truth of the facts pleaded therein, and to determine whether those facts establish a valid cause of action ․ [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder”;  Kumah v. Brown, 307 Conn. 620, 626 (2013).   But a motion to strike may properly be granted “if the complaint alleges mere conclusions of law that are unsupported by the facts alleged;” Santorso v. Bristol Hospital, 308 Conn. 338, 349 (2013).

B. Specifics of the Quality Lines Motion to Strike Count Eight

Quality Lines' motion asserts, first, that plaintiff has pled what amounts to a claim of negligent spoliation, which Connecticut law does not recognize as a cause of action;  second, that the count lacks essential allegations necessary in the pleading of a claim of intentional spoliation, particularly with regard to bad faith;  and, finally, it attacks plaintiff's claim for punitive damages as having no foundation absent the eighth count.

The court will first deal with the question of whether the revised complaint adequately pleads the elements of intentional spoliation;  if it does, the question of whether or not to recognize negligent spoliation is moot.   In Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225 (2006), which recognized an independent cause of action for intentional spoliation of evidence, the Court at 243 defined that tort as “the intentional destruction, mutilation, or significant alteration of potential evidence for the purpose of defeating another person s recovery in a civil action”;  and at 244–45 identified the elements of the tort as encompassing “(1) the defendant's knowledge of a pending or impending civil action involving the plaintiff, (2) the defendant's destruction of evidence;  (3) in bad faith, that is, with intent to deprive the plaintiff of his cause of action;  (4) the plaintiff's inability to establish a prima facie case without the spoliated evidence;  and (5) damages.”

The LLC's memorandum of law supporting its motion directs the court's attention to elements (1) and (3).   As to the first, it maintains that the complaint fails to allege specifics of the company's “knowledge of a pending or impending civil action” on the defendant's part.   As to the latter, it protests that plaintiff has failed to set forth any specific acts of bad faith upon which that element can be premised.

1) Has the “Knowledge” Element Been Adequately Pled?

Plaintiff's eighth count is replete with allegations of notice and knowledge on Quality's part, not all set forth in chronological order.   He alleges in paragraph 10 of that count that on “August 22, 2012, Defendant ․ received a notice instructing Defendant ‘that the truck and trailer involved in (sic) the date of loss constitutes evidence.”   Succeeding paragraphs go on to allege that defendant was thereby put on notice to take “any and all measures ․ to preserve the evidence;’ “ (¶ 11);  that “Defendant was on notice of its ‘responsibility to preserve the truck and trailer so as to allow for the inspection of the truck and trailer in connection with the litigation that will be arising out of this claim;’ “ (¶ 12);  and that “Defendant was notified to contact Plaintiff's Counsel immediately if Defendant did not have control and/or possession of the vehicle and/or trailer and provide contact information for the entity or individual with control and/or possession of the vehicle and/or trailer;” (¶ 13).   Paragraph 14, however, implies that the defendant had already disposed of the vehicle and the contents, at some unspecified time “following the August 2, 2012 accident”—that is, potentially, before the August 22 notices were delivered.   To further confuse one trying to understand what material impact the delivery of notice has upon this defendant's knowledge of his claim, his paragraphs 15 through 20 summarily assert that the defendant knew of the pending or impending civil action prior to the destruction of the evidence in question, but destroyed the evidence notwithstanding that knowledge.

In recognizing the tort of intentional spoliation in Rizzuto, the Supreme Court included in footnote 7 a rather lengthy digression on how a plaintiff may successfully plead the knowledge element of this tort.   In that note the Court instructed that our law requires courts to read a complaint “in its entirety [and] in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties,” and “to construe pleadings broadly and realistically, rather than narrowly and technically;” it further directed that “if facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  Rizzuto presented a chronology quite different from and simpler than that of the instant case.   The injury to plaintiff occurred in 1996, he commenced his lawsuit in 1997, and the targeted evidence was destroyed in 1998;  it is thus an inescapable conclusion that the defendant knew of the civil action's pendency when the evidence vanished.   Here, the sequence of events following the accident instead appears to be first, knowledge of claim (however derived), followed next by the spoliation, and then by the giving of formal notice to this defendant of the plaintiff's claim.   All plaintiff is required to prove, precisely, is that the knowledge element preceded the spoliation, and he has alleged as much.²  The fact that he has also alleged a formal notice, perhaps delivered to Quality after the evidence was disposed of, puts him a step further than he needs to go and introduces a confusion that might have been avoided.

If this surplusage rendered defendant unable to answer to the eighth count, its remedy would have been to file a request to revise;  instead, it has filed this motion attacking not the clarity but the sufficiency of the pleading.   The imprecise temporal allegations of the eighth count do not negate the premise that Quality had “knowledge of a pending or impending civil action involving the plaintiff” at the time it disposed of the evidence indicated, and the allegations of the eighth count sufficiently allege that element to survive a motion to strike.   Whether or not those allegations can be proven, of course, awaits another day.

2) Has “Bad Faith” Been Adequately Pled?

As to the bad faith component, Quality claims that plaintiff failed to include among the multiple paragraphs of this count any express examples of behavior indicating that Quality acted in that nefarious mental state.   What he does allege, in paragraph 16, is that this defendant “discarded the contents of the trailer with intent to deprive the plaintiff of his cause of action,” and, in 17, that “[a]n inspection of the contents of the trailer is necessary to prove a defect the trailer was overloaded (sic) and was the proximate cause of the Plaintiff's accident on August 2, 2012.”   Paragraphs 20 and 21 make parallel allegations with respect to the truck.

The Rizzuto opinion directs that vis-a-vis this tort, “the intent to deprive the plaintiff of his cause of action” constitutes the requisite bad faith.³  Paragraphs 16 and 20 of the amended complaint include this language.   The act that proves this mental state is the disposition itself, as opposed to some imaginable contemporaneous hidden motive.

Several judges of this court have denied motions to strike which claimed that the plaintiff had failed to allege independent acts of bad faith on their part.   The court in Diana v. NetJets Services, Inc., 50 Conn.Sup. 655 [44 Conn. L. Rptr. 696] (2007), noting how closely its plaintiff's language hued to that employed and approved in Rizzuto, held that an allegation of intentional destruction of evidence with intent to impede a cause of action suffices.   In Hollingsworth v. Nestle Purina Petcare Co., Inc., Superior Court, judicial district of Windham, D.N. CV09 6000817 (July 21, 2010;  Riley, J.) [50 Conn. L. Rptr. 327], the court held that the aspect of bad faith was supplied by the allegation that the spoliation was intentional, relying upon footnote 7 in Rizzuto.   Accord, Basso v. Boston Scientific Corp., Superior Court, judicial district of Fairfield, D.N. CV07 6001429S.  (Oct. 6, 2008;  Hiller, J.) [46 Conn. L. Rptr. 447];  Koozmitch v. South Kendall Properties, Superior Court, judicial district of New London, D.N. CV07 5007155 (June 25, 2010;  Martin, J.);   and Krayeske v. Boyle, Superior Court, judicial district of Hartford, D.N. CV13 5036724 (Sept. 11, 2013;  Peck, J.) [56 Conn. L. Rptr. 816].

Quality relies extensively and exclusively upon the dissimilar case of Cambridge Mut. Fire Ins. Co. v. Fox Heating Service, Inc., Superior Court, Tolland Judicial District, D.N. CV13 6006920 (March 11, 2014;  Bright, J.) [57 Conn. L. Rptr. 790].   The issue before that court was what allegations of bad faith sufficed in pleading a third-party spoliation claim, that is, one brought against a repair company which had disposed of an allegedly defective water heater before the plaintiff could inspect the device to determine if a claim would lie against the manufacturer.   Significant to the holding that bad faith had not been adequately pled were the court's observations that the complaint set forth no facts indicating the relationship between the contractor and the manufacturer, no indication how the contractor benefitted from the device's unavailability, nor any claim that it had any knowledge of plaintiff's potential products liability action.   Here, where Quality is separately charged with negligence for overloading the trailer, and its principals with knowledge of mechanical defects in the truck that was hauling it, its decision to dispose of the items before plaintiff had an opportunity to inspect comes before the court in a different light and is better measured by the Rizzuto standard.   By that standard, plaintiff's eighth count does not fail to allege the bad faith element.

Since plaintiff has adequately pled intentional spoliation as to Quality, the court need not weigh in on its claim that a cause of action for negligent spoliation is not cognizable.   Quality also takes aim at plaintiff's claim for punitive damages, on the basis that such a claim cannot be made on the strength of a negligence action.   Quality made no argument that punitive damages may not be awarded if intentional spoliation is found, and thus the propriety of that claim for relief is not before this court at this time.

Quality's motion to strike (# 187) is denied, and the objection thereto (# 199) is sustained.

C. Specifics of the Haas Motion to Strike

The Haas defendants' motion to strike counts six and seven also claims a two-part insufficiency in plaintiff's statement of the elements of spoliation.   First, they make a claim identical to Quality's arguments as to the lack of an express allegation of bad faith.   They adopt the LLC's brief on that score, and the court will rule in that regard as it did above.

The individuals further contend, however, that counts six and seven fail to sufficiently plead the fourth element of the Rizzuto formulation, in that plaintiff has not stated that the absence of the inspection of the truck or trailer or cargo has deprived him of the ability to make out a prima facie case of their negligence.   The entirety of their argument for this position is contained in their memorandum's one-paragraph advertence to Rizzuto:

In Rizzuto, the majority expressly held that in order to prove the spoliation of evidence was the proximate cause of harm, the plaintiff must prove that the defendants' intentional, bad faith destruction of evidence rendered the plaintiff unable to establish a prima facie case in the underlying litigation.  Rizzuto, 280 Conn. at 246.   In so holding, the court reasoned that it would not require proof, in this context, that the plaintiff had a probability of success in the underlying litigation.   Id., fn 13.   Instead the proximate causation element of the claim would turn on proof the plaintiff had a complete inability to litigate the cause of action—as the case would not have survived summary judgment.  Id., 280 Conn. At 246, quoting Smith v. Atkinson, 771 So.2d 429, 434 (Ala.2000) (“in order for a plaintiff to show proximate cause, the trier of fact must determine that the lost or destroyed evidence was so important to the plaintiff's claim in the underlying action that without that evidence the claim did not survive or would not have survived a motion for summary judgment”).  (Emphasis in original.)

Precisely what plaintiff has alleged as to the preclusive effect of evidence spoliation on the part of the defendants Haas is set forth in paragraphs 32 and 33, of count six as to Cynthia, and count seven as to Eric. The core of these paragraphs is that (¶ 32) “defendant sold the truck with the intent to deprive plaintiff of his cause of action,” and (¶ 33), that “inspection is necessary to prove a defect existed and that the defect was a proximate cause of [the accident].”   Does this formulation fulfil the requirement of pleading that any spoliation rendered the plaintiff unable to establish a prima facie case without the spoliated evidence?

The Diana decision came down shortly after the Rizzuto decision was announced.   Diana, injured at an airport, sued a number of parties in negligence, and at least one of them, Atlantic Aviation Flight Services, Inc., on a spoliation count.   Atlantic moved to strike both on the theory that as a third-party spoliator ⁴ it could not be sued in this state on that theory, and that, in any event, Diana had not sufficiently stated a claim for spoliation against it.   The bulk of the decision addresses the first issue and is not pertinent here.   On the very point now before this court, however, the Diana court at 678 decided that plaintiff's allegations that Atlantic's actions (which apparently obscured the identity of certain witnesses, or potential parties) had “damaged” his case, such that he “may not be able to prove [his] prima facie case in negligence” were sufficient to survive a motion to strike.   It reached that conclusion by noting how closely Diana's allegations mirrored those deemed sufficient in Rizzuto.   In the present case, plaintiff's choice of words diverges from the Rizzuto formulation.   By alleging, however, that the nonavailability of evidence leaves him unable to prove that a defect proximately caused the accident, he has at least implied that the disposal of that evidence has damaged his case, and that he therefore may not be able to prove negligence.  Diana rebuffed a challenge to the sufficiency of allegations of “damage” to plaintiff's case, and an allegation that the plaintiff thereby “may” not prevail;  in doing so, it rejected the proposition that a spoliation plaintiff is required to plead that the spoliation has absolutely annihilated his potential to succeed on his underlying negligence claim.

Similarly, in Green–Pinto v. OR & L Facility Services, LLC, Superior Court, judicial district of New Haven, D.N.CV12 6027983 (December 24, 2012, Zemetis, J.), the court rejected a motion to strike which raised a related premise, specifically an argument that the pendency of an underlying negligence action inescapably renders the fourth element of a spoliation claim unprovable.   Indicating that the Supreme Court has “decline[d] to require a spoliation plaintiff to pursue a futile lawsuit to establish a causal nexus between a defendant's alleged spoliation of evidence and the failure of the underlying action,” the court held that “the plaintiff may bring a spoliation claim concurrently with the underlying action ․ [R]equiring a plaintiff to pursue and to lose the underlying litigation prior to bringing a spoliation claim is too harsh and ignores the plaintiff's interest in securing a reasonable recovery for the alleged loss of the underlying action,” citing Rizzuto.   See, also, Koozmitch, supra, in which the court allowed a spoliation claim to be pursued along with an underlying slip and fall action, albeit without specifically discussing this fourth element.

Finally, in Prada v. Bova, Superior Court, judicial district of Stamford–Norwalk at Stamford, D.N. CV12 6014139 (January 30, 2013, Adams, J.T.R.) (55 Conn. L. Rptr. 451), the court denied a motion to strike a spoliation claim related to an underlying negligence action where the defendant contended that the simultaneity of these claims required the spoliation claim to be stricken.   The court opined that it “would be improper to strike the claim at this time, because in order to determine whether a prima facie case could be established without [the missing evidence], all the evidence the plaintiff has against the defendant must be assessed.” ⁵

The Rizzuto decision cited with approval the case of Coleman v. Eddy Potash, Inc., 120 N.M. 645 (1995), for the principle articulated therein at pages 649–50:  an allegation “that defendant ‘acted intentionally’ and ‘such acts were designed to disrupt [the] plaintiff's case’ ․ together with allegations that establish causation and damages, are sufficient to give notice of the [the plaintiff's spoliation claim] and legally sufficient to state a claim for relief.'  “ Considering that standard, and the above discussion of how other superior court decisions have handled challenges to the sufficiency of pleading the fourth element of a spoliation count, this court concludes that plaintiff has adequately even if taciturnly met his burden in this case.

Accordingly, the Haas motion to strike (# 193) is denied, and the objection thereto (# 198) is sustained.

II. The Motions for Summary Judgment

A. Legal Standard

When ruling upon a motion for summary judgment, a trial court must adhere to the process recently articulated in Marinos v. Poirot, 308 Conn. 706, 711–12 (2013):

Practice Book § 17–49 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”   A party moving for summary judgment is held to a “strict standard.”   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § 17–45 (citations omitted).

In application of that process, the court requires of the moving party a showing excluding any real doubt as to any issue of material fact as to its right to a judgment on the allegations as they presently stand, and, if the moving party makes at least that prima facie showing, then each opposing party must show that there is evidence to establish that material facts are genuinely disputed and cannot be resolved summarily.

B. Common Grounds of the Defendants' Motions

The court will first respond to an issue raised both by the company and by the Haas defendants as well.   Understanding this issue in proper context requires some information as to the previous history of this case.

In July of 2014, there was pending in this action an amended complaint which plaintiff had filed on April 24, 2014 (“the first amended complaint,” # 138).   That “first amended complaint” contains only five counts;  counts one and two, as to Cynthia and Eric, respectively, allege their negligence, and counts three and four reckless conduct on their part.   Count five alleges negligence on the part of Quality Lines.   These five counts appear to be exact earlier versions of the first five counts of the currently operative complaint.

On July 23, 2014, Quality moved for summary judgment (# 146).   On July 31, the Haas defendants also moved for summary judgment (# 148).   Prior to any hearing on those motions, however, plaintiff, on September 16, 2014, filed a “second amended complaint” (# 160), in which he introduced the concept of spoliation of evidence by virtue of counts six through eight.⁶  In a December 18, 2014, memorandum of decision, the court (Calmar, J.) noted the existence of the second amended complaint with its additional counts, and proceeded to rule upon the motions notwithstanding the amendment, since the issues involving the five counts in question remained unaltered by the new material.   Its ruling, however, expressed its intention that “[t]he claim of spoliation will be determined at the time of trial” (fn.3).

By their two 2014 motions, defendants advanced two discrete arguments as to why summary judgment was appropriate.   Quality maintained that because plaintiff had no expert to establish that the vehicle defects of which he complained even existed, his fifth count could not go to the jury.   The Haases contended that no evidence adduced via discovery established any causal connection between their behavior and the accident, and thus counts one through four ought similarly to be disposed of.

Substantively, Judge Calmar's ruling was quite succinct.   Noting that plaintiff had pled a negligence action against Quality, but that it had relied upon products liability cases in formulating its defense, he acknowledged the general reluctance of courts to resolve negligence claims summarily.   Recently, for instance, as expressed in Mott v. Wal–Mart Stores East, LP, 139 Conn.App. 618, 631 (2012), “we have been reminded that ‘[s]o extreme a remedy as summary judgment should not be used as a substitute for trial or as a device intended to impose a difficult burden on the non-moving party to save his [or her] day in court unless it is clear that no genuine issue of fact remains to be tried ․ A judge's function when considering a summary judgment motion is not to cull out the weak cases from the herd of lawsuits waiting to be tried;  rather, only if the case is dead on arrival, should the court take the drastic step of administering the last rites by granting summary judgment.’  “ Since some of plaintiff's allegations could be understood by a lay person without the assistance of an expert, Quality's argument was deemed to be wanting.

As to the individual defendants' contention that no causal link between their behavior and the accident could be established, he held that plaintiff had established to his satisfaction that a general issue of material fact existed—i.e., whether or not these defendants knew of the problems with the truck prior to the accident—and that this detail could not be decided before trial.   What he did was to heed Mott 's directive to allow the jury to perform its function, and thus allow plaintiff's claims to live to another day, even if on life support.

On February 23, 2015, the defendants Haas filed the present motion for summary judgment on spoliation counts six and seven (# 200), as did Quality also, with respect to count eight, by motion dated February 25 (# 203).   These motions follow yet another iteration of the complaint, this one captioned “revised complaint” (# 184), filed on December 23, 2014.   This currently operative complaint rephrases the prior complaint's accusations of spoliation in counts six through eight, but the material of its first five counts appears unaltered from earlier versions.

The instant motions join in claiming that plaintiff cannot be allowed to proceed on his spoliation counts because the court's disposition of the first summary judgment motions necessarily concluded that he is able to present the jury with a prima facie case on his first five counts.   Thus, defendants claim, he is unable to satisfy the fourth element of the Rizzuto test, requiring an “inability to establish a prima facie case without the spoliated evidence.”   The logic of their argument is that the December ruling that genuine issues of material fact exist makes summary judgment inescapable on the spoliation counts as a matter of law.

Aside from references to Rizzuto and to a few cases dealing generally with summary judgment, the only precedent defendants cite is Paylan v. St. Mary's Hospital Corporation, Superior Court, judicial district of Waterbury, Docket No. X10 03 4010269 (September 20, 2007;  Scholl, J.).   Plaintiff, objecting to the motion, omits discussion of Paylan altogether, and likewise cites no other decisions on point.

On its surface, Paylan appears to fully support the Haas argument.   The case involved several causes of action for plaintiff's wrongful termination by the hospital.   In the course of the litigation, a technician servicing a hospital computer destroyed a hard drive which plaintiff claimed held evidence vital to her case.   She thereupon added a count for spoliation of evidence.   The motion before Judge Scholl was for summary judgment on that count, with the hospital contending (a), that the hard drive destruction was inadvertent, negating the “bad faith” requirement of Rizzuto, and (b), that because upon an earlier motion for summary judgment in the action the court had ruled that plaintiff was able to make out a prima facie case of wrongful termination, the spoliation count foundered for want of proof of Rizzuto 's fourth element.   Judge Scholl granted the motion, essentially accepting both premises;  only the latter is pertinent to the present discussion.

Although issued almost eight years ago, the Paylan decision has gone largely unnoticed, or at least, beyond commentary.   The Diana court alluded to Judge Scholl's decision briefly, accepting as dispositive the first premise relating to the lack of intentional conduct in the destruction of the hard drive.   Paylan's remaining claims subsequently went to trial, the jury found for the hospital, and she appealed that result.   At 118 Conn.App. 258 (2009), the appellate court treats of the spoliation issue in two ways.   Most intensively, it examines whether she was entitled to an instruction under the Beers standard ⁷ allowing the jury to weigh the evidence of the destruction of the hard drive in its deliberations upon her other counts;  that issue, the decision holds, had to be resolved against her because she had failed to adduce sufficient evidence of intentional spoliation to be entitled to such an instruction.   As to the preclusion of a spoliation count by a finding of ability to make out a prima facie case on other counts—the issue for which defendants now cite this case—the appellate court merely mentions it in footnote 1, noting that a grant of summary judgment had resolved the merits of spoliation as an independent cause of action, and that no appeal was taken from that ruling.⁸

In response to the hospital's argument that plaintiff could not proceed on her spoliation count in light of the court's earlier finding that she was not unable to present a prima facie case on her other causes of action without the spoliated evidence, Judge Scholl's decision concludes:

the undisputed facts do not establish another essential element of the tort of intentional spoliation of evidence, that is, that the Plaintiff is unable to establish a prima facie case without the spoliated evidence.  “The standard for determining whether the plaintiff has made out a prima facie case, ․ is whether the plaintiff put forth sufficient evidence that, if believed, would establish a prima facie case, not whether the trier of fact believes it ․ In testing the sufficiency of the evidence, the court compares the evidence with the allegations of the complaint ․ In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove ․ [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff's] favor.”  (Internal quotation marks and citations omitted.)  Gambardella v. Apple Health Care, Inc., 86 Conn.App. 842, 846 (2004).   As the Court stated in Rizzuto, in clarifying the Plaintiff's burden of proof with respect to causation and damages:  “To establish proximate causation, the plaintiff must prove that the defendants' intentional, bad faith destruction of evidence rendered the plaintiff unable to establish a prima facie case in the underlying litigation.   Cf. Smith v. Atkinson, 771 So.2d 429, 434 (Ala.2000) (‘in order for a plaintiff to show proximate cause, the trier of fact must determine that the lost or destroyed evidence was so important to the plaintiff's claim in the underlying action that without that evidence the claim did not survive or would not have survived a motion for summary judgment’);

As did plaintiff here, Paylan had argued, in response to the first motion for summary judgment in her case, that genuine issues of material fact precluded such a judgment.   The court agreed with her, but in so ruling on that earlier motion had also made no finding that she was unable to put forth evidence sufficient to establish a prima facie case.   At the moment of Judge Scholl's decision, therefore, she stood before the court in precisely the same posture as does plaintiff in this case.

Two subtle nuances warrant comment.   First, Judge Calmar stated, in his memorandum, that “the issue of spoliation will be determined at the time of trial.”   This court does not read that remark as “the law of the case” limiting its ruling upon the instant motion, but rather as just an observation on his part that the spoliation question was not before him on the motions he had under consideration.   Second, this court is cautious not to allow true spoliators to defeat a count to that effect by filing a specious challenge to other counts in a complaint and then claiming that the denial of their first motion for summary judgment requires their success on the spoliation claims;  that would reward an effective “bait and switch” maneuver.   Under the circumstance of this case, however, where the first motions for summary judgment preceded the filing of the spoliation counts, there is no basis for speculating as to any improper litigation strategy having been employed here.

The court holds, therefore, that since plaintiff cannot establish, as Rizzuto requires, that spoliation has left him unable to proceed against defendants, they are entitled to summary judgment on the sixth, seventh, and eighth counts.   This decision only determines that plaintiff has failed to satisfy the fourth element of the tort of spoliation as a distinct cause of action, and may not be interpreted as precluding a request by plaintiff for a Beers instruction as to what weight the factfinder on the remaining counts might assign to any spoliation revealed by the evidence at trial.   The appellate court's decision in Paylan makes clear that this is a distinct option, and also sets forth how the trial court should assess any such request by plaintiff.

The Haas motion for summary judgment on counts six and seven (# 200) is granted, and plaintiff's objection to it (# 208) is overruled.

Quality Lines' motion for summary judgment on count eight (# 203) is granted on the basis of its first stated ground, and plaintiff's objection thereto (# 213) is overruled.

C. Further Specifics of the Quality Motion for Summary Judgment

Quality's motion for summary judgment makes four additional arguments beyond those made by the Haas defendants and discussed immediately above.   These are:

2.  Quality Lines is entitled to summary judgment because it is undisputed that there is no agency relationship between Quality Lines and 21st, Century Insurance Company (“Farmers”) and that any notice to preserve received by Farmers cannot be imputed upon Quality Lines.

3. Even if Farmers Insurance can be said to be Quality Lines' agent, its knowledge cannot be inputted (sic) to Quality Lines since any purported spoliation was not done in furtherance of the business of Quality Lines.

4. Summary judgment should be granted as there is no disputed issue of material of fact (sic) that the plaintiff has been able to account for the contents of the trailer and that plaintiff's claim that the unavailability of the trailer contents is harmful to his case is not material to the viability of his underlying negligence claim.

5. Summary judgment is appropriate with respect to all claims for punitive damages as the principal cannot be held liable for claim of punitive damages under the common law.

Both two and three focus upon the timing and sufficiency of formal notice to this defendant of plaintiff's intention to bring an action against it, and whether such notice to the company's insurer was sufficient.   For reasons outlined above in the discussion of “knowledge” required by Rizzuto, the court holds that the formality of notice, under the circumstances of this case, is not a material issue.   Summary judgment should not be granted for either reasons two or three.

Ground four appears to be a reiteration of the substance of the first ground, upon which this court has ruled.

Finally, any claims for punitive damages are derivative of the substantive counts that warrant damages of any sort.   Issues as to such damages can be addressed to the trial court as part of this defendant's request for jury instructions.

Boland, S.J.

FOOTNOTES

FN1. None of the defendants is expressly charged with disposition of the trailer, and its fate is not an aspect of this motion..  FN1. None of the defendants is expressly charged with disposition of the trailer, and its fate is not an aspect of this motion.

FN2. This court is aware of the language in Beers v. Bayliner Marine Corp., 236 Conn. 769, at 778 (1996), indicating that a party claiming spoliation “must have acted with due diligence with respect to the spoliated evidence,” including notice to the spoliator, and “have taken all appropriate means” including, “if necessary, an attempt to obtain a court-ordered inspection.”   Here, common sense makes it difficult to imagine that on August 2, this defendant could have been unaware of the accident involving plaintiff.   He was employed by the defendants Haas, and driving their truck with a load of cargo at their direction.   Additionally, the disposal of the evidence at issue is alleged to have occurred within twenty days thereafter.   To the extent that Beers remains relevant in the wake of Rizzuto, it does not strike this court that plaintiff has been dilatory in providing defendant with notice of his claim sufficient to inform it of its duty to preserve pertinent evidence..  FN2. This court is aware of the language in Beers v. Bayliner Marine Corp., 236 Conn. 769, at 778 (1996), indicating that a party claiming spoliation “must have acted with due diligence with respect to the spoliated evidence,” including notice to the spoliator, and “have taken all appropriate means” including, “if necessary, an attempt to obtain a court-ordered inspection.”   Here, common sense makes it difficult to imagine that on August 2, this defendant could have been unaware of the accident involving plaintiff.   He was employed by the defendants Haas, and driving their truck with a load of cargo at their direction.   Additionally, the disposal of the evidence at issue is alleged to have occurred within twenty days thereafter.   To the extent that Beers remains relevant in the wake of Rizzuto, it does not strike this court that plaintiff has been dilatory in providing defendant with notice of his claim sufficient to inform it of its duty to preserve pertinent evidence.

FN3. The majority opinion in at least five places uses the terms “intentional” and “bad faith” as practical synonyms, alluding to “intentional, bad faith destruction [or spoliation] of evidence.”   That diction connotes an equivalent rather than disparate relationship between the terms.   Justice Palmer's concurrence buttresses this impression, as he speaks of “bad faith, that is, ․ intent to deprive the plaintiff of his or her cause of action;” 280 Conn. 225, 259;  so also does Justice Sullivan's dissent, even as he criticizes the majority's decision, observing that a spoliation plaintiff must establish that the defendant destroyed the evidence “in bad faith, i.e., with an intent to deprive the plaintiff of his cause of action.”  Id. at 270..  FN3. The majority opinion in at least five places uses the terms “intentional” and “bad faith” as practical synonyms, alluding to “intentional, bad faith destruction [or spoliation] of evidence.”   That diction connotes an equivalent rather than disparate relationship between the terms.   Justice Palmer's concurrence buttresses this impression, as he speaks of “bad faith, that is, ․ intent to deprive the plaintiff of his or her cause of action;” 280 Conn. 225, 259;  so also does Justice Sullivan's dissent, even as he criticizes the majority's decision, observing that a spoliation plaintiff must establish that the defendant destroyed the evidence “in bad faith, i.e., with an intent to deprive the plaintiff of his cause of action.”  Id. at 270.

FN4. Briefly, a first-party spoliator is one who may also be liable to plaintiff on the underlying claim;  e.g., Home Depot, to Rizzuto;  whereas a third-party spoliator is one liable only for the spoliation of evidence, e.g., Fox Heating Service to Cambridge Mutual.   There are also so-called hybrid spoliators, that is, ones who may spoliate evidence which implicates another defendant even as they are also defending against various claims made by plaintiff.   Here, with both the Haas defendants and the LLC being charged with the same predicate acts, and given the close identity among them, each defendant appears to be a “hybrid” with respect to the co-defendants.   See also, Prada v. Bova, Superior Court, judicial district of Stamford–Norwalk at Stamford, D.N. CV 12 6014139 (January 30, 2013, Adams, J.T.R.) [55 Conn. L. Rptr. 451]..  FN4. Briefly, a first-party spoliator is one who may also be liable to plaintiff on the underlying claim;  e.g., Home Depot, to Rizzuto;  whereas a third-party spoliator is one liable only for the spoliation of evidence, e.g., Fox Heating Service to Cambridge Mutual.   There are also so-called hybrid spoliators, that is, ones who may spoliate evidence which implicates another defendant even as they are also defending against various claims made by plaintiff.   Here, with both the Haas defendants and the LLC being charged with the same predicate acts, and given the close identity among them, each defendant appears to be a “hybrid” with respect to the co-defendants.   See also, Prada v. Bova, Superior Court, judicial district of Stamford–Norwalk at Stamford, D.N. CV 12 6014139 (January 30, 2013, Adams, J.T.R.) [55 Conn. L. Rptr. 451].

FN5. The Prada court noted in a footnote that sometime before the case was submitted to the jury, plaintiff would have to elect which theory he was proceeding upon, but there, as here, the expression of alternative causes of action within the complaint does not immediately require that election..  FN5. The Prada court noted in a footnote that sometime before the case was submitted to the jury, plaintiff would have to elect which theory he was proceeding upon, but there, as here, the expression of alternative causes of action within the complaint does not immediately require that election.

FN6. Plaintiff accompanied that filing with a request for leave to file an amended complaint, to which all defendants objected.   Judge Calmar, however, overruled those objections..  FN6. Plaintiff accompanied that filing with a request for leave to file an amended complaint, to which all defendants objected.   Judge Calmar, however, overruled those objections.

FN7. Interestingly, the appellate decision makes no reference to Rizzuto whatsoever..  FN7. Interestingly, the appellate decision makes no reference to Rizzuto whatsoever.

FN8. This appellate decision in the case has been cited some few times;  see, Perez–Dickson v. City of Bridgeport, 304 Conn. 483 (2012), Walker v. Department of Children and Families, 146 Conn.App. 863 (2013), and a handful of superior court decisions.   None of these authorities, however, involve the issue presented in this case..  FN8. This appellate decision in the case has been cited some few times;  see, Perez–Dickson v. City of Bridgeport, 304 Conn. 483 (2012), Walker v. Department of Children and Families, 146 Conn.App. 863 (2013), and a handful of superior court decisions.   None of these authorities, however, involve the issue presented in this case.

Boland, John D., J.