Connecticut State Court Recognizes Tort of Intentional Spoliation of Evidence by Non-Party

The Connecticut Superior Court recognized a cause of action for third-party intentional spoliation of evidence in Diana v. NetJets Servs., Inc.,2007 Conn. Super. LEXIS 3491 (Conn. Super. Dec. 27, 2007), a personal injury action brought by an individual injured on airport property against, inter alia, the airport owner, which had received an incident report about the accident but allegedly disposed of it without transmitting it to the FAA. As a result, the incident report was lost and no FAA investigation was ever undertaken.

The Diana Court noted that the Connecticut Supreme Court had already recognized the independent tort of intentional spoliation of evidence by a party in Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 905 A.2d 1165 (2006). The Diana Court held that “[t]he essential elements of the tort, as set forth in Rizzuto ... minimize the problem of placing an excessive burden on potential spoliation defendants — the third-party spoliator must not only be aware of the pending or potential action but must intentionally, in bad faith, destroy the evidence.” It surveyed the state of the law in the area as follows:

About thirty jurisdictions have addressed the question of whether to recognize a cause of action for spoliation of evidence. Eight jurisdictions have clearly chosen to do so. See Smith v. Atkinson, 771 So.2d 429 (Ala. 2000) (third-party negligent spoliation); Hazen v. Municipality of Anchorage, 718 P.2d 456 (Alaska 1986) (intentional spoliation); Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 905 A.2d 1165 (2006) (first-party intentional spoliation); Holmes v. Amerex Rent-A-Car, 710 A.2d 846 (D.C. 1998) (negligent or reckless spoliation); Oliver v. Stimson Lumber Co., 297 Mont. 336, 993 P.2d 11 (1999) (third-party intentional and negligent spoliation); Coleman v. Eddy Potash, Inc., 120 N.M. 645, 905 P.2d 185 (1992) (intentional spoliation); Smith v. Howard Johnson Co., Ohio St. 3d 28, 615 N.E.2d 1037 (1993) (intentional spoliation); Hannah v. Heeter, 213 W. Va. 704, 584 E.E.2d 560 (2003) (first-and third-party intentional spoliation and third-party negligent spoliation).

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