Before Schwelb and Farrell, Associate Judges, and Gallagher,
The opinion of the court was delivered by: Gallagher, Senior Judge:
In this case we answer the following two certified questions of law from the United States Court of Appeals for the District of Columbia Circuit: *fn1
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?
Certification of Question of Law, 113 F.3d 1285, No. 96-7182 (D.C. Cir. 1997).
In response to the first certified question, we hold that negligent or reckless spoliation of evidence is an independent 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 plaintiff'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. We also set forth the required elements of this cause of action and establish an equitable system for calculating damages.
On November 4, 1988, appellant Ronnie Holmes was driving a Chrysler Dodge 600 automobile rented to him by appellee Amerex Rent-A-Car when he was involved in a head-on collision with another automobile. Appellant alleges that the engine of the rented vehicle intruded into the passenger compartment causing severe and permanent injuries.
Following the collision, Amerex took possession of the wrecked automobile. Appellant's attorney made efforts to ensure that Amerex would hold the car for inspection, and on March 30, 1989, Amerex informed appellant's attorney that the car would be held for sixty days. Amerex later extended the deadline to June 15, 1989. On June 14, 1989, Amerex agreed to sell the car to appellant for $200.
On the same day, however, another agent of Amerex sold the car to a salvage yard. On June 15, 1989, the very next day, a body [710 A2d Page 848]
shop engineer severed the front of the car and removed the engine. Appellant was informed of the sale and destruction of the wrecked car approximately one week later. According to an expert in accident reconstruction, severing of the car made it, "impossible to determine within a reasonable degree of certainty whether or not the vehicle had design, manufacturing and/or maintenance defects which proximately caused Mr. Holmes' injuries."
On November 2, 1991, appellant filed suit against Chrysler and Amerex in the District of Columbia Superior Court. The original complaint alleged, inter alia, that Chrysler had negligently designed the engine of the car, and that Amerex had negligently maintained the car. Chrysler removed the case to the United States District Court for the District of Columbia. On May 26, 1992, appellant voluntarily dismissed Chrysler from the lawsuit and filed an amended complaint naming Amerex as the sole defendant.
The amended complaint against Amerex dropped the negligent maintenance claim and replaced it with six other claims, including negligent spoliation of the evidence and tortious interference with a prospective civil action by spoliation of the evidence. Amerex answered the complaint and filed a motion for summary judgment.
On April 26, 1995, the District Court granted summary judgment in favor of Amerex with regard to appellant's claims of, inter alia, negligent spoliation and tortious interference with a prospective civil action by spoliation of the evidence. The District Court held that if this court would recognize a cause of action for negligent or reckless spoliation of evidence, it would follow an approach to proximate causation that would not allow appellant to recover on the facts as presented.
Appellant filed an appeal to the United States Court of Appeals for the District of Columbia Circuit. That court decided that it could not "determine whether the district court's entry of summary judgment was proper without knowing whether the District of Columbia would recognize such a claim and, if so, the standard of proximate cause that it would apply." Certification of Question of Law, No. 96-7182, supra. Those two questions of law were certified to this court.
The first issue for consideration is whether the District of Columbia will allow a plaintiff to 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. We hold that a plaintiff may pursue such an action under District of Columbia law.
This is a case of first impression in the District of Columbia. However, we have twice dealt with a situation where a defendant negligently or recklessly destroyed evidence needed by the plaintiff in a civil suit between the two parties. In those situations, we held that "a fact-finder may be permitted to draw an adverse inference from the failure of a party to preserve evidence within his exclusive control." Williams v. Washington Hosp. Ctr., 601 A.2d 28, 31 (D.C. 1991) (citing Battocchi v. Washington Hosp. Ctr., 581 A.2d 759, 766-67 (D.C. 1990)). *fn2 In doing so, we recognized that a plaintiff has a legally protectable interest in the preservation of evidence required for securing recovery in a civil case.
We think it reasonable to extend this protection to a situation where the spoliator is not a party to the underlying lawsuit. New torts are recognized when an interest requiring protection from unreasonable interference is identified. "The common thread woven into all torts is the idea of unreasonable interference with the interests of others." W. PAGE KEETON, ET AL., PROSSER AND KEATON ON THE LAW OF TORTS § 1, at 6 (5th [710 A2d Page 849]
ed. 1984). A plaintiff advancing a novel claim in this jurisdiction therefore will not necessarily be precluded from recovering.
[I]f we are in one of the "open spaces" in the law of this jurisdiction we must fill it as well as we can, with a view to the social interests which seem to be involved and with such aid as we can get from authorities elsewhere and from "logic, and history, and custom, and utility, and the accepted standards of right conduct." We cannot evade this duty; for unless we establish a right in the plaintiff we establish a privilege or immunity in the defendant. The fact that "the question is novel in this jurisdiction" does not mean that the plaintiff cannot recover.
Clark v. Associated Retail Credit Men of Washington, D.C., 70 App. D.C. 183,185,105 F.2d 62, 64 ...