Hills v. UPS

2010 UT 39
232 P.3d 1049
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Bruce Hills and Judith Hills, 	No. 20080826
individually, and as natural
parents and heirs of Mark D.
Hills (deceased),
Plaintiffs and Appellants,
v.
United Parcel Service, Inc.;
UPSCO United Parcel Service Co.;
Liberty Mutual Holding Company,
Inc.; Liberty Mutual Fire
Insurance Company; and Skyline 	F I L E D
Electric Company,
Defendants and Appellees. 	May 14, 2010
---
Third District, West Jordan
The Honorable Terry L. Christiansen
No. 050407708
Attorneys: 	Edward P. Moriarity, Bradley L. Booke, Salt Lake
City, Minot C. Maser, Missoula, MT, for plaintiffs
Michael E. Dyer, Kira M. Slawson, Dori K. Petersen,
Salt Lake City, Taggart Hansen, Jason C. Schwartz,
Daniel J. Davis, Denver, CO, for defendant United
Parcel Service, Inc.
Michael E. Dyer, Salt Lake City, for defendant UPSCO
United Parcel Service Co.
Gary L. Johnson, Zachary E. Peterson, Salt Lake City,
for defendant Liberty Mutual Holding Company, Inc.
and Liberty Mutual Fire Insurance Company
Dennis R. James, Brian H. Hess, Sara N. Becker, Salt
Lake City, for defendant Skyline Electric Company
---
NEHRING, Justice:
INTRODUCTION
¶1 	In this appeal we consider for the first time whether
Utah should recognize a cause of action for third-party

No. 20080826 	2
spoliation of evidence. 	Bruce and Judith Hills sued United
Parcel Service, Inc. (“UPS”) and Liberty Mutual Fire Insurance
Co. for destroying evidence related to the death of their son,
Mark Hills. 	Mark Hills’ death is the subject of a wrongful-death
suit against Skyline Electric Co. 	The district court dismissed
the Hills’ spoliation complaint under Utah Rule of Civil
Procedure 12(b)(6) because it did not state a claim inasmuch as
Utah does not recognize an independent tort of spoliation of
evidence. 	Because we decline to adopt a tort of spoliation under
the unique facts of this case, we affirm.
BACKGROUND
I. 	THE ACCIDENT AND INVESTIGATION
¶2 	In August 2003, Skyline performed electrical work on a
light fixture in a UPS mobile distribution unit. 	Skyline’s work
was fatally defective. 	Skyline failed to ground the fixture,
creating a life-threatening “hot” electrical environment within
the trailer. 	Four days later, at about 4:20 a.m., UPS employee
Mark Hills reached for a fallen package and completed the
electric circuit. 	He was electrocuted.
¶3 	UPS mounted an immediate investigation of Mark Hills’
death. 	UPS summoned Skyline personnel to the scene of the
accident at about 6:15 a.m. 	UPS instructed Skyline to
disassemble an electrical j-box that appeared to be the source of
the problem. 	During this process, a plastic wall anchor piece
disappeared.
¶4 	Approximately three hours later, UPS contacted the Utah
Occupational and Safety Health Division of the Labor Commission
(“UOSH”). 	The UOSH compliance officer who came to the scene
noted that it had already been altered. 	As a result, he was
unable to ascertain the cause of Mark Hills’ electrocution. 	The
compliance officer instructed UPS to seal the scene from any
further contact or activity until authorized by UOSH.
¶5 	The next morning, UPS’s workers’ compensation insurance
carrier, Liberty Mutual, hired an electrical contractor to
investigate the scene. 	When the UOSH compliance officer returned
to the scene that afternoon, he recognized that despite his
instructions, the scene had been altered yet again. 	As a result,
UOSH fined UPS $71,700. 	When UPS contested the citation, the
compliance officer reduced the fine to $6,000 and reclassified
the citation from “willful” to “serious.” 	The officer reasoned
that although “the plastic anchor pertaining to the cause of the
accident was removed or destroyed while under the control of

3 	No. 20080826
UPS,” the situation was mitigated because UPS provided
photographs of the plastic wall anchor taken shortly after the
accident occurred.
II. 	PROCEDURAL HISTORY
¶6 	Two lawsuits followed. 	First, the Hills filed a
wrongful-death action against Skyline. 	They alleged that
Skyline’s negligent installation of electrical equipment caused
Mark Hills’ death. 	Second, during the discovery stage of the
wrongful-death case, the Hills sued UPS, Liberty Mutual, and
Skyline for allegedly destroying evidence related to the cause of
electrocution. 	The complaint in the latter spoliation lawsuit
alleged three causes of action: 	negligence, “intentional-
misconduct,” and “tortious interference.”
¶7 	In response, UPS and Liberty Mutual moved to dismiss
the Hills’ spoliation complaint; Skyline filed cross-claims
against UPS for spoliation of evidence, opposed UPS’s motion to
dismiss, and joined the Hills’ opposition to UPS’s motion to
dismiss. 	UPS then moved to dismiss Skyline’s cross-claim on the
grounds that Utah does not recognize the tort of spoliation of
evidence. 	The district court ordered that both lawsuits be
consolidated for discovery purposes. 	The court also stayed UPS’s
and Liberty Mutual’s motions to dismiss the Hills’ spoliation
complaint pending the resolution of the wrongful-death action.
¶8 	After further discovery, Skyline admitted liability for
Mr. Hills’ death but disputed the damages alleged by his estate.
In light of Skyline’s concession of liability in the
wrongful-death action, UPS and Liberty Mutual renewed their
motions to dismiss the Hills’ spoliation complaint.
¶9 	The district court initially dismissed Skyline’s
cross-claims against UPS, the Hills’ negligence claims against
all defendants, and any part of the “intentional misconduct” and
“tortious interference” claims that duplicated damage claims in
the wrongful-death action. 	The Hills do not appeal these orders.
The court left open any claims for damages, including punitive
damages, that might be found to flow from the alleged spoliation
of evidence.
¶10 	After supplemental briefing on the pending issues, the
district court dismissed the Hills’ remaining “intentional
misconduct” and “tortious interference” claims under Utah Rule of
Civil Procedure 12(b)(6) for failure to state a claim upon which
relief may be granted. 	The court concluded that since neither of
the Hills’ claims exist in Utah, the Hills “appear to be claiming

No. 20080826 	4
an independent tort of intentional spoliation of evidence.” 	The
court found, however, that neither “the intentional nor the
negligent spoliation of evidence as an independent tort has been
adopted in Utah.” 	The court therefore applied traditional tort
law and dismissed the Hills’ spoliation claims because the Hills
failed to show any damages caused by the alleged spoliation since
Skyline had admitted liability in the underlying wrongful-death
action. 	As an alternative ground for its decision, the district
court held that the claims were barred by the exclusive-remedy
provision of the Utah Workers’ Compensation Act. 	We have
jurisdiction over this appeal pursuant to Utah Code section 78A-
3-102(3)(j) (2008).
STANDARD OF REVIEW
¶11 	Because the propriety of a dismissal under Utah Rule of
Civil Procedure 12(b)(6) for failure to state a claim is a
question of law, “we give the trial court’s ruling no deference
and review it under a correctness standard.” 	Helf v. Chevron
U.S.A., Inc., 2009 UT 11, ¶ 14, 203 P.3d 962 (internal quotation
marks omitted).
ANALYSIS
¶12 	This case presents two issues, each an issue of first
impression: 	(1) whether Utah recognizes an independent tort of
spoliation of evidence and, if so, (2) whether Utah recognizes a
dual-capacity exception to the exclusive-remedy provision of the
Utah Workers’ Compensation Act. 	Because we decline to adopt a
tort of spoliation of evidence on the facts of this case, we do
not address the dual-capacity-exception issue.
I. 	WE DECLINE TO ADOPT AN INDEPENDENT TORT OF SPOLIATION OF
EVIDENCE ON THE FACTS OF THIS CASE
¶13 	The Hills ask this court to adopt an independent tort
of spoliation of evidence. 	They contend that if we recognize
this tort, the district court will have erred when it dismissed
their complaint for failure to state a claim because the Hills
would have sufficiently stated the claim that UPS and Liberty
Mutual negligently and/or intentionally spoliated evidence
related to their wrongful-death action against Skyline.
¶14 	In contrast, UPS and Liberty Mutual urge this court to
reject an independent tort of spoliation of evidence. 	They also
contend that even if we adopt a tort of spoliation, the Hills
cannot state a claim under the tort because Skyline has admitted

5 	No. 20080826
liability in the wrongful-death action and, as a result, the
Hills cannot show damages resulting from the alleged spoliation.
¶15 	This court has consistently refused to issue advisory
opinions or resolve purely academic matters where the outcome
will not affect the rights of the parties. 	See Utah Dep’t of
Transp. v. Ivers, 2009 UT 56, ¶ 19, 218 P.3d 583; McRae v.
Jackson, 526 P.2d 1190, 1192 (Utah 1974). 	Here, Skyline has
admitted that it is liable for Mark Hills’ wrongful death. 	All
parties acknowledge that spoliation is a derivative cause of
action. 	As such, it depends on another independent claim, here
wrongful death, for its viability. 	Since Skyline has conceded
liability in the primary wrongful-death action, the damages
awarded to the Hills in that action will subsume any spoliation
damages. 	Therefore, adopting a spoliation claim under the unique
facts of this case would be a wholly-academic exercise.
A. 	The History of the Tort of Spoliation of Evidence
¶16 	Spoliation is defined as “[t]he intentional
destruction, mutilation, alteration, or concealment of evidence.”
Black’s Law Dictionary 1437 (8th ed. 2004). 	Spoliation can be
either negligent or intentional and may be carried out by a first
or third party. 	See Dowdle Butane Gas Co. v. Moore, 831 So. 2d
1124, 1128 (Miss. 2002). 	A first-party spoliator is a party to
the underlying action (or the party’s attorney) who spoliates
evidence necessary or relevant to the plaintiff’s claims against
that party. 	See id. 	A third-party spoliator is often a stranger
to the underlying action or “a party not alleged to have
committed the underlying tort as to which the lost or destroyed
evidence related.” 	Id. at 1129 (internal quotation marks
omitted).
¶17 	The tort of spoliation of evidence was first recognized
in 1984 by the California Court of Appeals. 	See Smith v.
Superior Court, 198 Cal. Rptr. 829, 832 (Cal. Ct. App. 1984).
The tort enjoyed a short life span in California. 	Fourteen years
later, in 1998, the California Supreme Court reversed course and
extinguished the tort of first-party spoliation. 	See Cedars-
Sinai Med. Ctr. v. Superior Court, 954 P.2d 511, 521 & n.4 (Cal.
1998). 	One year later, the court also extinguished the tort of
third-party spoliation. 	See Temple Cmty. Hosp. v. Superior
Court, 976 P.2d 223, 225 (Cal. 1999). 	Because most jurisdictions
have looked to the California line of cases for guidance when
faced with the question of whether to adopt a tort of spoliation,
we briefly review California’s experience with the tort. 	See,
e.g., Goff v. Harold Ives Trucking Co., 27 S.W.3d 387, 389 (Ark.
2000) (“We find it instructive that California, the first state

1 The Hills urge this court to adopt an intentional tort of
spoliation, in part, because Utah--like California--recognizes
the tort of intentional interference with prospective economic
relations. 	See Anderson Dev. Co. v. Tobias, 2005 UT 36, ¶¶ 29,
32-33, 116 P.3d 323; Leigh Furniture & Carpet Co. v. Isom, 657
P.2d 293, 303-04 (Utah 1982). 	We do not view our recognition of
the tort of intentional interference with prospective relations
as a compelling reason to adopt a wholly-new tort of spoliation
of evidence. 	Moreover, as the Hills acknowledge in their brief,
“California subsequently retreated from acknowledging
spoliation,” and the California Supreme Court later found the
court of appeals’ analogy to the tort of intentional interference
with prospective economic relations misplaced. 	See Temple Cmty.
Hosp., 976 P.2d at 231 (“[W]hen our lower courts originally--and
mistakenly--recognized a cause of action for intentional
spoliation of evidence, . . . they did so in large part because
they considered the cause of action to be analogous to the tort
(continued...)
No. 20080826 	6
to adopt spoliation as an independent tort, has changed course
and, more recently,[California’s] highest court has held
specifically that the tort would no longer be recognized.”).
¶18 	The California Court of Appeals first recognized the
tort of spoliation in Smith v. Superior Court. 	198 Cal. Rptr. at
837. 	In Smith, the plaintiff was permanently blinded when a
wheel came off another motorist’s van and crashed into her
windshield. 	Id. at 831. 	After the accident, the van was towed
to the repair shop that had customized the wheels. 	Id. 	Even
though the repair shop agreed to preserve parts of the van for
investigation, it “destroyed, lost or transferred said physical
evidence, making it impossible for the [plaintiff’s] experts to
inspect and test those parts in order to pinpoint the cause of
the failure of the wheel assembly on the van.” 	Id. 	The
plaintiff sued the repair shop for “Tortious Interference with
Prospective Civil Action By Spoliation of Evidence.” 	Id. 	The
district court dismissed the complaint because California did not
recognize a tort of spoliation. 	Id. at 832. 	The court of
appeals reversed, noting that “California has long recognized
[for] every wrong there is a remedy, and has allowed for new
torts through the legislative and judicial process.” 	Id.
(alteration in original) (internal quotation marks and citations
omitted). 	The court crafted a tort of intentional spoliation of
evidence by analogy to the already recognized tort of intentional
interference with prospective business advantage. 	Id. at 836.
The court reasoned that “a prospective civil action in a product
liability case is a valuable ‘probable expectancy’ that the court
must protect from the kind of interference alleged herein.” 1 	Id.

(...continued)
of intentional interference with prospective economic advantage.”
(emphasis added)).
7 	No. 20080826
at 837. 	Shortly after Smith, the California Court of Appeals
also adopted a tort of negligent spoliation of evidence. 	Velasco
v. Commercial Bldg. Maint. Co., 215 Cal. Rptr. 504, 506 (Cal. Ct.
App. 1985).
¶19 	Fourteen years after Smith, the California Supreme
Court reversed course and extinguished the tort of first-party
spoliation of evidence. 	In Cedars-Sinai Medical Center v.
Superior Court, the plaintiff alleged that the defendant hospital
had intentionally destroyed medical records to prevent the
plaintiff from prevailing in his medical malpractice claim
against the hospital. 	954 P.2d at 512. 	Although the California
Supreme Court acknowledged that “the intentional destruction of
evidence should be condemned,” it concluded that any benefits
created by the tort were outweighed by the costs and burdens it
would impose. 	Id. at 515. 	The court identified three particular
concerns: 	“the conflict between a tort remedy for intentional
first party spoliation and the policy against creating derivative
tort remedies for litigation-related misconduct; the strength of
existing nontort remedies for spoliation; and the uncertainty of
the fact of harm in spoliation cases.” 	Id.
¶20 	The court first noted that it “favored remedying
litigation-related misconduct by sanctions imposed within the
underlying lawsuit rather than by creating new derivative torts.”
Id. 	The court explained that derivative-tort liability for
spoliation of evidence would subvert the court’s interest in
moving matters expeditiously toward final judgment and could
possibly create endless litigation that “would be worse than
occasional miscarriages of justice.” 	Id. at 517 (internal
quotation marks omitted). 	The court also analogized evidence
spoliation to perjury, explaining that even though both
“undermine[] the search for truth and fairness by creating a
false picture of the evidence before the trier of fact . . .
there is no civil remedy in damages against a witness who commits
perjury when testifying.” 	Id. at 516.
¶21 	Similarly, the Cedars-Sinai court noted the existence
of effective nontort remedies, explaining that courts have at
their disposal various discovery sanctions, criminal penalties,
negative evidentiary inferences, and attorney discipline
procedures. 	Id. at 517-18. 	Finally, the court expressed concern
that “in a substantial proportion of spoliation cases the fact of
harm will be irreducibly uncertain” and the jury would be forced

No. 20080826 	8
to speculate as to how the spoliated evidence might have affected
the underlying litigation. 	Id. at 518. 	Due to this risk of
erroneous liability, the court was also worried that recognition
of the tort would have a perverse over-deterrence effect, causing
persons or entities to pursue costly measures to preserve
otherwise irrelevant documents and equipment. 	Id. at 519-21.
¶22 	One year after Cedars-Sinai, the California Supreme
Court also rejected the tort of intentional third-party
spoliation. 	In Temple Community Hospital v. Superior Court, the
plaintiff was badly burned during facial surgery. 	976 P.2d at
225. 	She claimed that a surgical tool produced a flame that
ignited oxygen in the anesthesia and severely burned her face.
Id. 	Because the hospital did not retain important evidence--even
though the plaintiff’s lawyer had expressly requested it to do
so--the plaintiff claimed that the hospital had interfered with
her potential products-liability action against the tool
manufacturer and obstructed her ability to recover damages for
her injuries. 	Id. at 225-26. 	As in Cedars-Sinai, the court
expressed concern that third-party spoliation claims would
produce “endless round[s] of litigation.” 	Id. at 229. 	The court
also found that “the uncertainty of the fact of harm arising from
[first party] spoliation--is equally applicable in third party
spoliation.” 	Id. at 230.
¶23 	The Temple Community court recognized, however, “that
the salient distinction between first- and third-party spoliation
of evidence is the disparity in sanctions available within the
confines of the underlying litigation.” 	Id. at 232. 	The court
further acknowledged that “[t]he evidentiary inference . . . as
well as most discovery sanctions . . . are not available when a
person who is not a party to the litigation and who is not an
agent of a party intentionally has destroyed evidence.” 	Id.
Conversely, the court explained that criminal sanctions and
limited discovery sanctions still existed, the legislature could
devise effective sanctions for spoliation, and the parties could
contractually create obligations to preserve evidence. 	Id. 	The
court concluded:
[T]he benefits of recognizing a tort cause of
action, in order to deter third party
spoliation of evidence and compensate victims
of such misconduct, are outweighed by the
burden to litigants, witnesses, and the
judicial system that would be imposed by
potentially endless litigation over a
speculative loss, and by the cost to society

2 Listed alphabetically, the states that have recognized the
tort of spoliation in some form are: 	Alabama, Smith v. Atkinson,
771 So. 2d 429, 432-35 (Ala. 2000) (permitting spoliation claim
under existing negligence law, but applying a rebuttable
presumption that the plaintiff would have recovered in the
underlying litigation); Alaska, Hibbits v. Sides, 34 P.3d 327,
328-330 (Alaska 2001) (recognizing intentional first- and
third-party spoliation); Connecticut, Rizzuto v. Davidson
Ladders, Inc., 905 A.2d 1165, 1173 (Conn. 2006) (recognizing
(continued...)
9 	No. 20080826
of promoting onerous record and evidence
retention policies.
Id. at 233.
¶24 	Relying on Cedars-Sinai and Temple Community, the
California Court of Appeals later held that California does not
recognize a cause of action for negligent spoliation of evidence
because “it would be . . . anomalous to impose tort liability
upon a negligent spoliator whose conduct is not near so egregious
as that of an intentional spoliator.” 	Lueter v. State, 115 Cal.
Rptr. 2d 68, 76 (Cal. Ct. App. 2002).
B. 	Among the Twelve States That Recognize an Independent Tort of
Spoliation in Some Form, Nearly All Recognize a Cause of Action
for Intentional Third-Party Spoliation
¶25 	In the twenty-five years since the tort of spoliation
of evidence was first recognized in California, the tort “has not
been widely adopted . . . nor has much agreement emerged on its
contours and limitations.” 	Dowdle Butane Gas Co. v. Moore, 831
So. 2d 1124, 1128 (Miss. 2002). 	Most states have applied the
reasoning of the California Supreme Court and continue to rely on
traditional nontort remedies, inadequate as they may be. 	See,
e.g., id. at 1132-35. 	Other states have refused to adopt an
independent spoliation tort but permit recovery for spoliation
under traditional negligence law. 	See, e.g., Boyd v. Travelers
Ins. Co., 652 N.E.2d 267, 270 (Ill. 1995). 	Still others have
declined to adopt the tort under the unique facts presented on
appeal. 	See, e.g., Sharpnack v. Hoffinger Indus., Inc., 499
S.E.2d 363, 365 (Ga. Ct. App. 1998) (declining to adopt a tort of
spoliation because “[t]he evidence which plaintiff maintains was
spoliated . . . could not have affected the outcome of the
[plaintiff’s] underlying claims”).
¶26 	Conversely, twelve jurisdictions have recognized and
retained the tort of spoliation of evidence in some form. 2

2 (...continued)
intentional first-party spoliation); District of Columbia, Holmes
v. Amerex Rent-a-Car, 710 A.2d 846, 847 (D.C. 1998) (recognizing
“negligent or reckless spoliation of evidence” as an “independent
and actionable tort”); Florida, Cont’l Ins. Co. v. Herman, 576
So. 2d 313, 315 (Fla. Dist. Ct. App. 1990) (adopting cause of
action for negligent spoliation of evidence), but see Martino v.
Wal-Mart Stores, Inc., 908 So. 2d 342, 347 (Fla. 2005) (rejecting
any cause of action for first-party spoliation); Indiana,
Thompson v. Owensby, 704 N.E.2d 134, 140 (Ind. Ct. App. 1998) (It
is the plaintiff’s prerogative to “pursue a tort action rather
than seeking a discovery sanction or . . . evidentiary
inference.”); Louisiana, McCool v. Beauregard Mem. Hosp., 814 So.
2d 116, 118 (La. Ct. App. 2002) (recognizing a tort action
“against someone who has impaired the party’s ability to
institute or prove a civil claim due to negligent or intentional
spoliation of evidence”); Montana, Oliver v. Stimson Lumber Co.,
993 P.2d 11, 19-22 (Mont. 1999) (adopting negligent third-party
spoliation and expressing a willingness to adopt intentional
spoliation); New Jersey, Tartaglia v. UBS PaineWebber, Inc., 961
A.2d 1167, 1187-91 (N.J. 2008) (permitting a remedy for
litigation-related spoliation under the already adopted tort of
fraudulent concealment); New Mexico, Coleman v. Eddy Potash,
Inc., 905 P.2d 185, 189-91 (N.M. 1995) (recognizing an
intentional spoliation tort, but rejecting a negligent spoliation
tort), overruled on other grounds by Delgado v. Phelps Dodge
Chino, Inc., 34 P.3d 1148, 1153-55 & n.3 (N.M. 2001); Ohio, Smith
v. Howard Johnson Co., 615 N.E.2d 1037, 1038 (Ohio 1993)
(recognizing a cause of action“between the parties to the primary
action and against third parties” “for [willful] interference
with or destruction of evidence”); and West Virginia, Hannah v.
Heeter, 584 S.E.2d 560, 568-74 (W. Va. 2003) (recognizing
negligent third-party spoliation and intentional first- or third-
party spoliation).
3 The elements for negligent and intentional spoliation vary
by jurisdiction. 	In general, however, most states that have
adopted an intentional spoliation tort require some variation of
the following elements:
(1) pending or probable litigation involving
the plaintiff, (2) knowledge on the part of
[the] defendant that litigation exists or is
probable, (3) willful destruction of evidence
by [the] defendant designed to disrupt the
plaintiff’s case, (4) disruption of the
(continued...)
No. 20080826 	10
Although the precise contours of the tort are amorphous, 3 courts

3 (...continued)
plaintiff’s case, and (5) damages proximately
caused by the defendant’s acts.
Rizzuto, 905 A.2d at 1178 (alterations in original) (internal
quotation marks omitted).
The basic elements of a tort of negligent spoliation are
neatly summarized by the Montana Supreme Court:
(1) existence of a potential civil action;
(2) a legal or contractual duty to preserve
evidence relevant to that action;
(3) destruction of that evidence;
(4) significant impairment of the ability to
prove the potential civil action;
(5) a causal connection between the
destruction of the evidence and the inability
to prove the lawsuit;
(6) a significant possibility of success of
the potential civil action if the evidence
were available; and
(7) damages.
Oliver, 993 P.2d at 19.
11 	No. 20080826
that have adopted the tort tend to rely on two basic policy
justifications: 	first, to provide a remedy for spoliation
victims who would otherwise be unable to recover in their
underlying lawsuits; and second, to deter future spoliation of
evidence. 	See, e.g., Rizzuto v. Davidson Ladders, Inc., 905 A.2d
1165, 1178 (Conn. 2006) (“[E]xisting nontort remedies are
insufficient to compensate victims of spoliation and to deter
future spoliation.”).
¶27 	With these two justifications in mind, a general
pattern emerges: 	courts prefer to recognize a cause of action
for intentional spoliation over negligent spoliation, and are
more likely to recognize third-party spoliation than first-party
spoliation. 	The combined result is that states are least likely
to recognize a cause of action for first-party negligent
spoliation and most likely to recognize third-party intentional
spoliation. 	See, e.g., Hannah v. Heeter, 584 S.E.2d 560, 568-74
(W. Va. 2003) (declining to recognize first-party negligent
spoliation, but adopting all other forms of the tort).
¶28 	This pattern is not surprising. 	An intentional
spoliator is far more culpable than a negligent spoliator. 	See
Lueter v. State, 115 Cal. Rptr. 2d 68, 76 (Cal. Ct. App. 2002)
(“[I]t would be . . . anomalous to impose tort liability upon a
negligent spoliator whose conduct is not near so egregious as
that of an intentional spoliator.”); Coleman v. Eddy Potash,

4 See supra note 2.
No. 20080826 	12
Inc., 905 P.2d 185, 189 (N.M. 1995) (“[T]he intentional
destruction of potential evidence in order to disrupt or defeat
another person’s right of recovery is highly improper and cannot
be justified.”), overruled on other grounds by Delgado v. Phelps
Dodge Chino, Inc., 34 P.3d 1148, 1153-55 & n.3 (N.M. 2001). 	And
some courts permit “an action for negligent spoliation [to] be
stated under existing negligence law.” 	See, e.g., Boyd, 652
N.E.2d at 270.
¶29 	The preference for a third-party spoliation tort is
even more defensible. 	Like most courts, I agree that traditional
nontort remedies adequately deter first-party spoliation and
fairly compensate victims. 	See, e.g., Trevino v. Ortega, 969
S.W.2d 950, 961 (Tex. 1998) (“Without creating a new cause of
action, there are still a variety of remedies available to punish
spoliators, deter future spoliators, and protect nonspoliators
prejudiced by evidence destruction.”). 	Third-party spoliation,
however, paints a different picture. 	Almost all states–-
including those that have refused to adopt a tort of spoliation–-
acknowledge that when dealing with third-party spoliators,
traditional nontort remedies such as evidentiary inferences,
discovery sanctions, and attorney disciplinary measures are
unavailable or largely ineffectual. 	See, e.g., Hibbits v. Sides,
34 P.3d 327, 329 (Alaska 2001) (“Given the limited availability
of evidentiary sanctions in the third-party context, . . . there
is reason to recognize intentional third-party spoliation as a
tort even if first-party spoliation is not so recognized.”);
Dowdle Butane Gas Co., 831 So. 2d at 1128 (rejecting a third-
party spoliation tort but conceding that “not all of the
litigation-related remedies for spoliation apply to third
parties,” which is a distinction that “has proved crucial in many
jurisdictions”). 	Accordingly, while most states have rejected a
cause of action for first-party spoliation, nearly all
jurisdictions that have adopted the tort in some form recognize a
tort for third-party spoliation. 4 	In other words, if a state
were to adopt any form of spoliation tort, it would most likely
be a third-party intentional spoliation tort.
¶30 	The fact that all jurisdictions concede that
traditional nontort remedies will be unavailing as against third-
party spoliators also highlights the basic “philosophical divide”
between courts that choose to adopt a third-party spoliation tort
and those that reject the tort. 	See id. 	On one side of the
divide are courts that place a higher value on judicial
efficiency and finality of judgments; on the other side are
courts that value the need to provide a remedy to victims of

5 I am not convinced that a cause of action for negligent
spoliation would deter negligent spoliators. 	It seems unlikely
that a negligent spoliator would change his behavior--precisely
because it is not intentional--simply because of the possibility
of increased legal liability.
13 	No. 20080826
spoliation and to deter future evidence spoliation. 	Compare
e.g., Temple Cmty. Hosp. v. Superior Court, 976 P.2d 223, 233
(Cal. 1999) (“[W]e conclude that the benefits of recognizing a
tort cause of action, in order to deter third-party spoliation of
evidence and compensate victims of such misconduct, are
outweighed by the burden to litigants, witnesses, and the
judicial system that would be imposed by potentially endless
litigation over a speculative loss, and by the cost to society of
promoting onerous record and evidence retention policies.”) with
Rizzuto, 905 A.2d at 1178 (“[E]xisting nontort remedies are
insufficient to compensate victims of spoliation and to deter
future spoliation when a first party defendant destroys evidence
intentionally.”). 	Although we value spoliation deterrence and
victim compensation, because Skyline has admitted liability in
the Hills’ underlying wrongful-death action, we decline to adopt
a tort of spoliation on the unique facts of this case.
C. 	We Decline to Adopt a Tort of Spoliation in This Case Because
Skyline Has Admitted Liability in the Hills’ Underlying Wrongful-
Death Action
¶31 	On appeal, the Hills allege that UPS and Liberty Mutual
negligently and/or intentionally altered or destroyed evidence
related to their underlying wrongful-death action against
Skyline. 	Because UPS and Liberty Mutual are not parties in the
wrongful-death case, first-party spoliation is not at issue here;
the issue properly framed is whether this court will recognize an
independent tort of negligent and/or intentional third-party
spoliation of evidence.
¶32 	I am doubtful that existing nontort remedies
sufficiently deter intentional third-party spoliators or
adequately compensate victims of such spoliation. 	When third
parties are involved, the incentive to spoliate evidence may
simply be too great. 5 	As Harvard Law School professor Charles
Nesson has explained, the incentive to destroy evidence is best
appreciated by imagining the spoliator as an “amoral
calculator . . . who cares only for the material consequences of
his actions.” 	Charles R. Nesson, Incentives to Spoliate Evidence
in Civil Litigation: 	The Need for Vigorous Judicial Action, 13
Cardozo L. Rev. 793, 795 (1991). 	This amoral spoliator

6 Because this court does not adopt an independent tort of
spoliation today, I would especially encourage prosecutors,
courts, and administrative agencies to use existing nontort
remedies whenever applicable. 	For instance, a district court can
require parties that abuse the discovery process to pay “the
reasonable expenses incurred in obtaining the order [to produce
the requested discovery], including attorney fees.” 	See Utah R.
Civ. P. 37(a)(4)(A). 	Spoliators are also subject to criminal
charges for tampering with evidence under Utah Code section 76-8-
510.5(2) (2008) or obstruction of justice under Utah Code section
76-8-306 (Supp. 2009). 	Finally, administrative remedies–-like
the fine levied against UPS in this case--may be available when
parties destroy evidence in violation of Utah Administrative Code
Rule 614-1-5(C)(2).
No. 20080826 	14
is a pure cost-benefit calculator, moved by
the simple calculus of risk against
advantage. 	Unlike good men and women who are
influenced by conscience, the [spoliator] is
unmoved by soft considerations of ethics and
morality except as they translate . . . into
bottom line effects. 	While the good man
feels obliged by conscience to obey the law,
the [spoliator] will commit the tort or crime
if the expected gain exceeds the expected
loss.
Id. 	I agree with Professor Nesson and fear that without tort
liability, third parties--especially corporate entities--will
conclude that the benefits of evidence spoliation outweigh the
unlikely imposition of court sanctions, administrative fines, and
criminal penalties. 6 	Indeed, as this case shows, evidence tends
to disappear when the risk of seldom-enforced nontort remedies
are weighed against the risk of payment on a wrongful-death
claim. 	This is especially problematic considering that the
intentional spoliation of evidence threatens to undermine the
integrity of our entire legal system.
¶33 	Notwithstanding the need to deter third-party
spoliation and compensate its victims, this is not an appropriate
case to adopt an independent tort of third-party spoliation of
evidence. 	Of course, I recognize that the holding in this case
subverts my expressed intolerance for spoliation; my expression
of contempt for third-party spoliation is, in light of this case,
little more than rhetoric.
¶34 	Regardless of the rhetorical nature of our decision
today, Skyline has already admitted liability in the Hills’

15 	No. 20080826
underlying wrongful-death action. 	Because any evidence spoliated
by UPS and Liberty Mutual relates only to proving liability in
the underlying action, not damages, the Hills’ legal remedy is
unaffected by the alleged spoliation of evidence. 	Therefore, the
Hills cannot show a causal link between the damages asserted in
their underlying wrongful-death claim and the alleged spoliation
of evidence by UPS and Liberty Mutual. 	As a result, “[t]his
appeal presents simply an abstract question of law which does not
rest upon existing facts or rights” that would affect the outcome
in the underlying action. 	McRae v. Jackson, 526 P.2d 1190, 1192
(Utah 1974). 	We therefore decline to adopt an independent tort
of third-party spoliation on the facts of this case. 	Whether I
would adopt a tort of third-party spoliation under different
facts remains an open question.
CONCLUSION
¶35 	The independent tort of spoliation of evidence is a
recent and highly debated cause of action that has not been
widely adopted. 	Those states that recognize the tort have relied
on two primary justifications for its adoption: 	first, to allow
victims of spoliation a way to recover damages when they are
unable to prove their underlying case because of the spoliation;
and second, to deter future spoliation of evidence.
¶36 	Here, the Hills’ measure of damages is unaffected by
the spoliated evidence because Skyline has admitted liability in
the underlying wrongful-death action. 	We therefore refuse to
adopt the tort of spoliation under the unique facts of this case
because it would not affect the outcome in the Hills’
wrongful-death action. 	Whether I would adopt an independent
cause of action for intentional third-party spoliation is an open
question. 	Accordingly, this court affirms the order of the
district court dismissing the Hills’ spoliation complaint under
Utah Rule of Civil Procedure 12(b)(6) for failure to state a
claim upon which relief may be granted.
---
DURRANT, Associate Chief Justice, concurring in part and
dissenting in part:
¶37 	I agree with Justice Nehring’s conclusion that it is
unnecessary for us to determine whether to adopt the tort of
spoliation of evidence in this case. 	As he correctly points out,
given Skyline’s stipulation of liability in the wrongful death
suit, “the Hills’ legal remedy is unaffected by the alleged
spoliation of evidence,” because “any evidence spoliated by UPS

No. 20080826 	16
and Liberty Mutual relates only to proving liability in the
underlying action.” 	That is, the alleged interference with, or
failure to preserve the integrity of, the scene of the accident
has not damaged the Hills’ ability to recover for Mark Hills’
wrongful death.
¶38 	I believe that this conclusion makes it unnecessary for
us to examine the status of the tort of spoliation of evidence in
other jurisdictions and to speculate about the policies that
would animate this court to adopt it. 	I agree with Justice
Nehring that where the evidence that a party claims was spoliated
is only probative of an issue that the party has no need to
prove, that party cannot state a claim for spoliation of
evidence. 	This holding would apply regardless of whether, and to
what extent, different facts might support a spoliation claim in
Utah.
¶39 	Given this conclusion, I decline to join in the portion
of Justice Nehring’s opinion that he acknowledges to be a largely
rhetorical exercise. 	While his examination of the status of this
law in other jurisdictions is apparently very thorough, and while
I do not disagree with the value of safeguarding the integrity of
the judiciary, the consequence of such extensive dicta is that we
risk advising lower courts and future litigants with regard to an
issue we expressly decline to decide. 	Accordingly, while I
concur with Justice Nehring’s conclusion that we need not
determine in this case whether to adopt the tort of spoliation of
evidence, I decline to join the remainder of his opinion.
---
¶40 	Chief Justice Durham, Justice Wilkins, and Justice
Parrish concur in Associate Chief Justice Durrant’s concurring
and dissenting opinion.
---