Present: All the Justices
KENNETH WAYNE AUSTIN
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 972627 June 5, 1998
CONSOLIDATION COAL COMPANY
UPON A QUESTION OF LAW CERTIFIED BY THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
Pursuant to Rule 5:42, the United States District Court
for the Southern District of West Virginia certified to this
Court the following question of law:
"Whether Virginia law would recognize
intentional or negligent interference with a
prospective civil action by spoliation of evidence
as an independent tort under the facts described
below."
The order contained the following facts:
"On May 20, 1995, the plaintiff Kenneth Austin
was injured while working in a coal mine in Buchanan
County, Virginia. The accident occurred when a hose
that Mr. Austin was using to cool down a welding
area burst in his hands, causing severe injuries to
his face and neck. Because he received workers'
compensation benefits, Mr. Austin was barred by
statutory immunity under Virginia law from pursuing
a cause of action against his employer,
Consolidation Coal Company (Consolidation), the
defendant in the above-styled case. Therefore, Mr.
Austin chose to pursue a products liability action
against the manufacturer and distributor of the
allegedly defective hose which caused his injuries.
"However, Consolidation allegedly refused to
disclose the identities of the manufacturer and
distributor to Mr. Austin. Consolidation also
refused to provide Mr. Austin with samples of the
hose, or to allow his expert to evaluate the hose on
Consolidation's property. This is despite the fact
that Consolidation freely granted access to the hose
to both the manufacturer and the distributor for
their defense experts to evaluate. When one year
passed and Consolidation had still failed to provide
voluntary cooperation, Mr. Austin filed an action
against them in the Buchanan County Circuit Court.
At a May 23, 1996 hearing, Judge Keary R. Williams
ordered that Consolidation's purchasing agent sit
for a deposition with plaintiff's counsel for the
purpose of discovering the identities of the
manufacturer and distributor of the hose. Judge
Williams also ordered Consolidation to preserve the
hose as evidence until the plaintiff's experts had
an opportunity to test it.
"In direct violation of this court order,
Consolidation allegedly destroyed the hose before
Mr. Austin's experts ever had a chance to conduct
independent testing. Mr. Austin did eventually
discover the identities of the manufacturer,
National Fire Hose Corporation, and the distributor,
Fairmont Supply Company, and subsequently filed suit
against both companies in this Court. Discovery
also revealed that the distributor, Fairmont Supply
Company, is either a subsidiary or an affiliate
corporation of Consolidation. Due to
Consolidation's destruction of the allegedly
defective hose, Mr. Austin claims that he confronts
significant obstacles in proving his products
liability claim. For this reason, Mr. Austin
initiated the above-styled action against
Consolidation, claiming that they tortiously
interfered with his ability to pursue a products
liability suit when they destroyed the allegedly
defective hose. Other courts have labeled such
tortious conduct as 'spoliation of evidence.'"
Even though the federal district court's certification
order states that the Circuit Court of Buchanan County entered
an order requiring that Consolidation preserve the hose, no
such order was actually entered. The litigants conceded, at
the bar of this Court, that the Circuit Court of Buchanan
County did not enter a written order prohibiting the
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destruction of the hose. Rather, the circuit court stated
during a hearing on Austin's petition to perpetuate testimony
that an order granting the relief requested in the petition
"should contain a statement that no parties are to do anything
[which would affect] the integrity of the hose. . . ."
We have stated that "[i]t is the firmly established law
of this Commonwealth that a trial court speaks only through
its written orders." Davis v. Mullins, 251 Va. 141, 148, 466
S.E.2d 90, 94 (1996). Accord Walton v. Commonwealth, 256 Va.
___, ___, ___ S.E.2d ___, ___ (1998) (this day decided); Town
of Front Royal v. Industrial Park, 248 Va. 581, 586, 449
S.E.2d 794, 797 (1994); Robertson v. Superintendent of the
Wise Correctional Unit, 248 Va. 232, 235 n.*, 445 S.E.2d 116,
117 n.* (1994). Therefore, for purposes of this opinion, we
must amend the federal district court's statement of facts to
reflect that no order to preserve the hose was entered by the
Circuit Court of Buchanan County. Our answer to the certified
question is, in part, predicated upon this factual
modification.
Austin argues that Virginia should recognize a cause of
action for intentional spoliation of evidence based on the
facts and circumstances of his case. Relying upon cases from
other jurisdictions, Austin says that those courts have
recognized "a cause of action in tort for interference with
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the preservation of evidence, commonly known as spoliation of
evidence. The elements are: (1) pending or probable
litigation involving the plaintiff; (2) knowledge on part of
the defendant that litigation exists or is probable; (3)
willful destruction of evidence by the defendant designed to
disrupt plaintiff's case; (4) disruption of plaintiff's case;
and (5) damages proximately caused by the defendant's acts."
Austin cites the following authorities in support of his
position: Hazen v. Municipality of Anchorage, 718 P.2d 456,
463 (Alaska 1986); Smith v. Superior Ct., 198 Cal. Rptr. 829,
837 (Ct. App. 1984); Bondu v. Gurvich, 473 So. 2d 1307, 1312-
13 (Fla. Dist. Ct. App. 1984); Viviano v. CBS, Inc., 597 A.2d
543, 549-50 (N.J. Super. Ct. App. Div. 1991); Smith v. Howard
Johnson Co., 615 N.E.2d 1037, 1038 (Ohio 1993). But see
Panich v. Iron Wood Prod. Corp., 445 N.W.2d 795, 797 (Mich.
Ct. App. 1989) (employer has no duty to preserve evidence).
Continuing, Austin asserts that we should also recognize
a cause of action for negligent spoliation of evidence.
Austin says that this so-called tort differs from intentional
spoliation of evidence in that the purported tortfeasor
negligently damaged or destroyed evidence which may be
necessary as proof in a civil action. See Velasco v.
Commercial Bldg. Maintenance Co., 215 Cal. Rptr. 504, 506 (Ct.
App. 1985).
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Responding, Consolidation argues that under the facts and
circumstances described in the certification order, it has no
duty to preserve evidence for the benefit of an injured person
who has a potential cause of action against a third party.
Therefore, Consolidation contends that Austin has no cause of
action against it for any so-called tort of intentional or
negligent spoliation of evidence.
The issue whether an employer has a duty to preserve
evidence for the benefit of an employee's potential tort
action against a third party is a matter of first impression
in this Commonwealth. However, the principles that we must
apply to the facts and circumstances before this Court are
familiar and well settled.
"The essential elements of a cause of action . . .
based on a tortious act . . . are (1) a legal
obligation of a defendant to the plaintiff, (2) a
violation or breach of that duty or right, and (3)
harm or damage to the plaintiff as a proximate
consequence of the violation or breach. . . . A
cause of action does not evolve unless all of these
factors are present." Stone v. Ethan Allen, Inc.,
232 Va. 365, 368-69, 350 S.E.2d 629, 631 (1986)
(quoting Locke v. Johns-Manville Corp., 221 Va. 951,
957, 275 S.E.2d 900, 904 (1981)); accord Van Deusen
v. Snead, 247 Va. 324, 330, 441 S.E.2d 207, 210,
(1994); Atlantic Co. v. Morrisette, 198 Va. 332,
333, 94 S.E.2d 220, 221-22 (1956).
We hold that under the facts and circumstances of this case,
Austin has no cause of action against Consolidation for
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intentional or negligent spoliation of evidence because
Consolidation had no legal duty to preserve the hose.
Austin tries to identify several sources which may have
imposed a duty or obligation upon Consolidation to preserve
the hose. Austin argues that he was an employee of
Consolidation at the time of the accident and, therefore, a
master/servant relationship existed which somehow imposed a
duty upon Consolidation. Austin also asserts that "federal
and state law mandate numerous requirements and duties,
particularly in the context of the coal mining industry, upon
employers to their employees" and that some of these statutes,
which require employers to provide employees with safe working
environments and conditions, may have imposed a duty upon
Consolidation to preserve the hose.
We disagree with Austin. Austin cites no state or
federal statutes or authorities which require an employer like
Consolidation to preserve its personal property so that such
property may be useful to an employee who has filed a tort
action against a third party. Additionally, the
employer/employee relationship that existed between Austin and
Consolidation, based on the record before us, does not give
rise to such duty.
Austin also argues that "a fiduciary relationship or one
of trust existed between Austin and Consolidation which
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mandated the preservation of the hose." Austin says that
Virginia's Workers' Compensation Act, Code § 65.2-309, et
seq., "establishes such a consensual or fiduciary relationship
as a matter of law." Continuing, he contends that a "claim
for [w]orkers' [c]ompensation benefits operates as an
assignment to the employer of any right to recover damages
which the injured employee may have against any other party
for such injury. . . . Austin's assignment of rights created
a fiduciary relationship or a relationship of trust between
Consolidation and him. The Act also created a duty upon
Consolidation and elevated it to a position of trust."
We find no merit in Austin's contentions. We have
reviewed the Virginia Workers' Compensation Act, and it is
devoid of any language which imposes a duty upon an employer
to preserve property which may be beneficial to an employee
who seeks to prosecute a civil action against a third party.
Austin contends that Consolidation assumed a duty to
preserve this hose because Consolidation conducted an
investigation of Austin's accident and forwarded the hose to
an affiliate corporation for testing and analysis. We
disagree. These facts are simply not sufficient to support
Austin's assertion that Consolidation assumed a tort duty to
preserve the hose. We also reject Austin's argument that the
purported "order" of the Circuit Court of Buchanan County
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imposed such duty upon Consolidation. Even assuming that
entry of such an order would have created a duty, Austin
conceded at the bar of this Court that no order was ever
entered and, thus, no duty was created.
Accordingly, we must answer the certified question in the
negative.
Certified question answered in the negative.
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