Davis v. Wal-Mart Stores, Inc.

[This decision has been published in Ohio Official Reports at 

93 Ohio St.3d 488

.]




   DAVIS, EXR., APPELLEE, v. WAL-MART STORES, INC., D.B.A. SAM’S CLUB,
                                   APPELLANT, ET AL.
             [Cite as Davis v. Wal-Mart Stores, Inc., 

2001-Ohio-1593

.]
Civil procedure—Torts—Claims for spoliation of evidence may be brought after
        primary action has been concluded only when evidence of spoliation is not
        discovered until after the conclusion of the primary action.
     (No. 00-1145—Submitted March 28, 2001—Decided October 31, 2001.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 75224.
                                  __________________
                               SYLLABUS OF THE COURT
Claims for spoliation of evidence may be brought after the primary action has been
        concluded only when evidence of spoliation is not discovered until after the
        conclusion of the primary action.
                                  __________________
        PFEIFER, J.
        {¶ 1} On September 10, 1992, Thomas Davis was fatally injured, while
operating a forklift, when the driver of the produce truck he was unloading pulled
away from the loading dock prematurely. As a result of this incident, appellee
Bernadine Davis, the wife of Thomas Davis, brought an action against appellant
Wal-Mart Stores, Inc. (“Wal-Mart”) and a co-worker. Davis settled the claim with
the co-worker and dismissed her survivor claim against Wal-Mart.                    Davis’s
remaining claim for wrongful death against Wal-Mart, based upon an intentional
tort, was tried to a jury.
        {¶ 2} The jury found for Davis and awarded damages. Thereafter, the trial
court granted an award of prejudgment interest. The court of appeals affirmed, and
                              SUPREME COURT OF OHIO




we denied review. Davis v. Sam’s Club (1997), 

77 Ohio St.3d 1526

, 

674 N.E.2d 377

.
        {¶ 3} During the course of post-trial proceedings for prejudgment interest,
Davis came to believe that Wal-Mart had withheld certain evidence and documents
and that several employees of Wal-Mart had provided false or misleading testimony
during their depositions in the intentional tort case. Davis returned to the trial court
and filed a new action, alleging that Wal-Mart’s spoliation of evidence had led her
to dismiss her survivor claim. Davis claimed that this dismissal prevented her from
seeking additional compensatory and punitive damages. Wal-Mart moved for
summary judgment on Davis’s claim of tortious interference with evidence, which
was granted, based on res judicata.
        {¶ 4} The court of appeals reversed and remanded, stating that the present
claim of tortious interference and the previous claim of intentional tort did not arise
out of the same set of operative facts and, therefore, res judicata did not bar the
claim for tortious interference. The cause is now before this court pursuant to the
allowance of a discretionary appeal.
        {¶ 5} In its first proposition of law, Wal-Mart argues that the spoliation
claim should be precluded because the spoliation was discovered or should have
been discovered before the resolution of the original litigation.          As primary
authority for this proposition, Wal-Mart cites Grava v. Parkman Twp. (1995), 

73 Ohio St.3d 379

, 

653 N.E.2d 226

. The syllabus of Grava states: “A valid, final
judgment rendered upon the merits bars all subsequent actions based upon any
claim arising out of the transaction or occurrence that was the subject matter of the
previous action.” (Citations omitted.)
        {¶ 6} While discussing this legal standard, the court of appeals in the case
at bar stated:
        “For res judicata to apply under this theory, however, defendants’ acts of
allegedly concealing, destroying or intentionally interfering with evidence must




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                                 January Term, 2001




arise from the same ‘transaction or occurrence’ as that which [led] to decedent’s
death in the intentional tort wrongful death action. * * *
        “The ‘occurrence’ which triggered the intentional tort case was the
decedent’s death. The term ‘transaction’ may be broader than ‘occurrence’ and was
defined in Grava to encompass events which arise from a ‘common nucleus of
operative facts.’ [Grava, 73 Ohio St.3d at 382, 

653 N.E.2d at 229

.] Concealing,
destroying, misrepresenting, or intentionally interfering with evidence after a
workplace death does not arise from a ‘common nucleus of operative facts’ with
those which arose before the death.” Davis v. Wal-Mart Stores, Inc. (May 8, 2000),
Cuyahoga App. No. 75224, unreported, 

2000 WL 504114

, at *4.
        {¶ 7} We could not agree more.
        {¶ 8} The court of appeals continued by stating:
        “To recover on an intentional tort claim, the claimant must show that the
employer disregarded a risk of injury or death to the employee that was
substantially certain to occur. Nothing in the record shows that any other issue was
raised or submitted to the jury in the intentional tort case.
        “Defendants have likewise not shown that a motion for prejudgment interest
alleging a failure to make a good faith effort to settle an intentional tort case
precludes subsequently raising a spoliation of evidence claim. This is particularly
true, as in the case at bar, when alleged acts of concealing, destroying,
misrepresenting, and/or intentionally interfering with evidence were not discovered
until after the final judgment in the intentional tort litigation.” 

Id.

        {¶ 9} Again we agree with the court of appeals completely.
        {¶ 10} This case was decided originally when the trial court granted
summary judgment. “[S]ummary judgment shall not be rendered unless it appears
from the evidence or stipulation, and only from the evidence or stipulation, that
reasonable minds can come to but one conclusion and that conclusion is adverse to
the party against whom the motion for summary judgment is made, that party being




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entitled to have the evidence or stipulation construed most strongly in the party’s
favor.” Civ.R. 56(C).
       {¶ 11} It is possible that reasonable minds could conclude that the basis for
the second action, the alleged misrepresentations and withholding of evidence,
occurred after and independent of the first action, based upon the truck’s pulling
away from the loading dock prematurely and tragically. Therefore, it is not possible
for reasonable minds to reach but one conclusion, one that is adverse to Davis,
namely, that the spoliation claim and the intentional tort claim arose out of a
common nucleus of operative facts. However, such a conclusion is essential to
uphold the trial court’s grant of summary judgment based on res judicata.
Accordingly, res judicata is inapplicable, and the grant of summary judgment was
improper. We reject Wal-Mart’s first proposition of law.
       {¶ 12} We further note that res judicata is not a shield to protect the
blameworthy. “ ‘The doctrine of res judicata is not a mere matter of practice or
procedure inherited from a more technical time, but rather a rule of fundamental
and substantial justice, or public policy and of private peace. The doctrine may be
said to adhere in legal systems as a rule of justice. Hence, the position has been
taken that the doctrine of res judicata is to be applied in particular situations as
fairness and justice require, and that it is not to be applied so rigidly as to defeat
the ends of justice or so as to work an injustice.’ ” Grava, 73 Ohio St.3d at 386,

653 N.E.2d at 232

 (Douglas, J., dissenting), quoting 46 American Jurisprudence 2d
(1994) 786-787, Judgments, Section 522. There is something wrong with a legal
doctrine that could be used in a situation like the one before us to reward a party
for misrepresenting or destroying evidence. Whether Wal-Mart actually committed
those acts is for a jury to determine. Given the facts of this case, Wal-Mart will not
be shielded by res judicata.
       {¶ 13} In its second proposition of law, Wal-Mart argues that “claims for
spoliation of evidence should be brought at the same time as, or as an amendment




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                                      January Term, 2001




to, the primary action.” We stated in Smith v. Howard Johnson Co., Inc. (1993),

67 Ohio St.3d 28, 29

, 

615 N.E.2d 1037, 1038

, that spoliation claims “may be
brought at the same time as the primary action.” “May” is permissive. Had we
intended for all spoliation claims to be brought at the same time as the primary
action we would have chosen “must” or “shall.” We did not. To clarify Smith,
today we hold that claims for spoliation of evidence may be brought after the
primary action has been concluded only when evidence of spoliation is not
discovered until after the conclusion of the primary action. We reject Wal-Mart’s
second proposition of law.1
                                                                             Judgment affirmed.
         Moyer, C.J., and DOUGLAS, J., concur.
         LUNDBERG STRATTON, J., concurs except that she dissents from footnote 1.
         DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur in part and dissent in
part.
         COOK, J., dissents.
                                    __________________
         FRANCIS E. SWEENEY, SR., J., concurring in part and dissenting in part.
         {¶ 14} I agree with the majority’s decision to remand the cause for a jury
trial on the spoliation claim under Smith v. Howard Johnson Co., Inc. (1993), 

67 Ohio St.3d 28

, 

615 N.E.2d 1037

. However, I disagree with the majority’s failure
to discuss appellee’s separate claim to punitive damages under Moskovitz v. Mt.
Sinai Med. Ctr. (1994), 

69 Ohio St.3d 638

, 

635 N.E.2d 331

. Thus, upon remand, I
would explicitly hold that the plaintiff is entitled to proceed on both the spoliation
and punitive damages claims.


1. The plaintiff pled punitive damages pursuant to Moskovitz v. Mt. Sinai Med. Ctr. (1994), 

69 Ohio St.3d 638

, 

635 N.E.2d 331

. However, due to the nature of the proceedings in the trial court, the
court of appeals limited its discussion to res judicata. In the interest of judicial economy, we note
that nothing in this opinion or the lower court decisions should be taken to suggest that Davis is
unable to pursue Moskovitz damages on remand.




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                             SUPREME COURT OF OHIO




        {¶ 15} In Smith v. Howard 

Johnson, supra,

 we held that a cause of action
exists in tort for interference with or destruction of evidence, and that such a claim
“may be brought at the same time as the primary action.” 

Id.,

67 Ohio St.3d at 29

,

615 N.E.2d at 1038

. I agree with the majority’s finding that our use of the word
“may” certainly does not imply that such a claim must be brought at the same time
as the primary action. To the contrary, a claim for damages under Smith may—and
in the majority of cases most likely will—be brought after entry of the judgment in
the primary action.
        {¶ 16} However, to recover compensatory damages in a spoliation claim,
appellee must prove that her underlying case was disrupted, and that the disruption
proximately caused damages. 

Id. at 29

, 

615 N.E.2d at 1038

. In this case, appellee
may ultimately succeed in proving that her case was disrupted and that the
disruption proximately caused damages. Yet, such success is not a prerequisite to
her recovery of punitive damages under Moskovitz.
        {¶ 17} Unlike a claim for compensatory damages under Smith, a claim for
punitive damages under Moskovitz does not require proof of damages proximately
caused by the act or acts of spoliation. 

Id.,

69 Ohio St.3d at 649-652

, 

635 N.E.2d at 341-344

. However, in order to obtain punitive damages for spoliation under
Moskovitz, there must be some compensatory award in the underlying litigation,
and the spoliation must be “inextricably intertwined” with the underlying action.

Id. at 651

, 

635 N.E.2d at 342

. Such damages may be awarded provided that the
spoliation was undertaken to avoid liability for the underlying tort. 

Id. at 651

, 

635 N.E.2d at 342-343

. In Moskovitz, the underlying tort was medical negligence; here,
it was an employer intentional tort. Thus, as in Moskovitz, the award to appellee on
the underlying tort forms the necessary predicate for an award of punitive damages
based upon the alleged spoliation of evidence tending to establish an employer
intentional tort.




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                                  January Term, 2001




          {¶ 18} Appellee faced an uphill battle in proving her intentional tort claim
because, she alleges, Wal-Mart employees presented false and misleading
testimony during discovery depositions and at trial. She claims that important
documents (“Exhibit A” and weekly accident reports) were not produced, and that
this conduct continued during the litigation of the spoliation and punitive damages
claims.     Appellee contends that it was only after Wal-Mart employees were
confronted with their lies and misleading answers that they were forced to admit to
them.
          {¶ 19} The purpose of punitive damages is not to compensate a plaintiff but
to punish the guilty, deter future misconduct, and to demonstrate society’s
disapproval. Moskovitz, 

69 Ohio St.3d at 651

, 

635 N.E.2d at 343

; Calmes v.
Goodyear Tire & Rubber Co. (1991), 

61 Ohio St.3d 470, 473

, 

575 N.E.2d 416, 419

;
Preston v. Murty (1987), 

32 Ohio St.3d 334

, 

512 N.E.2d 1174

. Zoppo v. Homestead
Ins. Co. (1994), 

71 Ohio St.3d 552, 557

, 

644 N.E.2d 397

, 401, establishes that the
assessment of punitive damage is for the jury to decide.
          {¶ 20} In Calmes, supra, 

61 Ohio St.3d at 473

, 

575 N.E.2d at 419

, we found
that punitive damages are available upon a finding of actual malice. “Actual
malice” was defined in 

Preston, supra,

32 Ohio St.3d 334

, 

512 N.E.2d 1174

,
syllabus, as “(1) that state of mind under which a person’s conduct is characterized
by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights
and safety of other persons that has a great probability of causing substantial harm.”
(Emphasis added.) Based upon this definition, the record in this case supports a
request for punitive damages.
          {¶ 21} Accordingly, I would direct the trial court to instruct the jury that if
it finds that Wal-Mart concealed or destroyed evidence in order to minimize or
avoid liability for Thomas Davis’s death, the jury may award punitive damages,
whether or not the concealment or destruction of evidence proximately caused
damages to appellee.




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                                   SUPREME COURT OF OHIO




         {¶ 22} In order for our legal system to work, pursuant to our rules of
procedure, a litigant must have the ability to investigate and uncover evidence after
filing suit. The intentional concealment or destruction of evidence not only violates
the spirit of liberal discovery but also reveals a shocking disregard for orderly
judicial procedures and traditional notions of fair play. Damage is caused not only
to the parties to the suit, but also to the judicial system and the public’s confidence
in that system. Wal-Mart harms the sanctity of the judicial system and makes a
mockery of its search for the truth.
         {¶ 23} For these reasons, I concur in part and dissent in part.
         DOUGLAS and RESNICK, JJ., concur in the foregoing opinion.
                                     __________________
         COOK, J., dissenting.
         {¶ 24} In Smith v. Howard Johnson Co., Inc. (1993), 

67 Ohio St.3d 28, 29

,

615 N.E.2d 1037, 1038

, this court adopted the spoliation tort (placing this court
among the minority of jurisdictions to have done so2) in a single conclusory
paragraph—ten lines of text summarily responding to three certified questions from
a federal district court. Today’s majority opinion, equally bereft of substantive
legal analysis, overrules appellant’s propositions of law with citation only to Smith,
Grava v. Parkman Twp. (1995), 

73 Ohio St.3d 379

, 

653 N.E.2d 226

, and the court
of appeals’ opinion. Because I believe that the trial court correctly applied the
doctrine of res judicata to preclude Davis’s second tort action against Wal-Mart, I
respectfully dissent.


2. For discussions of the tort’s precarious status nationwide, see Cedars-Sinai Med. Ctr. v. Superior
Court of Los Angeles Cty. (1998), 

18 Cal.4th 1, 11

, 

74 Cal.Rptr.2d 248, 254

, 

954 P.2d 511, 517

(California Supreme Court deciding not to recognize the tort, given the “strong policy favoring use
of nontort remedies rather than derivative tort causes of action to punish and correct litigation
misconduct”), and Goff v. Harold Ives Trucking Co., Inc. (2000), 

342 Ark. 143, 146, 151

, 

27 S.W.3d 387, 388, 391

 (Supreme Court of Arkansas finding it “unnecessary and unwise” to join those “few
jurisdictions” that recognize an independent spoliation tort). See, also, Smith v. Atkinson (Ala.2000),

771 So.2d 429, 439-441

 (See, J., dissenting).




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                                January Term, 2001




                                          I
       {¶ 25} Even if I were to agree with the majority’s syllabus that “[c]laims
for spoliation * * * may be brought after the primary action has been concluded
only when evidence of spoliation is not discovered until after the conclusion of the
primary action,” the majority fails to explain exactly which evidence of spoliation
presented here was not discovered until after Davis’s primary action concluded.
Nor does the majority explain exactly when a “primary action” “concludes” for
purposes of its syllabus and/or res judicata. These are significant issues, because
the allegations in Davis’s instant complaint focus on (1) “Exhibit A,” which Davis
admittedly discovered before her first intentional tort case went to trial, and (2) a
Sam’s Club claims file, which Davis admittedly obtained in conjunction with her
motion for prejudgment interest in the intentional tort case. Because the majority
opinion never actually applies the syllabus to the specific evidence alleged to have
been spoliated in this case, the spoliation tort will remain as unexplained to the
bench and bar as it was after its cursory recognition in Smith.
                                         II
       {¶ 26} I also write separately to emphasize a significant procedural issue
discussed by the court of appeals yet absent from today’s majority opinion. As the
appellate court observed, the trial court has yet to determine whether Davis has
actually presented a prima facie case for spoliation of evidence. Davis v. Wal-Mart
Stores, Inc. (May 8, 2000), Cuyahoga App. No. 75224, unreported, at 6, 

2000 WL 504114

, at *2, fn. 1. In its motion for summary judgment, in addition to arguing
that Davis’s instant claim was barred by res judicata, Wal-Mart contended that
Davis had presented no evidence of (1) a willful destruction of evidence, (2) a
disruption of her case, or (3) damages proximately caused by defendants’ actions.




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                                   SUPREME COURT OF OHIO




All of these are essential elements of the tort according to this court’s express
language in Smith, 

67 Ohio St.3d at 29

, 

615 N.E.2d at 1038

.3
         {¶ 27} One of Smith’s essential elements, “willful destruction,” differs
significantly from “concealment,” “interference,” or “misrepresentation”—at least
as these terms are commonly understood. See Webster’s Third New International
Dictionary (1986) 615 (destruction), 469 (concealment), 1178 (interference), 1445
(misrepresentation). Yet, despite this court’s express insistence in Smith that a
spoliation plaintiff prove “willful destruction,” both the court of appeals and the
majority apply interchangeably all of these distinct concepts. For example, the
court of appeals stated that “[f]or res judicata to apply * * *, defendants’ acts of
allegedly concealing, destroying or intentionally interfering with evidence must
arise from the same ‘transaction or occurrence’ as that which [led] to decedent’s
death.” (Emphasis added.) Davis at *4. And in addition to adopting this language
from the appellate opinion, the majority states that “[t]here is something wrong with
a legal doctrine that could be used in a situation like the one before us to reward a
party for misrepresenting or destroying evidence.” (Emphasis added.) We were
not asked in this appeal to broaden the existing elements of the tort recognized in
Smith, and the majority should not imply that evidence of concealment,




3. The federal district court in Smith queried whether Ohio recognizes a tort of “spoliation of
evidence and/or tortious interference with prospective civil litigation.” Smith, 

67 Ohio St.3d at 29

,

615 N.E.2d at 1038

. The Smith court did not apply the district court’s term “spoliation” in its order
answering this question, although the term has apparently been reborn in today’s syllabus. Rather,
the Smith court decided that “[a] cause of action exists in tort for interference with or destruction of
evidence.” (Emphasis added.) 

Id.

 The label of the tort recognized in Smith suggests that a party
may be found civilly liable for “interference with” evidence. See 

id.

 Yet with its enumeration of
the essential elements of this tort, Smith expressly requires plaintiffs to prove “willful destruction.”

Id.

 As the case before us demonstrates, a party’s alleged “interference” with evidence does not
always equate to “destruction” of evidence. Indeed, Davis attaches to her complaint one of the very
documents that she alleges Wal-Mart failed to produce in the prior intentional tort action. If the
evidence had been “willfully destroyed,” as Smith requires, Davis would presumably have been
unable to attach it to her complaint. Other allegations in Davis’s complaint are based on a claims
file—also not destroyed—that Davis obtained during the prejudgment interest proceedings.




                                                  10
                                    January Term, 2001




interference, and/or misrepresentation may satisfy the “willful destruction” element
of the tort.4
        {¶ 28} Given its disposition in favor of Wal-Mart on the basis of res
judicata, the trial court never addressed Wal-Mart’s argument that Davis failed to
make a prima facie case, nor did it address Wal-Mart’s separate contention that no
civil liability exists for statements made by a witness during trial. As the court of
appeals instructed, the trial court should address Wal-Mart’s remaining arguments
on remand. Davis at fn. 1. When it does so, the trial court need not interpret the
majority’s dicta as a holding by this court that Smith’s necessary element of “willful
destruction” may be satisfied by proof of “concealment,” “misrepresentation,” or
“interference.”
                                  __________________
        Greene & Eisen Co., L.P.A., William M. Greene, Brian N. Eisen and Eric
M. Schreibman, for appellee.
        Jones, Day, Reavis & Pogue, Jeffrey S. Sutton and Brian G. Selden;
Reminger & Reminger Co., L.P.A., Clifford C. Masch and Roy A. Hulme, for
appellant.
                                  __________________




4. Wal-Mart has specifically asked us to “reconsider the continued recognition of the spoliation
tort,” yet the majority has failed to respond to any of these arguments.




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