In DEAN v. CITY OF KENOVA ET AL., Civil Action No. 3:21-0197 (S.D. WV, April 19, 2022), before the Court was Defendant Bob Sullivan’s Motion to Dismiss Plaintiff’s action for spoliation.
Plaintiff was the administrator of Mr. James Dean’s estate following his death. Mr. Dean was arrested on April 5, 2019, by the Kenova Police Department because of a disturbance at his residence. Plaintiff alleged that after his arrest, among others, Mr. Dean was knocked to the ground and struck multiple times in the head.
Plaintiff brought forth several claims including that Defendant Sullivan “intentionally maliciously, and fraudulently withheld and spoliated video evidence.”
In examining the sufficiency of Plaintiff’s allegations, the Court looked to Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), which requires a plaintiff to set forth the grounds for an “entitle[ment] to relief” that is more than mere “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” If the allegations in the complaint, assuming their truth, do “not raise a claim of entitlement to relief, this basic deficiency should . . . be exposed at the point of minimum expenditure of time and money by the parties and the court.”
The Court also cited Ashcroft v. Iqbal, 556 U.S. 662 (2009), where the Supreme Court explained that to survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
The Defendant raised two arguments as to why Plaintiff’s claims against him for spoliation and negligence should be dismissed.
First, Defendant asserted that the federal law of spoliation applied to this matter, and that because there was no federal independent cause of action for spoliation, Plaintiff had failed to state a claim. However, as recognized by the Court, intentional spoliation is a cognizable tort under West Virginia law. See Hannah v. Heeter, 584 S.E.2d 560 (W. Va. 2003); Williams v. Werner Enters., Inc., 770 S.E.2d 532, 538 (W. Va. 2015).
Intentional spoliation of evidence is defined as “intentional destruction, mutilation, or significant alteration of potential evidence of the purpose of defeating another person’s recovery in a civil action.” Seven elements must be met to prove the claim: “(1) A pending/potential civil action; (2) Knowledge of the spoliator of the pending/potential civil action; (3) Willful destruction of evidence; (4) That the spoliated evidence was vital to a party’s ability to prevail in the pending/potential civil action; (5) The intent of the spoliator to defeat a party’s ability to prevail in the pending/potential civil action; (6) The party’s inability to prevail in the action; and (7) Damages.”
When a plaintiff establishes the first five elements, a rebuttable presumption then arises that “but for the spoliation of evidence, the party injured by the spoliation would have prevailed in the pending or potential litigation.” A defendant must then overcome the rebuttable presumption.
Here, Plaintiff’s Amended Complaint alleged that Defendant Sullivan intentionally, maliciously, and fraudulently withheld and spoliated video evidence. Plaintiff asserted that she submitted a FOIA request regarding the incident that was the subject of the Amended Complaint, and that Defendant Sullivan responded that there was no recoverable video surveillance or body camera video of the incident.
However, Plaintiff’s counsel was informed that such video existed and was on Defendant Sullivan’s phone. Plaintiff alleged that Defendant was aware of a potential lawsuit, that he had a duty to preserve the evidence, and that such evidence was vital to Plaintiff’s case. The video was not produced, despite representations that it would be made available.
Plaintiff further alleged that Defendant Sullivan acted fraudulently by his response to the FOIA request that stated no video existed, despite his knowledge that the video existed on his phone. Assuming such allegations to be true, the Court held that Plaintiff alleged sufficient circumstantial facts that could create a reasonable inference that the video evidence was spoliated.
Defendant Sullivan also asserted that he was entitled to sovereign immunity and thus the Amended Complaint against him should be dismissed. However, Plaintiff’s claim against Defendant Sullivan was for intentional spoliation, thus immunity for his intentional conduct is governed by W. Va. Code § 29-12A-5(b)(2), which holds “that an employee of a political subdivision is immune from liability unless his acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner.” W. Va. Code § 29-12A-5(b)(2).
Given that Plaintiff’s complaint alleged that Defendant Sullivan maliciously and fraudulently spoliated video evidence, Defendant’s alleged conduct made him ineligible for immunity.