Tort – Civil Practice – Spoliation Of Evidence

On a question certified from a federal district court, the Supreme Court of Virginia holds that Virginia law does not recognize an independent tort of intentional or negligent interference with a prospective civil action by spoliation of evidence.

Plaintiff coal miner contended he was injured when a hose he was using to cool down a welding area burst in his hands, causing severe injuries to his face and neck. The miner brought a products liability action in the U.S. District Court for the Southern District of West Virginia. The miner alleged that for one year, defendant coal company failed to cooperate in disclosing the identities of the manufacturer and distributor of the hose, and in providing samples of the hose or allowing plaintiff’s expert to evaluate the hose on defendant’s property. The miner then filed a civil action in Virginia circuit court, and the trial court ordered defendant’s purchasing agent to sit for a deposition, and stated than an order granting the miner relief “should contain a statement that no parties are to do anything [which would affect] the integrity of the hose….” The miner alleges defendant destroyed the hose before his experts had a chance to conduct independent testing, and that due to their destruction of the allegedly defective hose, he faces significant obstacles in proving his products liability claim.

The issue whether an employer has a duty to preserve evidence of the benefit of an employee’s potential tort action against a third party is a matter of first impression in this commonwealth. We hold that under the facts and circumstances of this case, the miner has no cause of action against defendant coal company for intentional or negligent spoliation of evidence because the coal company had no legal duty to preserve the hose.

Plaintiff cites no state or federal statutes or authorities which require an employer like the coal company 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/em-ployee relationship that existed between plaintiff and the coal company, based on the record before us, does not give rise to such a duty.

We also conclude that the Virginia Workers’ Compensation act 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.

Plaintiff contends that defendant assumed a duty to preserve this hose because defendant conducted an investigation of the accident and forwarded the hose to an affiliate corporation for testing and analysis. We disagree. These facts are simply not sufficient to support plaintiff’s assertion that defendant assumed a tort duty to preserve the hose. We also reject plaintiff’s argument that the purported “order” of the circuit court imposed such duty upon defendant. Even assuming that entry of such an order would have created a duty, plaintiff conceded at the bar of this court that no order was ever entered and thus, no duty was created.

Austin v. Consolidation Coal Co. (Hassell) No. 972627, June 5, 1998; Certified Question from USDC; Thomas R. Scott Jr., Donald T. Caruth for plaintiff; Ancil G. Ramey, Monroe Jamison Stephen P. McGowan for defendant; Jonathan A. Smith-George for amicus curiae VTLA VLW 098-6-088, 8 pp.