SUPREME COURT OF ARIZONA
En Banc
MONICA LIPS; WALTER LIPS, ) Arizona Supreme Court
) No. CV-09-0273-PR
Plaintiffs/Appellants, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CV 08-0097
SCOTTSDALE HEALTHCARE )
CORPORATION, an Arizona ) Maricopa County
corporation, ) Superior Court
) No. CV2006-010041
Defendant/Appellee. )
)
)
) O P I N I O N
_________________________________ )
Appeal from the Superior Court in Maricopa County
The Honorable A. Craig Blakey, Judge
AFFIRMED
________________________________________________________________
Opinion of the Court of Appeals, Division One
222 Ariz. 346, 214 P.3d 434 (2009)
VACATED IN PART
________________________________________________________________
BEUS GILBERT PLLC Scottsdale
By Leo R. Beus
Keith C. Ricker
Attorneys for Monica Lips and Walter Lips
KENT & WITTEKIND, P.C. Phoenix
By Richard A. Kent
Gordon K. Clevenger
Attorneys for Scottsdale Healthcare Corporation
HARALSON, MILLER, PITT, FELDMAN & MCANALLY P.L.C. Tucson
By Stanley G. Feldman
And
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LAW OFFICES OF DAVID L. ABNEY, ESQ. Phoenix
By David L. Abney
Attorneys for Amici Curiae Arizona Association for Justice and
Arizona Trial Lawyers Association
________________________________________________________________
R Y A N, Justice
¶1 We today consider whether to recognize a tort of
negligent or intentional third-party spoliation. Spoliation is
the destruction or material alteration of evidence. When
spoliation is committed by a party to a lawsuit, it is referred
to as first-party spoliation; when committed by a non-party, it
is called third-party spoliation.
¶2 We decline to recognize a tort of third-party
negligent spoliation. We need not decide, however, whether to
recognize a tort of third-party intentional spoliation, because
that tort requires an allegation not made in this case – that
the defendant intended to harm the plaintiff’s interests.
I
¶3 In 2004, surgeons replaced Monica Lips’s left hip.
The prosthesis failed after seventeen months and parts of it
were surgically removed at a Scottsdale Healthcare Corporation
(“SHC”) hospital. Lips believed that the hip prosthesis was
defective, and asked her surgeon to preserve the explanted
parts. The surgeon, in turn, told SHC that it was obliged to
retain them.
2
¶4 Lips later sued the manufacturer of the prosthesis.
During discovery, she learned that the prosthesis parts, which
she believed were being kept by SHC, could not be found. Lips
filed an amended complaint claiming that SHC was liable for
spoliation of the parts.
¶5 The superior court granted SHC’s motion to dismiss,
concluding that Arizona does not recognize third-party
spoliation of evidence as a separate tort. The court of appeals
affirmed. Lips v. Scottsdale Healthcare Corp., 222 Ariz. 346,
351-52 ¶¶ 20-21, 214 P.3d 434, 439-40 (App. 2009).
¶6 We granted the petition for review to consider
“[w]hether Arizona should recognize intentional and negligent
spoliation of evidence by a third party as independent causes of
action,” an issue of statewide importance. See ARCAP 23(c). We
have jurisdiction under Article 6, Section 5(3) of the Arizona
Constitution and Arizona Revised Statutes section 12-120.24
(2003).
II
A
¶7 We addressed first-party spoliation in La Raia v.
Superior Court, a lawsuit involving claims for physical injuries
resulting from pesticide poisoning. 150 Ariz. 118, 120-21, 722
P.2d 286, 288-89 (1986). The defendant destroyed the pesticide
can that had been used, delaying the plaintiff’s proper
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treatment. Id. at 120, 722 P.2d at 288. The plaintiff argued
that she had a separate cause of action against the defendant
for destruction of the can. Id. We rejected the claim because
the defendant’s actions exacerbated the physical injuries
already caused by its negligence, and a complete remedy could be
obtained through a damages award in the underlying lawsuit. Id.
at 121-22, 722 P.2d at 289-90. An additional cause of action
was unnecessary.
¶8 Our decision to forgo creating a distinct cause of
action for first-party spoliation in La Raia comports with the
approach of many courts that address such allegations in the
underlying suit through sanctions, including adverse inference
instructions and other mechanisms. See Cedars-Sinai Med. Ctr.
v. Superior Court (Bowyer), 954 P.2d 511, 517 (Cal. 1998)
(explaining that “there are a number of nontort remedies that
seek to punish and deter the intentional spoliation of evidence
. . . . [c]hief among [which] is the evidentiary inference that
evidence which one party has destroyed or rendered unavailable
was unfavorable to that party”); see also Leon v. IDX Sys.
Corp., 464 F.3d 951, 958, 960-61 (9th Cir. 2006) (affirming
dismissal against party for bad faith destruction of relevant
evidence); cf. Ariz. R. Civ. P. 37(d) (“A party’s or attorney’s
knowing failure to timely disclose damaging or unfavorable
information shall be grounds for imposition of serious sanctions
4
in the court’s discretion up to and including dismissal of the
claim or defense.”).
B
¶9 La Raia is not controlling in this lawsuit, which
alleges third-party spoliation. In such instances, courts have
distinguished between negligent and intentional spoliation
claims. Oliver v. Stimson Lumber Co., 993 P.2d 11, 19 (Mont.
1999); Coleman v. Eddy Potash, Inc., 905 P.2d 185, 188-89 (N.M.
1995), overruled on other grounds by Delgado v. Phelps Dodge
Chino, Inc., 34 P.3d 1148 (N.M. 2001). Lips argues that her
complaint states a cause of action under both theories of
liability. We address each in turn.
1
¶10 Generally, a cause of action for negligence arises
from a duty, a determination that a person is required to
conform to a particular standard of conduct. Gipson v. Kasey,
214 Ariz. 141, 143 ¶ 10, 150 P.3d 228, 230 (2007). Whether a
duty exists is a matter of law for the court to decide. Id.
at ¶¶ 9-10. “Duties of care may arise from special
relationships based on contract, family relations, or conduct
undertaken by the defendant,” and from public policy
considerations. Id. at 145 ¶¶ 18, 23, 150 P.3d at 232. For
example, the common law imposes a duty of reasonable care on a
party who voluntarily undertakes to protect persons or property
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from physical harm. See Restatement (Second) of Torts § 323
(1965). Here, however, Lips alleges that the negligent loss or
destruction of the prosthesis parts compromised her ability to
prove her products-liability related claims against the
manufacturer. Thus, she has alleged purely pecuniary injury
rather than any injury to her person or property.
¶11 Courts have not recognized a general duty to exercise
reasonable care for the purely economic well-being of others, as
distinguished from their physical safety or the physical safety
of their property. See Dan B. Dobbs, The Law of Torts § 452, at
329-31 (Supp. 2009). This reticence reflects concerns to avoid
imposing onerous and possibly indeterminate liability on
defendants and undesirably burdening courts with litigation.
Id. at 331, 333. Consequently, commentators have recognized
that “liability for negligence [in such cases] . . . must depend
upon the existence of some special reasons for finding a duty of
care.” William L. Prosser, The Law of Torts § 130, at 952
(1971); see, e.g., Restatement (Second) of Torts § 766C (1979)
(rejecting liability for pure pecuniary loss based on negligent
interference with contract or prospective contract).
¶12 Our cases are consistent with this approach. For
example, we recognized that interference with business relations
requires intent to interfere with an established or potential
business relationship. Antwerp Diamond Exch. of Am., Inc. v.
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Better Bus. Bureau of Maricopa County, Inc., 130 Ariz. 523, 530,
637 P.2d 733, 740 (1981), modified on other grounds by
Wagenseller v. Scottsdale Mem’l. Hosp., 147 Ariz. 370, 386, 710
P.2d 1025, 1041 (1985). On the other hand, we recognized a duty
to use reasonable care with regard to economic loss in
particular professional and business relationships. See
Flagstaff Affordable Hous. Ltd. P’ship. v. Design Alliance,
Inc., 223 Ariz. 320, ___ ¶ 45, 223 P.3d 664, 673 (2010)
(explaining that fiduciary role of attorney undergirds action
for professional malpractice); Hartford Accident & Indem. Co. v.
Aetna Cas. & Sur. Co., 164 Ariz. 286, 289, 792 P.2d 749, 752
(1990) (insurer bad faith failure to settle); Barmat v. John and
Jane Doe Partners, 155 Ariz. 519, 523, 747 P.2d 1218, 1222
(1987) (“As a matter of public policy, attorneys, accountants,
and other professionals owe special duties to their clients, and
breaches of those duties are generally recognized as torts.”).
Similarly, the tort of negligent misrepresentation recognizes a
duty to exercise reasonable care in providing information to a
limited class of recipients. See Flagstaff Affordable Hous.
Ltd., 223 Ariz. at ___ ¶ 39, 223 P.3d at 672 (discussing
negligent misrepresentation); St. Joseph’s Hosp. & Med. Ctr. v.
Reserve Life Ins. Co., 154 Ariz. 307, 312-13, 742 P.2d 808, 813-
14 (1987); Donnelly Constr. Co. v. Oberg/Hunt/Gilleland, 139
7
Ariz. 184, 189, 677 P.2d 1292, 1297 (1984), overruled on other
grounds by Gipson, 214 Ariz. at 144 ¶¶ 14-15, 150 P.3d at 231.1
¶13 Our reluctance to broadly recognize a duty to avoid
causing purely economic loss comports with the refusal of other
courts to recognize a tort for negligent spoliation. See
Fletcher v. Dorchester Mut. Ins. Co., 773 N.E.2d 420, 424-27
(Mass. 2002) (rejecting negligent spoliation as a tort because
of uncertainty in resolving issues of causation and damages);
accord Meyn v. State, 594 N.W.2d 31, 34 (Iowa 1999) (relying on
similar reasoning in affirming dismissal of negligent-spoliation
claim when hospital destroyed failed knee prosthesis despite
plaintiff’s request to preserve it for evidentiary use in future
litigation against manufacturer); Dobbs, supra, at 1280 (2001)
(concluding that negligent spoliation has been disfavored).
¶14 Lips claims, however, that she seeks recognition of
only a “limited” duty, arising from the surgeon’s request to SHC
to retain the prosthetic evidence. In general, however, a duty
of care is not created by a mere request for help, or by
unilaterally being told by another that a duty exists. See La
Raia, 150 Ariz. at 121, 722 P.2d at 289 (explaining that “the
common law generally refused to impose a duty upon one person to
1
Lips did not allege that SHC caused harm to the prosthesis
parts themselves and she conceded at oral argument that SHC’s
alleged spoliation caused no “physical harm” to the parts, as
required under Restatement (Second) of Torts § 323.
8
give aid to another”); Chiney v. Am. Drug Stores, Inc., 21
S.W.3d 14, 16 (Mo. App. 2000) (“A mere request for assistance
does not create a legal duty to help another.”); accord
Restatement (Second) of Torts § 314 (1965) (“The fact that the
actor realizes or should realize that action on his part is
necessary for another’s aid or protection does not of itself
impose upon him a duty to take such action.”). We therefore
decline Lips’s invitation to establish a negligent spoliation
tort.
2
¶15 We reach a different conclusion with regard to Lips’s
claim of intentional spoliation. Every jurisdiction that
recognizes a third-party intentional spoliation tort requires
specific intent by the defendant to disrupt or injure the
plaintiff’s lawsuit. See, e.g., Oliver, 993 P.2d at 22
(requiring “the intentional destruction of evidence designed to
disrupt or defeat the potential lawsuit”); Coleman, 905 P.2d at
189 (same). Because of this requirement, rejecting the third-
party negligent spoliation tort is not inconsistent with
recognizing the tort of intentional spoliation. Coleman, 905
P.2d at 189-90. Nor would such a position be inconsistent with
our cases, which have required proof of some culpable intent in
allowing recovery for certain economic losses. See Antwerp
Diamond Exch., 130 Ariz. at 530, 637 P.2d at 740 (stating that
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interference with business expectancy is a “specific intent”
tort).
¶16 Here, although the complaint alleges that SHC
intentionally disposed of the evidence, Lips concedes it does
not allege that SHC did so with the intent to disrupt the
litigation, nor does the complaint assert any facts from which
such an intent might reasonably be inferred. The complaint
merely asserts that Lips’s surgeon informed SHC of a “duty” to
preserve the prosthesis. This is insufficient to permit an
inference that the hospital knew of the lawsuit and acted to
disrupt or defeat it. See Cullen v. Auto-Owners Ins. Co., 218
Ariz. 417, 419-20 ¶¶ 7, 14, 189 P.3d 344, 346-47 (2008)
(“[C]ourts are limited to considering the well-pled facts and .
. . reasonable interpretations of those facts.”). Therefore,
even assuming that we would recognize the tort of third-party
intentional spoliation, the superior court correctly granted the
motion to dismiss.
III
¶17 For the foregoing reasons, we vacate ¶¶ 13-21 of the
opinion of the court of appeals and affirm the superior court’s
order dismissing the Lips’s spoliation claims.
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_____________________________________
Michael D. Ryan, Justice
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
_____________________________________
W. Scott Bales, Justice
_____________________________________
A. John Pelander, Justice
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