By: Jacob Strawn
Following Gardner v. R & J Express, LLC
As explained by Doug Bergeron, attorney in Spicer Rudstrom’s Knoxville office, the Tennessee Supreme Court, in Tathum v. Bridgestone Ams. Holding, Inc., 473 S.W.3d 734 (Tenn. 2015), held that intentional action is no longer a prerequisite for the imposition of sanctions against a party for the spoliation of evidence. Rather, the Tennessee Supreme Court implemented a factor test to determine whether or not sanctions are warranted against a party. Though it relied upon this new test, the Tathum Court declined to impose sanctions against the spoliating party at issue; interestingly, a plaintiff. However, in May 2018, the Tennessee Court of Appeals, in Gardner v. R & J Express, LLC, 2018 Tenn. App. LEXIS 248 (Tenn. Ct. App. May 7, 2018), used the Tathum factor test to do just the opposite: it affirmed the imposition of sanctions against a plaintiff.
In Gardner, the plaintiffs were involved in a tractor-trailer accident. The driver was hauling a trailer, owned by the defendant, with his own, personal tractor. In their suit, the plaintiffs alleged that they were injured when the trailer’s tandem axle came loose. Specifically, they alleged that the defendant had been negligent in its inspection and maintenance of the trailer and had failed to ensure it complied with federal motor vehicle safety standards. All in all, the plaintiffs claimed that the trailer was the cause of the accident, not the tractor.
During the litigation, the defendant filed a motion for sanctions against the plaintiffs for discarding their tractor. Soon after the accident, the plaintiffs had allowed their insurance company to take possession of the tractor, where it was then “scrapped out.” The defendant never had an opportunity to inspect the tractor. Because there were no other witnesses to the accident, the defendant argued that it needed to inspect the tractor to determine if the tractor could have caused the accident, as opposed to the trailer. In response, the plaintiffs argued that they did not willfully or intentionally cause the tractor to be destroyed. Ultimately, the trial court, using the Tathum factors, found that the defendant had been severely prejudiced by the destruction of the tractor, a key piece of evidence. As such, it dismissed the plaintiff’s case.
First and foremost, the trial court confirmed that intentional conduct was not a prerequisite for the imposition of sanctions for spoliation. Before signing the tractor’s title over to their insurance company, the plaintiffs had full ownership rights and control over the tractor. Moreover, the plaintiffs had enjoyed full access to the piece of evidence they claimed to have caused the accident: the trailer. In contrast, the defendant had no access to the plaintiff’s tractor. Consequently, the defendant was forced to accept the plaintiff’s theory of causation; it had no way to refute the plaintiffs’ theory through an inspection of the tractor. The plaintiffs did not need the tractor to prove their case. In fact, not only could they rely on their own testimony regarding the condition of the tractor, they had access to the trailer. On the other hand, the defendant was left with cross-examination alone.
In affirming the trial court’s ruling, the Tennessee Court of Appeals found that the trial court had made extensive findings as to each Tathum factor. While there was no evidence of intentional misconduct or fraud on the plaintiffs’ part, this was simply one factor considered by the trial court. Based on the considerations discussed above, the Court of Appeals found that the other factors weighed in the defendant’s favor. Interestingly, the plaintiffs’ own preservation demand was used against them; though they demanded that the defendant preserve the trailer, the plaintiffs totally failed to preserve the tractor. Moreover, the Court of Appeals distinguished Tathum. There, both parties, because of the spoliation of evidence, were forced to rely on expert testimony. Neither party had the opportunity to inspect the tire at issue. Here, the defendant was at a stark disadvantage; while it had not been able to complete an inspection of its key evidence, the tractor, the plaintiffs had full access to their key evidence, the trailer.
In addition, aside from the factor analysis of the Court of Appeals, the Court based much of its ruling on the applicable standard of review. When imposing sanctions, trial courts are given broad discretion. As a result, the Court of Appeals deferred to the trial court’s findings. Not only did the trial court rely on the controlling Tathum factor test, it clearly articulated its findings as to each factor. Consequently, the Court of Appeals affirmed its decision; the plaintiff’s case was dismissed.
Tathum, despite its factor test, appeared to rely on the unintentional nature of the plaintiff’s conduct. However, after Gardner, it is clear that Tennessee courts will potentially impose sanctions for the spoliation of evidence despite unintentional conduct. Consequently, litigants, even in the face of unintentional conduct, have other avenues to support a potential finding of spoliation. Moreover, as precedent confirms, if the findings of those factors are explicit and well-supported, they are likely to stand on appeal.
Jake Strawn focuses on Insurance Defense Liability, Premises Liability, Products Liability and Workers’ Compensation in the Memphis, Tennessee office.