An example of a Spoliation of Evidence issue in a Premises Liability case:
Sharon E. Petty, et al. v. The City of White House, Tennessee
Mrs. Petty was walking across a field for a football game when she stepped into a concealed hole and fractured her ankle.
The Trial Court found constructive knowledge based on the fact that grass had grown in the hole and other holes had been found and filled previously. Therefore Liability was imposed and an award of 184,044.22 granted and AFFIRMED on appeal.
In addition to the constructive knowledge issue above, the City raised a spoliation of evidence issue. The hole had been filled subsequent to the accident. The Plaintiff's attorney had given notice that he would have an expert examine the area and gave the City the opportunity to be present. The plaintiff's expert excavated (dug out the fill) so that he could examine the hole. The City moved to exclude the evidence in this regard on the basis that the expert had done more than an inspection. He had destroyed evidence. Therefore, according to the City, the proof must be excluded under Rule 34A and Rule 37. Interestingly the Court of Appeals holds that exclusion under Rule 37 is not available as a rememdy for destruction of evidence. In this regard the Court states:
The exclusion of evidence authorized pursuant to Rule 37, Tenn. R. Civ. P., is inapplicable. Instead, "[t]he doctrine of spoliation of evidence permits a court to draw a negative inference against a party that has intentionally, and for an improper purpose, destroyed, mutilated, lost, altered, or concealed evidence." Bronson v. Umphries, 138 S.W.3d 844, 854 (Tenn. Ct. App. 2003). This negative inference "arises only when the spoliation occurs in circumstances indicating fraud and a desire to suppress the truth. It does not arise when the destruction was a matter of routine with no fraudulent intent." McLean v. Bourget's Bike Works, Inc., 2005 WL 2493479, at *4 (Tenn. Ct. App. Oct.7, 2005).
