United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 15, 1997 Decided June 18, 1999
No. 96-7182
Ronnie Holmes,
Appellant
v.
Amerex Rent-a-Car et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
Jonathan E. Halperin argued the cause for appellant.
Terence J. O'Connell argued the cause for appellee, with
whom James M. Linsao was on the brief.
Before: Silberman, Ginsburg, and Henderson, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: We previously determined that
the answers to two novel questions of District of Columbia
law would be dispositive of this appeal and therefore certified
those questions to the District of Columbia Court of Appeals.
See Holmes v. Amerex Rent-a-Car, 113 F.3d 1285, 1286
(1997). The questions were:
Under District of Columbia law, may a plaintiff recover
against a defendant who has negligently or recklessly
destroyed or allowed to be destroyed evidence that would
have assisted the plaintiff in pursuing a claim against a
third party?
If a plaintiff may proceed under such a theory, what
standard of proximate cause must he meet?
The District of Columbia Court of Appeals has now given its
answers:
In response to the first certified question, we hold that
negligent or reckless spoliation of evidence is an indepen-
dent and actionable tort in the District of Columbia.
In response to the second certified question, we hold that
in order to demonstrate that the defendant's actions
proximately caused the harm alleged, plaintiff must
show, on the basis of reasonable inferences derived from
both existing and spoliated evidence, that (1) the plain-
tiff's ability to prevail in the underlying lawsuit was
significantly impaired due to the absence of the spoliated
evidence; and (2) there had been a significant possibility
of success in the underlying claim against the third
party.
Holmes v. Amerex Rent-a-Car, 710 A.2d 846, 847 (D.C. 1998).
We now apply the law of the District, as clarified, to the facts
of this case.
I. Background
The essential facts, as set forth in our prior opinion, are as
follows. In November, 1988, while driving a car he had
rented from Amerex Rent-a-Car, Ronnie Holmes was in-
volved in an accident that left him seriously injured. He
asked Amerex, which had taken possession of the wrecked car
following the accident, to hold it so that he could have it
inspected by an expert. Amerex agreed to leave the car
undisturbed until June 15, 1989. On June 14, an Amerex
claims representative agreed to sell the car to Holmes for
$200. Unbeknownst to the claims representative, however,
another Amerex employee had already sold the car to a
salvage company, which had destroyed its engine. Without
the engine, it was impossible to determine whether the car
was defectively designed or manufactured or maintained in a
way that might have caused the accident.
Holmes sued Chrysler (the manufacturer of the car) and
Amerex in the District of Columbia Superior Court, alleging
that Chrysler had negligently designed, and that Amerex had
negligently maintained, the engine of the car. After Chrysler
removed the case to federal court, Holmes filed an amended
complaint naming Amerex as the sole defendant. The
amended complaint asserts claims for negligent spoliation of
evidence and tortious interference with Holmes's prospective
civil action against Chrysler (again by spoliation of evidence).
In support of these claims Holmes submitted an affidavit
from an expert in biomechanics, crashworthiness, and acci-
dent reconstruction stating that "if the vehicle were available
in the same condition that it was immediately following the
accident, [Holmes] would have a substantial possibility of
proving that the [car] at issue was defectively designed and/or
manufactured and/or maintained." The district judge grant-
ed summary judgment to Amerex on this claim, concluding
that Holmes had not met what it (erroneously) thought was
the law of spoliation in the District of Columbia, namely, that
a plaintiff must demonstrate that, were it not for the destruc-
tion of the evidence, it is more probable than not that he
would prevail upon the underlying claim.
Holmes's amended complaint also included counts for
breach of contract and promissory estoppel arising out of
Amerex's sale of the car to the salvage company. The district
court referred those claims to a magistrate judge. After a
bench trial, the magistrate first found for Holmes on the
contract claim but awarded him only nominal damages be-
cause his "purpose in seeking possession of the salvage was
not for its intrinsic value but solely for its evidential [sic]
value in a potential tort action against the manufacturer";
when the district court had granted summary judgment in
favor of Amerex on the spoliation claims, it had "removed the
basis for any damages [Holmes] could claim" arising out of
Amerex's breach of contract. The magistrate then rejected
Holmes's promissory estoppel claim, upon the ground that
Holmes had been "less than diligent in protecting his own
interests with respect to an inspection of the salvage of the
vehicle." The district court adopted the magistrate's report
and recommendation in full.
II. Analysis
Holmes appeals the district court's grant of summary judg-
ment for Amerex on the spoliation claims, the magistrate's
failure to award him more than nominal damages for Ame-
rex's breach of contract, and the magistrate's denial of his
promissory estoppel claim.
In answer to our certification of questions of law, the
District of Columbia Court of Appeals enumerated the ele-
ments of a cause of action for negligent or reckless spoliation
of evidence, as follows:
(1) existence of a potential civil action; (2) a legal or
contractual duty to preserve evidence which is relevant
to that action; (3) destruction of that evidence by the
duty-bound defendant; (4) significant impairment in the
ability to prove the potential civil action; (5) a proximate
relationship between the impairment of the underlying
suit and the unavailability of the destroyed evidence; (6)
a significant possibility of success of the potential civil
action if the evidence were available; and (7) damages
adjusted for the estimated likelihood of success in the
potential civil action.
710 A.2d at 854. The evidence presented in this case, viewed
in the light most favorable to Holmes, would allow a reason-
able juror to conclude that (1) Holmes had a potential civil
action arising out of the accident in which he was involved;
(2) Amerex had a contractual obligation to preserve the car
for Holmes; (3) Amerex negligently allowed the car to be sold
and dismantled; (4) Holmes's ability to prove his case in the
potential civil action was significantly impaired; (5) the im-
pairment of the underlying suit was proximately related to
the dismantling of the car and the attendant loss of evidence
relating to the design, manufacturing, and maintenance of the
car; (6) Holmes would have had a significant possibility of
success in the potential civil action if the evidence were
available; and (7) Holmes suffered damages.
In concluding that a reasonable juror could find that
Holmes would have had a "significant possibility" of success
in his underlying lawsuit if the evidence had not been lost, we
are mindful that the District of Columbia has, unlike some
states, see, e.g., Smith v. Superior Court, 198 Cal. Rptr. 829,
836 (Cal. Ct. App. 1984), rejected the requirement that a
plaintiff demonstrate a "reasonable probability" of success.
A "reasonable probability" of success still requires a
showing that success was probable. In our view, this
comes too close to requiring that the plaintiff show
success by what amounts to "a preponderance of the
evidence." ... [T]his standard is too high. Instead, we
believe we should require that the plaintiff show that the
underlying lawsuit enjoyed a significant possibility of
success. We choose this term as it implies a showing
higher than the already recognized standard of "signifi-
cant evidence" but lower than the standard of "prepon-
derance of the evidence." The plaintiff must demon-
strate a substantial and realistic possibility of succeeding,
but need not cross the threshold of demonstrating that
such success was more likely than not, something that
would be realistically impractical of proof.
710 A.2d at 852.
Holmes submitted the affidavit of an expert in accident
reconstruction who, after reviewing photographs of the car
taken after the accident, determined that the car appears to
have lacked reasonable "crashworthiness." He therefore con-
cluded that "if the vehicle were available in the same condi-
tion that it was immediately following the accident, [Holmes]
would have a substantial possibility of proving that the [car]
... was defectively designed and/or manufactured and/or
maintained." We think a reasonable jury could find that the
evidence that led Holmes's expert to conclude that he would
have a "substantial possibility" of success gives rise to the
"significant possibility" of success Holmes needs in order to
recover for the negligent spoliation of his evidence. It follows
that the district court erred in granting summary judgment
in favor of Amerex on the negligent spoliation claim. It
follows as well that the magistrate judges's decision to award
Holmes only nominal damages on his breach of contract
claim, upon the premise that his spoliation claim could not
succeed, must be reconsidered in light of the ultimate resolu-
tion of the spoliation claim.
Turning to the promissory estoppel count, we affirm the
judgment in favor of Amerex. The judge first found that
Holmes unreasonably failed to inspect the car despite having
had ample opportunity to do so. He then held that judgment
for Amerex was appropriate because promissory estoppel
"requires the promisee to have acted reasonably in justifiable
reliance on the promise." Although Holmes urges us to
reverse the judge's decision, he challenges neither step of this
reasoning. Instead, he focuses upon evidence showing that
he relied upon Amerex's representation that it would pre-
serve the car and that he was injured when that representa-
tion proved false. That may be so, but it does nothing to
undermine the magistrate's finding that he was unreasonably
dilatory in inspecting the car. Therefore, we are constrained
to approve the magistrate's denial of the claim based upon
promissory estoppel.
III. Conclusion
In view of the answer given by the District of Columbia
Court of Appeals to the questions of law we certified, we
reverse the grant of summary judgment in favor of Amerex
on the claim for negligent spoliation of evidence, vacate the
award of nominal damages on the claim for breach of con-
tract, and affirm the judgment of the district court on the
claim based upon promissory estoppel. This matter is re-
manded to the district court for further proceedings consis-
tent with this opinion.
So ordered.