Spoliation of Evidence: A Georgia Law Affecting Personal Injury Cases

On January 20, 2012, a Gwinnett County jury awarded a $2.3 million verdict
against Kroger in Gwinnett County.
See 1/26/12
Atlanta Journal-Constitution article. The case was important because it involved a legal issue called “spoliation.”

Mr. Craig Walters had slipped on crushed fruit near the deli, and suffered
a spinal cord injury. Mr. Walters was seriously injured, and he had to
have rods and screws placed in his back.

The case was tried by a good friend of mine, Lloyd Bell. Like me, Lloyd
is an Atlanta personal injury lawyer.

Mr. Walters’ case was not tried in the usual way. As it turned out,
the judge found that Kroger had had a video of the fall, which it had
destroyed. Based on the destruction of evidence, the judge determined
in advance of trial that Kroger was negligent, and sanctioned Kroger by
refusing to let it argue that the fall was Mr. Walters’ fault. The
only issue at trial was how badly Mr. Walters had been hurt.

A few years ago, I wrote an article for the Georgia Bar Journal, “Spoliation
of Evidence”, on the destruction of evidence, and I wanted to talk
about “spoliation” in my next few blog entries.

First, of course, you need to know what spoliation is. Spoliation “is
the destruction or the significant and meaningful alteration of evidence.”
Sharpnack v. Hoffinger Industries Inc., 231 Ga. App. 829, 499 S.E.2d 363 (1998).

I want to address up front the point that bugged me no end when I first
began to learn about spoliation. Shouldn’t it be
spoiliation? I was driven crazy by the fact that absolutely everyone was spelling
the word wrong! Didn’t anyone else notice that an “i”
was missing?! Even the courts didn’t seem to know how to spell the term!

As it turns out, the words “spoil” and “spoliation”
both come from the same Latin root word, but the spelling of the root
word is not what I thought it would be. The root of both words is the
Latin word spoliare, which means “to plunder.” While we have
added an “i” to the word “spoil”, the original
Latin word did not have an “i” between “the “o”
and the “l”.

In legal terminology, “[s]poliation’ is a word of evil connotations,
and the dictionaries make it synonymous with pillaging, plundering, and
robbing.” Wichita Royalty Co. v. City Nat. Bank of Wichita Falls,
109 F.2d 299 (5th Cir. 1940). In evidentiary terms, the idea is that one
party robbed the other party of victory by destroying the evidence that
would have helped the second party win the case.

For good reason, the law frowns on litigants who destroy – or “spoliate”
evidence. The law has provided, “omnia praesumuntur contra spoliatorem,”
or “all things are presumed against a despoiler or wrongdoer.”
Georgia case law has made the same presumption. “Spoliation of evidence
raises a presumption against the spoliator.”
Bennett v. Associated Food Stores, 118 Ga. App. 711, 716 (2), 165 S.E.2d 581 (1968);
Martin v. Reed, 409 S.E.2d 874, 200 Ga. App. 775 (1991).

When a party tilts the field, justice cannot be rendered. As an Atlanta
lawyer, regardless of the type of cases I handle, I understand and applaud
the law’s attempt to even the playing field.