Colorado Would Not Recognize an Independent Tort of Spoliation — Erie Prognosis

From Johnson v. Liberty Mut. Fire Ins. Co.,, 2009 U.S. Dist. LEXIS 79452 (D. Colo. Sept. 2, 2009):

Having carefully considered the issue, this Court believes that, were the Colorado Supreme Court to consider the question, it would join the majority of jurisdictions that decline t[o] recognize a standalone tort claim for spoliation of evidence. The Plaintiffs offer extensive and impressively thorough arguments analogizing the duties underlying a claim for spoliation to legal duties currently imposed under existing Colorado tort law. However, the Plaintiffs fail to recognize that those same tort duties exist in similar form in many states, yet recognition of a tort claim for spoliation remains the exception, not the rule. The litany of concerns recited by the court in Metlife [Auto & Home v. Joe Basil Chevrolet, Inc.,] 753 N.Y.S.2d 272, 274-282 (N.Y. App. 2002)] offers some explanation why the majority of jurisdictions considering the question have been reluctant to extend their tort law so far. Admittedly, some courts have wrestled with the problems posed by recognition of the tort and overcome them, see e.g. Diana v. NetJets Services, Inc., 974 A.2d 841, 663-676 (Conn. Super. 2007) (rebutting MetLife's concerns point-by-point), but again, the majority of jurisdictions considering the question have not. The Plaintiffs have failed to show how Colorado law so differs from the mainstream that one could reliably predict that the Colorado Supreme Court would buck the national trend and side with the minority of jurisdictions on this difficult question, and thus, this Court finds that Colorado would not recognize a standalone tort claim for spoliation of evidence. —————

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Colorado Would Not Recognize an Independent Tort of Spoliation — Erie Prognosis

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