Spoliation of evidence
The state of Ohio recognizes spoliation of evidence as a separate cause of action, which means that it can be a separate claim from the underlying case. Spoliation generally involves the destruction of evidence that is relevant to a civil action that results in harm to a party’s case. Some states recognize it as a separate cause of action, which means that it can be a claim separate from the underlying case. Ohio is one of those states.
Duty to preserve evidence
A defendant in Ohio has a duty to preserve evidence that is relevant to the action, even where litigation has not yet commenced but is probable. See Smith v. Howard Johnson Co., 67 Ohio St. 3d 28, 29, 615 N.E. 2d 1037 (1993). Even so, a defendant’s destruction of evidence does not give rise to an independent tort of spoliation of evidence unless the defendant’s destruction of evidence was willful and designed to disrupt the plaintiff’s case. Id. The term “willful” connotes an intentional act. In contrast to an intentional act, a negligent act requires only that the actor had a duty to the other party and breached that duty.
Sanctions during discovery
The spoliation of evidence could also give rise to a sanction during discovery. Courts have broad discretion in imposing sanctions. Sanctions could range from an evidentiary presumption that the spoliated evidence was unfavorable to the at-fault party to the dismissal of all or part of an action.
What is the difference between intentional and negligent spoliation
Therefore, the difference between intentional and negligent spoliation is the spoliator’s state of mind. It is important to ask whether the spoliator deliberately destroyed the evidence, as this could mean the difference between whether a separate, actionable spoliation claim exists. Another question for consideration is whether a sanction in the underlying case would be appropriate. And even if a sanction is appropriate, it could help to determine the severity of the sanction.
Preserving the scene is so important because it preserves evidence, reduces the spread of harmful or misinformation, and may eliminate a defense of spoliation or tampering by adverse parties. Failure to properly secure a scene can cause significant hurdles when trying to recover on a loss. If you have any questions or would like to discuss how spoliation may affect your claim, schedule a consultation with one of our subrogation lawyers.