As discussed in a previous issue of “Legal News” (July 2014), the doctrine of spoliation permits the imposition of sanctions and remedies where a litigant negligently or intentionally loses or destroys evidence that the litigant knows or reasonably should know might be relevant to a possible legal action, even when the spoliation occurs before an action is commenced. Massachusetts offers an aggrieved party a range of remedies for spoliation from dismissal or summary judgment to permitting an adverse inference against the responsible party at trial. However, because an adverse inference is still not affirmative proof, in some cases, the court must devise a skillful balance when the missing evidence is essential to a party’s case or defense.

In one such recent case, a fifteen-year-old gym member was injured when a piece of exercise equipment fell on his head. Upon inspection of the equipment, the gym’s co-owner noticed that a plastic coupling on the pulley/carriage system of the equipment was cracked and, pursuant to gym policy, the cracked part was replaced within twenty-four hours and discarded.  The injured party thereafter filed a lawsuit against the gym and owner alleging breach of their duty to maintain the equipment in a safe condition.

Following discovery, the defendant owner filed a Motion for Summary Judgment arguing that there was no evidence that it had breached its duty of care and the plaintiff could not prove his case. In response, the plaintiff moved to strike the defendant’s motion as a sanction for the spoliation of evidence. The trial court judge denied the plaintiff’s motion to strike, finding that no spoliation had occurred. The trial court judge further awarded summary judgment to the defendant, rejecting, as speculative, the plaintiff’s expert opinion evidence that a reason for the accident was that “the crack in the  plastic liner caused misalignment of the adjustable pulley/carriage” and that “a sufficient inspection” would have avoided the accident and plaintiff’s injury.

On appeal, the Appeals Court affirmed the trial judge’s determination on the issue of spoliation, but reversed the judgment.  The Appeals Court stated that although it may have come to a different conclusion on the issue of spoliation based on the evidence that the co-owner immediately requested replacement of the cracked part of “the machine that had just injured a minor who was taken away bleeding, in an ambulance, knowing it would be disposed of within twenty-four hours,” there was no error in the trial judge’s factual determination.

However, with regard to summary judgment, the Appeals Court found that the judge overlooked the principle that evidence must be viewed and inferences drawn in favor of the party opposing summary judgment, and that the judge impermissibly passed upon the credibility of the witnesses and the weight of the evidence to make his own decision of facts.  The Appeals Court concluded that the question of what the defendant did or did not do to inspect the machine, and whether that conduct was negligent, remained a question for the jury.  The Appeals Court left the question of the admissibility of evidence concerning the disposal of the cracked coupling for determination at trial.