Wilkins v. City of Conyers. , 347 Ga. App. 469 ( 2018 )

FIFTH DIVISION
MCFADDEN, P. J.,
RAY and RICKMAN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
October 2, 2018
In the Court of Appeals of Georgia
A18A1400. WILKINS v. CITY OF CONYERS.
RICKMAN, Judge.
In this wrongful death action filed against the City of Conyers (“the City”),
Steve Wilkins appeals from the trial court’s order dismissing his lawsuit as a sanction
for the spoilation of evidence pertinent to his claims. Because we conclude that the
trial court abused its discretion in dismissing the complaint, we reverse and remand
this case to the trial court for proceedings consistent with this opinion.
The relevant facts are as follows. On May 26, 2015, Wilkins’s pregnant wife
and his unborn child were tragically killed when his wife hydroplaned while driving
his truck and struck another vehicle. There was a substantial amount of water on the
roadway at the time of the accident, extending from the middle of the roadway to the
top of–and in some places, spilling over–the six-inch curb. The storm drain servicing
that section of the roadway was clogged and it is undisputed that, although
maintenance of the drain and the roadway immediately surrounding it was the
responsibility of the City, the City believed the drain to be on county property and,
consequently, failed to maintain it.1 Wilkins alleges that the City’s negligent failure
to maintain the drain and surrounding roadway resulted in a dangerous condition,
namely the pooled water, which caused the death of his wife and unborn child.
By certified letter dated May 29, 2015, Wilkins was notified that his truck had
been towed to Chancey’s Wrecker Service, Inc., and that Wilkins would be charged
a towing fee, in addition to accruing a $20 per day storage fee and administration
charges for notifications sent regarding the vehicle. The notice was sent to the address
listed on Wilkins’s driver’s license–his mother’s home–although he no longer lived
there. It was signed for and received by Wilkins’s mother on June 3, 2015, and
Wilkins admitted that he received and read the letter.
Wilkins retained counsel who, on June 8, 2015, called Chancey’s to confirm
its possession of the truck and to inform Chancey’s that he was representing Wilkins
and would be sending a letter requesting that the vehicle be preserved. The same day,
1
The border between property belonging to the City and that belonging to the
adjoining county was approximately 100 feet from storm drain at issue.
2
counsel sent a letter to Chancey’s specifically directing Chancey’s to “hold and retain
[Wilkins’s truck] and not modify or release any and all of [the truck], including all
parts, tires, pictures, records, reports, incident reports, accident reports, and any other
materials, including the actual vehicle[ ].” The letter was sent via facsimile and
certified mail, was addressed to the manager in accordance with Chancey’s express
instructions, specifically stated that Chancey’s failure to preserve the vehicle may
result in severe sanctions, and directed Chancey’s to contact counsel with any
questions.
During the first week of July 2015, counsel again telephoned Chancey’s and
confirmed that it had received the letter and was preserving Wilkins’s vehicle. At no
time did Chancey’s notify counsel of a demand for payment or indicate that
compliance with counsel’s preservation request was dependant upon payment of any
kind. Nevertheless, the same week, Chancey’s sent a certified letter to Wilkins
demanding payment of $14502 and notifying him that the “vehicle and its contents
will be deemed abandoned after thirty (30) days, and will be sold at public sale for all
2
The demand for payment included a towing fee of $150.00, a storage fee to
date of $840.00, “administrative fees” totaling $300.00, and a $200.00 auction fee.
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charges due.” Chancey’s did not copy counsel on the letter, which was received at the
home of Wilkins’s mother on July 9, 2015 and signed for by his aunt.
During the first week of August, Wilkins’s counsel–who remained unaware of
the letter demanding payment–contacted Chancey’s to confirm that the vehicle was
still being preserved and was told it had been destroyed. It was less than 30 days from
the date Chancey’s letter was received and signed for by Wilkins’s aunt.3
The City thereafter moved to strike Wilkins’s complaint for spoilation of
evidence as a sanction for Wilkins’s “inexplicable decision . . . to allow the truck his
wife was driving to be destroyed.” Wilkins filed a sworn affidavit explaining that he
was not regularly checking his mail at his mother’s house, asserting his understanding
that all communications related to the vehicle and/or the lawsuit would be directed
to his attorney, and maintaining that he was unaware of Chancey’s intent to dispose
of the vehicle.
The parties also filed competing expert affidavits. The City presented the
opinion of a professionally certified accident reconstructionist who examined the
accident scene and reviewed the evidence collected at the time of the crash, which
3
It was not clear from the letter whether the 30-day abandonment deadline
began to run from the date of mailing or the date of receipt.
4
included pictures of Wilkins’s truck and its tires, as well as inspected the second
vehicle involved in the accident and analyzed that vehicle’s data recorder. He opined
that without Wilkins’s truck, he was unable to determine other potential causes for
the crash, such as a mechanical or brake failure of the vehicle causing loss of control
and/or loss of tire traction due to low tread. He further stated that although he was
able to estimate the approximate speed that Wilkins’s wife was driving at the time of
the accident, he was unable to determine whether she had braked before the accident
in order to establish whether she had been traveling at a higher rate of speed.
Wilkins in turn filed a counter-affidavit, also from a professionally certified
accident reconstructionist, who reviewed the same evidence and the City expert’s
report. He opined that given the reported depth of the water, the primary cause of
Wilkins’s wife’s loss of control of the vehicle was excessive water on the roadway.
He further stated that even if Wilkins’s truck had not been destroyed, it would not
have provided any additional reliable evidence regarding the cause of the accident
because it did not have a data recorder; a brake or mechanical failure would have had
little bearing on Wilkins’s wife’s ability to control the car since during a hydroplane
event, there is very little friction between the vehicle and the road surface; and due
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to the lack of friction, a hydroplane event can occur regardless of the speed of the
driver.4
Following a hearing, the trial court granted the City’s motion to strike the
complaint upon concluding that Wilkins had a duty to preserve the truck and “failed
to respond to either of [Chancey’s] letters, make arrangements for his vehicle to be
stored, or otherwise preserve the vehicle.” The trial court summarily held that the City
was “severely prejudiced” by the destruction of the truck, and that the striking of
Wilkins’s complaint was the appropriate sanction because, “[w]hile ignorance of a
duty is perhaps not as blatant as the intentional destruction of evidence, it is not the
moral equivalent of ‘good faith’ and supports a finding that [Wilkins] acted in bad
faith.” This appeal follows.
“The term ‘spoliation’ is used to refer to the destruction or failure to preserve
evidence that is relevant to contemplated or pending litigation.” (Citation and
punctuation omitted.) Phillips v. Harmon, 297 Ga. 386, 393-394 (II) (774 SE2d 596)
4
The City moved to exclude Wilkins’s expert testimony as to his opinion
regarding the cause of and/or contributing factors to the accident on the basis that
other than taking photographs and walking the scene, the expert himself had “not
conduct[ed] any other type of meaningful investigation or scientific methodology to
determine potential alternate causes or confirm his hypothesis.” The trial court never
ruled on this motion.
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(2015). Included within the trial court’s inherent power to control the behavior of
litigants and to maintain the integrity of the judicial process is the discretion to
fashion appropriate sanctions for the spoliation of evidence. See Bouve & Mohr v.
Banks, 274 Ga. App. 758, 762 (1) (618 SE2d 650) (2005); R. A. Siegel Co. v. Bowen,
246 Ga. App. 177, 179 (2) (539 SE2d 873) (2000); see generally OCGA § 15-1-3 (4).
When spoliation results from the acts of a third-party, it is sanctionable against
a litigant “if the third party acted as the litigant’s agent” in destroying or failing to
preserve the evidence. Bouve & Mohr, LLC, 274 Ga. App. at 762 (1); see also Phillips
v. Owners Insurance Company, 342 Ga. App. 202, 204, n.5 (802 SE2d 420) (2017);
Lustre-Diaz v. Etheridge, 309 Ga. App. 104, 106 (709 SE2d 309) (2011); Kitchens
v. Brusman, 303 Ga. App. 703, 708-709 (1) (b) (694 SE2d 667) (2010). Under
Georgia law, “[a]n agency relationship exists where one person, expressly or by
implication, authorizes another to act for him or subsequently ratifies the acts of
another in his behalf.” Bouve & Mohr, LLC, 274 Ga. App. at 762-763 (1); see OCGA
§ 10-6-1.
In the event that a trial court determines that a party and/or his or her agent
wrongfully destroyed evidence, the court “has wide latitude to fashion sanctions on
a case-by-case basis, considering what is appropriate and fair under the
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circumstances.” (Citation and punctuation omitted.) Kitchens, 303 Ga. App. at 709
(1) (b); see Phillips, 297 Ga. at 398 (II). In so doing, we have held that the trial court
should weigh the following five factors:
(1) whether the party seeking sanctions was prejudiced as a result of the
destroyed evidence; (2) whether the prejudice could be cured; (3) the
practical importance of the evidence; (4) whether the destroying party
acted in good or bad faith; and (5) the potential for abuse if any expert
testimony about the destroyed evidence was not excluded.
(Citation and punctuation omitted.) Phillips, 297 Ga. at 399, n.12 (B); see also AMLI
Residential Properties v. Georgia Power Co., 293 Ga. App. 358, 361 (1) (667 SE2d
150) (2008).
On occasion, the trial court may determine in its discretion that severe
sanctions, “such as an instruction to the jury to presume rebuttably that the evidence
was adverse to the spoliating party’s claim or defense, the entry of a default judgment,
or the dismissal of the case,” are appropriate. Cooper Tire & Rubber Company v.
Koch, 303 Ga. 336, 339 (2) (812 SE2d 256) (2018); see also OCGA § 24-14-22.
Significantly, however, those sanctions are reserved for “exceptional cases” – namely
“those in which the party lost or destroyed material evidence intentionally in bad faith
and thereby prejudiced the opposing party in an uncurable way,” (Citation and
8
punctuation omitted.) Cooper Tire, 303 Ga. at 343 (2) (d); see also Phillips, 297 Ga.
at 398-399 (II) (“The good or bad faith of the party is a relevant consideration
because one of the rationales for the [sanction] is that it deters parties from pretrial
spoliation of evidence and serves as a penalty, placing the risk of an erroneous
judgment on the party that wrongfully created the risk.”) (citation and punctuation
omitted). But see AMLI Residential Properties, 293 Ga. App. at 363-364 (1) (a)
(affirming trial court’s exclusion of expert testimony related to spoliated evidence
despite the judge’s conclusion that it was not done in bad faith per se because it was
knowingly done in violation of the understanding between the parties and was,
therefore, “wrongful”).
On the other hand, “[t]he loss of relevant evidence due to mere negligence . .
. normally should result in lesser sanctions, if any at all.” Cooper Tire, 303 Ga. at 343
(2) (d). Indeed, “[n]egligent or even grossly negligent behavior does not logically
support [the inference that the missing evidence was unfavorable to the party
responsible for its loss or destruction]” because “[i]nformation lost through
negligence may have been favorable to either party, including the party that lost it,
and inferring that it was unfavorable to that party may tip the balance at trial in ways
the lost information never would have.” Id. at 347, n.6 (3).
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Here, the trial court erred by attributing bad faith to Wilkins based upon
Chancey’s destruction of the evidence and abused its discretion by imposing the most
severe sanction of striking his complaint. See Kitchens, 303 Ga. App. at 709 (1) (c)
(reversing the trial court’s ruling on spoliation of evidence after finding an abuse of
discretion); see also Cooper Tire, 303 Ga. at 343 (2) (d) (emphasizing that the
harshest spoliation sanctions should be reserved for those involving bad faith and
resulting in uncurable prejudice). While we will not speculate as to Chancey’s
motives, there is no way to construe the evidence so as to conclude that Chancey’s
was acting as Wilkins’s agent when it disregarded his counsel’s repeated requests to
preserve the vehicle. See OCGA § 10-6-1; Boswell v. OHD Corp., 292 Ga. App. 234,
236 (664 SE2d 262) (2008). Counsel’s request to maintain the truck was made within
ten days of Wilkins receiving notice that it was in Chancey’s possession, and that
request was immediately followed by a fax and certified letter. Counsel called
Chancey’s on two additional occasions to verify the vehicle’s preservation–all of
which occurred within three months of the date of the accident. Yet despite these
repeated communications from counsel, Chancey’s failed to mention to him the
demand for payment and sent its first and only notice of the demand to Wilkins via
mail. Chancey’s then destroyed the vehicle less than 30 days from the date the letter
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was received and signed for by Wilkins’s aunt. At no time did Wilkins or his counsel,
expressly or by implication, authorize or ratify Chancey’s conduct in doing so. See
OCGA § 10-6-1.
At most, given his counsel’s communications to Chancey’s, Wilkins’s failure
to ensure his receipt of the demand for payment and/or to remit that payment was
negligent. See generally Cooper Tire, 303 Ga. at 343 (2) (d). Accordingly, we reverse
the trial court’s order striking the complaint and remand this case to the trial court to
fashion a remedy more appropriate to the circumstances of this case and consistent
with this opinion.
Judgment reversed and case remanded with direction. McFadden, P. J., and
Ray, J., concur.
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