Georgia Supreme Court Clarifies “Reasonably Foreseeable” Test for Duty to Preserve Evidence
In Cooper Tire & Rubber Co. v. Koch et al., No. S17G0624 (Ga. March 15, 2018), the Supreme Court of Georgia granted writ to determine whether the Court of Appeals properly interpreted the law regarding the duty to preserve evidence.
This case arose from an accident involving Plaintiff Renee Koch’s (“Koch”) husband, Gerald was driving when the tread on his left rear tire detached. His Ford Explorer crashed and flipped numerous times. He was unable to recover from his extensive injuries and died in June of 2012. The Ford Explorer was towed from the accident scene and placed in a storage yard. The vehicle was a total loss, but the Plaintiff Koch, asked the wrecker service to save the tire. The remains of the offending tire were kept and the rest of the vehicle and companion tires were crushed for scrap.
Plaintiff hired an attorney, and that attorney retrieved the tire from the wrecker Service in September of 2012. In March 2014, Plaintiff filed a product liability complaint for damages against Cooper Tire & Rubber Co. (“Cooper”) and other defendants. According to the complaint, the tire, made by Cooper, suffered a catastrophic tread separation, leading to the wreck which took the life of Mr. Koch. The complaint included counts against Cooper for negligent design and manufacture, strict liability, and failure to warn. Cooper filed an answer which noted that the company reserved the right to plead spoliation of critical evidence because Plaintiff failed to preserve the entire vehicle.
In June 2015, Cooper filed a motion to dismiss the complaint or impose other sanctions for spoliation. The lower Court did not find that the facts and circumstances gave rise to litigation being reasonably foreseeable to trigger the duty to preserve the entire subject vehicle.
The Supreme Court made it clear that reasonable foreseeability is the touchstone for determining whether a plaintiff was contemplating litigation, and that test has traditionally been described with objective and subjective components — what a reasonable person in the same circumstances as those in which the injured party has found himself would do. Thus, in applying the “reasonably foreseeable” test, it may be appropriate for trial courts to consider similar factors to determine whether an injured party in that position reasonably should have foreseen litigation at the time the relevant evidence was destroyed.
The Court of Appeals noted that the trial Court discerned no error in considering Plaintiff’s testimony about what her husband intended when he asked her to save one or more tires and why she decided to transfer the vehicle to the wrecker service in determining whether Plaintiff was actually contemplating litigation or whether litigation was reasonably foreseeable to someone in Plaintiff’s position at the time. Because the trial Court applied the correct legal theory, the question then is whether it abused its discretion in denying the spoliation motion. Because of the importance of evidence preservation in civil litigation, this Court granted Cooper Tire’s petition for certiorari. But the Court of Appeals’ analysis of the issues was essentially correct, so the Supreme Court affirmed its judgment, affirming that no spoliation had occurred under the “reasonably foreseeable” test.