Killings v. Enterprise Leasing Co., Inc.
2008 Ala. LEXIS 244, 9 So. 3d 1216, 2008 WL 4967412 (2008)
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Rule of Law:
Under Alabama law, a plaintiff can assert a claim for negligent spoliation of evidence against a third party if the third party had actual knowledge of pending or potential litigation, a duty to preserve evidence (arising from a voluntary undertaking, an agreement, or a specific request with an offer to bear the burden), and the missing evidence was vital to the plaintiff's underlying action.
Facts:
- On May 11, 2004, Thomas O’Troy Killings was driving a 2001 Ford E-150 van on behalf of his employer when the van lost its right rear wheel, causing an accident in which Killings suffered injuries.
- Following the accident, the wrecked van, which CBIZ had been leasing from Enterprise Leasing, was moved to Cockrell’s Body Shop in Theodore, Alabama.
- On June 21 and July 16, 2004, Killings’s attorney, Shane Lucado, sent letters to Enterprise Leasing specifically requesting that the van be preserved for investigative and potential destructive testing purposes, warning of potential liability for negligent spoliation if destroyed, and stating that testing could take "several months."
- Shortly after July 16, 2004, Lucado spoke with Jason Leone, a claims representative from Cambridge Integrated Services (representing Enterprise Leasing), who assured Lucado that the van would remain in its location and would not be moved without prior notification; Lucado informed Leone that identifying potential defendants and conducting destructive testing could take "several years."
- On May 10, 2006, Killings sued Ford Motor Company (the van manufacturer) and various maintenance entities in the Mobile Circuit Court, but not Enterprise Leasing.
- On November 27, 2006, Enterprise Leasing, without notifying Killings or other parties to the ongoing litigation, had the van transferred to Manheim Auto Auction in Mississippi where it was sold for scrap and subsequently destroyed.
- Around December 6, 2006, the parties involved in Killings’s lawsuit discovered that the van had been moved and destroyed.
Procedural Posture:
- Thomas O’Troy Killings sued Ford Motor Company (the van manufacturer), Dobbs Mobile Bay, Inc., Firestone Tire & Service Center, BFS Retail and Commercial Operations, LLC, Bridgestone Americas Holding, Inc., and various other fictitiously named parties in the Mobile Circuit Court, alleging product liability, breach of warranty, negligence, and wantonness.
- Killings later amended his complaint to include third-party spoliation claims against Enterprise Leasing Company, Inc. and Cockrell’s Body Shop.
- The trial court issued protective orders, at the request of Ford and the Firestone defendants, prohibiting the disposal or material alteration of the subject van.
- The original defendants moved to dismiss the claims against them, and Killings agreed to dismiss claims against all original defendants except Ford.
- On June 15, 2007, the trial court held a hearing and dismissed the claims against Ford and Cockrell’s Body Shop, leaving only the spoliation claim against Enterprise Leasing to be resolved.
- On December 28, 2007, Enterprise Leasing moved for a summary judgment.
- On January 9, 2008, Killings filed a response to Enterprise Leasing’s motion and moved the trial court to continue the scheduled summary-judgment hearing.
- On January 11, 2008, Enterprise Leasing moved the trial court to strike Killings’s response.
- On January 11, 2008, the trial court held the scheduled hearing, where it denied both Killings’s motion to continue and Enterprise Leasing’s motion to strike, and then entered an order granting Enterprise Leasing’s motion for a summary judgment.
- On February 10, 2008, Killings filed a motion to alter, amend, or vacate the trial court’s judgment.
- On March 11, 2008, the trial court denied Killings’s motion.
- On March 14, 2008, Killings filed his notice of appeal to the Supreme Court of Alabama.
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Issue:
Did the trial court err in granting summary judgment to Enterprise Leasing Company, Inc. on Thomas O’Troy Killings’s third-party negligent spoliation claim, given the evidence presented regarding Enterprise Leasing's knowledge of potential litigation, its duty to preserve the vehicle, and the vitality of the vehicle as evidence?
Opinions:
Majority - Justice Stuart
Yes, the trial court erred in granting summary judgment for Enterprise Leasing, because Killings presented sufficient evidence to establish genuine issues of material fact regarding all three elements of the third-party negligent spoliation test. First, Enterprise Leasing had actual knowledge of at least potential litigation, as evidenced by Killings' attorney's letters explicitly warning of spoliation liability and noting the process might take 'several years.' Second, Enterprise Leasing had a duty to preserve the van because its claims representative, Jason Leone, explicitly agreed that the van would not be moved without prior notice. This agreement created a duty, and Enterprise Leasing could not unilaterally shed this assumed duty without notifying Killings, regardless of the time elapsed or the burden involved. Third, the missing van was vital to Killings' underlying action, as his mechanical engineer's affidavit stated that the precise cause of the axle failure (whether by improper design, manufacture, or maintenance) could 'only be determined by further testing' of the vehicle itself. Enterprise Leasing failed to rebut this evidence. Because genuine issues of material fact existed on these points, summary judgment was inappropriate, and the case is reversed and remanded for further proceedings.
Dissenting - Chief Justice Cobb
No, the summary judgment should be affirmed because Killings failed to establish that Enterprise Leasing had a duty to preserve the van. The Court's precedent in Smith v. Atkinson requires that a specific request to preserve evidence be accompanied by an offer to pay the costs or otherwise bear the burden of preservation, which Killings or his attorney never did. Furthermore, Killings' communications implied a need for preservation for 'months,' not the two and a half years that passed, and Enterprise Leasing was not kept informed of the litigation's status for over two years. Therefore, Killings cannot show Enterprise Leasing had a duty as defined by Smith.
Dissenting - Justice See
No, the summary judgment should be affirmed. I dissent for the reasons stated in my dissenting opinion in Smith v. Atkinson, which questioned the recognition of a third-party spoliation tort in the first instance.
Dissenting - Justice Murdock
No, the trial court correctly granted summary judgment. Killings' requests for preservation did not include an offer to pay for storage expenses; the statement to 'make arrangements to preserve the evidence' was not an offer to cover costs. The extended duration of approximately two and a half years without any communication from Killings, coupled with his failure to inform Enterprise Leasing about the filing of the lawsuit or the existence of protective orders, is inconsistent with the continued imposition of a duty upon Enterprise Leasing. A third party's duty to preserve evidence should not persist indefinitely 'regardless of the length of time or the burden involved' without any further communication or a genuine offer to share the burden. I further express concern, consistent with Justice See, that the benefits of this cause of action are outweighed by the burden to litigants and the judicial system due to potential endless litigation over speculative loss, especially under the circumstances presented here.
Analysis:
This case significantly clarifies the 'duty' element of a third-party negligent spoliation claim under Alabama law, affirming that an explicit agreement to preserve evidence can create a duty even without a concurrent offer to pay storage costs. It reinforces the high standard for granting summary judgment in such cases, requiring the moving party to demonstrate the absence of a genuine issue of material fact on all prongs of the Smith v. Atkinson test. The decision highlights the importance of clear communication regarding preservation agreements and the duration of such duties, particularly against the backdrop of vigorous dissenting opinions concerned about the indefinite burden placed on third parties and the speculative nature of spoliation claims.
