As in the majority of the jurisdictions, negligent spoliation of evidence is not a cause of action in South Carolina.
The South Carolina Supreme Court reversed the court of appeals’ decision because it found that negligent spoliation is not a cause of action in South Carolina. Nor should the law be changed to recognize this cause of action because (i) public policy considerations weigh heavily against adopting the tort in the State; (ii) the damages calculation is purely speculative; and (iii) there is potential for duplicative and inconsistent litigation.
These are the facts: Steven C. Hobbs, an optometrist, sublet space from Cole Vision Corporation and Sears (collectively ”Sublessor”). The sublease agreement contained indemnity provisions whereby Hobbs agreed to defend Sublessor against any and all liabilities arising from events occurring in the location as a result of Hobbs’ activities. This agreement also purportedly required Sublessor to retain copies of Hobbs’ patient records. Hobbs obtained professional liability insurance with NCMIC Insurance Company (“NCMIC”). Mary and John Lewis (“Lewises”) sued Hobbs and Sublessor based on Hobbs’ alleged malpractice in failing to properly diagnose and treat Mrs. Lewis. Sublessor brought action for declaratory relief after Hobbs and NCMIC refused to defend them in the malpractice suit. In the meantime the Lewises settled their case.
Sublessor sought, among other things, a declaration that Hobbs and NCMIC were obligated to defend and indemnify them pursuant to the sublease agreement. Hobbs counterclaimed for negligent spoliation of evidence against Sublessor based on the loss of Mrs. Lewis’s patient profile sheet. Sublessor’s defense was failure to state a claim. Sublessor filed a motion to dismiss pursuant to Rule 12(b)(6), SCRCP, on the ground that South Carolina does not recognize a cause of action for spoliation of evidence. The circuit court granted the motion. Hobbs appealed. The Court of Appeals reversed, finding that Hobbs pled facts sufficient to constitute a general negligence cause of action (but without determining whether South Carolina recognizes a cause of action for negligent spoliation).
The Supreme Court refused to recognize the tort of spoliation of evidence. This is the reasoning. First, this is the position of the majority of the jurisdictions. Second, “public policy considerations weigh heavily against adopting the tort in this State.” In fact, (i) other remedies are already available with respect to first-party claims; and (ii) the calculation of damage is too speculative.
In conclusion, the Court reversed the appellate court’s decision, declining to recognize the tort of negligent spoliation of evidence.
The full text is available at http://www.judicial.state.sc.us…