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Holmes, Ronnie v. Amerex Rnt A Car

Court: Court of Appeals for the D.C. Circuit
Date filed: 1999-06-18
Citations: 180 F.3d 294, 336 U.S. App. D.C. 359
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                  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.