Joseph S. Bavaro and Daniel Justus Solinsky ()
Horror movie folklore dictates that a vampire is killed by driving a stake through its heart. Like any good horror franchise, however, somehow the vampire survives, assuming a different form in the sequel.
So it goes for the “spoliation” cause of action in New York state. The protagonist in this movie, the Court of Appeals, drove a stake through the heart of the spoliation cause of action with its decision in Ortega v. City of New York, 9 N.Y.3d 69 (2007). However, some form of the cause of action appears to have survived: A common law claim of tortious interference by an employer with an employee’s cause of action against a third party.
This cause of action is rare and specifically fact driven, but much like a vampire, it was around long before the death knell and will continue to lurk long afterwards. And it does not appear to have aged a day.
This common law tortious interference claim works as follows: An employee is injured while in the course of his or her employment. The item which caused the injury (typically a machine or other dangerous item) is in the employer’s possession. The employee has retained an attorney that launches an investigation into the item that caused the injury. Then, through negligence, intentional act or fraud, the employer rids itself of the item or destroyed it without leaving behind any means for the employee to test or examine the item.
As Workers’ Compensation is normally a complete bar to recovery for injury to an employee against an employer, perhaps the only viable claim is negligence or strict products liability against the manufacturer, distributor or seller of the item that caused the injury. With a looming possibility of contribution—should any such claim come to fruition—the employer is effectively incentivized to rid itself of the item in question to avoid any liability, or ruin a relationship it might have with the manufacturer or distributor of that item.
To protect the employee in such a situation, the courts have recognized a common law claim: If the employer had a duty to the employee to retain such an item and the item was disposed of notwithstanding that duty, a claim against the defendant for tortious interference could arise by the employee against the employer.
In 2007, to the relief of spoliators everywhere, Ortega v. City of New York effectively rang the death knell for an independent spoliation cause of action in New York State. In Ortega, the plaintiffs were occupants of a van that suddenly burst into flames. 9 N.Y.3d at 73. The defendant City took possession of the vehicle in connection with its investigation of the accident. Id. Despite court orders directing the defendant City to suspend its normal practice of destroying the vehicle (deemed abandoned) and preserve the vehicle for inspection by the plaintiffs, and the City destroyed the vehicle and with it any possibility for the plaintiffs to assert a products liability claim. Id. at 73-74.
The plaintiffs commenced an action against the City based on the independent tort of spoliation. When the Court of Appeals examined this case in 2007, it found that several other states across the nation addressed the independent tort; some had recognized the tort and others refused. Ultimately, the court held, “we join the majority of jurisdictions to consider the issue … and decline to recognize spoliation of evidence as an independent tort claim.” Id. at 83.
Importantly (for our purposes) Ortega was decided on the heels of another Court of Appeals case, Metlife Auto & Home v. Joe Basil Chevrolet, 1 N.Y.3d 478 (2004). In Metlife, the court did not reach the determination that Ortega reached regarding the cause of action in general. The Metlife court noted that New York courts have specifically rejected such a spoliation cause of action, yet emphasized that there were instances in which courts have dealt with spoliation “traditional[ly]” (1 N.Y.3d at 482-83) such as “ CPLR 3126 where sanctions including dismissal have been imposed … [s]imilarly the Appellate Divisions have held that spoliation of evidence by an employer may support a common-law cause of action when such spoliation impairs an employee’s right to sue a third-party tortfeasor.” Id.
The court in Ortega, (decided just three years after Metlife) never addressed the common law cause of action of the impairment of an employee’s right to sue a third-party tortfeasor. Indeed, the distinction between this common law cause of action and an independent tort of spoliation has been recognized for years prior to Ortega.
In the oft-cited Weigl v. Quincy Specialties, 158 Misc.2d 753, 777 (Sup. Ct. New York Cty. 1993) (Tom, J.)), Justice Peter Tom (when he was a trial court judge) noted that “[w]hile New York courts do not view spoliation of evidence as an actionable tort, this jurisdiction does recognize a common law cause of action against an employer for negligently and intentionally impairing an employee’s right to sue a third party tort-feasor notwithstanding the employee having received Workers’ Compensation benefits.”
To date, a handful of cases at the trial court level have determined that the common law cause of action against an employer has survived Ortega:
First, Alegria v. Metro Metal Prods., 29 Misc.3d 591 (Sup. Ct. Kings Cty. 2010) (Battaglia, J.). In Alegria, Justice Jack M. Battaglia weighed in on the Ortega court’s omission of the common law tort after Metlife, stating: “It is noteworthy, perhaps even quite surprising, that the court’s discussion of case law in Ortega is limited to other jurisdictions, and does not mention the employee/employer cases that it considered so central to its decisions in Metlife which the court references in the very first sentence of its opinion [citations omitted].” Alegria, 29 Misc.3d at 596-97.
Further, in allowing the cause of action to go forward, Battaglia declared, “[t]his court is unwilling to assume that in Ortega, the Court of Appeals would, without even a mention, disapprove a line of authority that it, only shortly before, relied upon in Metlife.” Id.
Next, in Blumenthal v. Zacklift International, 2008 N.Y. Slip Op 31679 (Sup. Ct. Kings Cty. 2008)(Solomon, J.), the court stressed: “It must also be noted that the tort of third-party negligent spoliation of evidence is not cognizable in his state [citing Ortega]. It has been held, however, that an employee can maintain a common law action against his or her employer if the employer’s actions impaired the employee’s right to recover damages from a third-party tortfeasor.”
The court in Blumenthal ultimately dismissed this cause of action, noting that “plaintiff’s right to sue [the manufacturer] has not been impaired, since he can establish that the Lift at issue herein was defectively designed or manufactured in reliance upon other evidence.” Blumenthal, 2008 N.Y. Slip Op. 31679, at 33.
Neither of these cases were appealed and, as of the time of this writing, no appellate court has ruled on the common law right in this employer/employee scenario. It appears that this common law right has survived Ortega and will continue to withstand trial court and likely appellate scrutiny. As long as the coffin remains open even a crack, the vampire lives on.