Davis v. Wal-Mart Stores, Inc. ( 2001 )

Pfeifer, J.

On September 10, 1992, Thomas Davis was fatally injured, while operating a forklift, when the driver of the produce truck he was unloading pulled away from the loading dock prematurely. As a result of this incident, appellee Bernadine Davis, the wife of Thomas Davis, brought an action against appellant Wal-Mart Stores, Inc. (“Wal-Mart”) and a co-worker. Davis settled the claim with the co-worker and dismissed her survivor claim against Wal-Mart. Davis’s remaining claim for wrongful death against Wal-Mart, based upon an intentional tort, was tried to a jury.

The jury found for Davis and awarded damages. Thereafter, the trial court granted an award of prejudgment interest. The court of appeals affirmed, and we denied review. Davis v. Sam’s Club (1997), 77 Ohio St.3d 1526, 674 N.E.2d 377.

During the course of post-trial proceedings for prejudgment interest, Davis came to believe that Wal-Mart had withheld certain evidence and documents and that several employees of Wal-Mart had provided false or misleading testimony during their depositions in the intentional tort case. Davis returned to the trial court and filed a new action, alleging that Wal-Mart’s spoliation of evidence had led her to dismiss her survivor claim. Davis claimed that this dismissal prevents ed her from seeking additional compensatory and punitive damages. Wal-Mart moved for summary judgment on Davis’s claim of tortious interference with evidence, which was granted, based on res judicata.

The court of appeals reversed and remanded, stating that the present claim of tortious interference and the previous claim of intentional tort did not arise out of the same set of operative facts and, therefore, res judicata did not bar the claim for tortious interference. The cause is now before this court pursuant to the allowance of a discretionary appeal.

In its first proposition of law, Wal-Mart argues that the spoliation claim should be precluded because the spoliation was discovered or should have been discovered before the resolution of the original litigation. As primary authority for this proposition, Wal-Mart cites Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 653 N.E.2d 226. The syllabus of Grava states: “A valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action.” (Citations omitted.)

While discussing this legal standard, the court of appeals in the case at bar stated:

“For res judicata to apply under this theory, however, defendants’ acts of allegedly concealing, destroying or intentionally interfering with evidence must arise from the same ‘transaction or occurrence’ as that which [led] to decedent’s death in the intentional tort wrongful death action. * * *

“The ‘occurrence’ which triggered the intentional tort case was the decedent’s death. The term ‘transaction’ may be broader than ‘occurrence’ and was defined in Grava to encompass events which arise from a ‘common nucleus of operative facts.’ [Grava, 73 Ohio St.3d at 382, 653 N.E.2d at 229.] Concealing, destroying, misrepresenting, or intentionally interfering with evidence after a workplace death does not arise from a ‘common nucleus of operative facts’ with those which arose before the death.” Davis v. Wal-Mart Stores, Inc. (May 8, 2000), Cuyahoga App. No. 75224, unreported, 2000 WL 504114, at *4.

We could not agree more.

The court of appeals continued by stating:

“To recover on an intentional tort claim, the claimant must show that the employer disregarded a risk of injury or death to the employee that was substantially certain to occur. Nothing in the record shows that any other issue was raised or submitted to the jury in the intentional tort case.

“Defendants have likewise not shown that a motion for prejudgment interest alleging a failure to make a good faith effort to settle an intentional tort case precludes subsequently raising a spoliation of evidence claim. This is particularly true, as in the case at bar, when alleged acts of concealing, destroying, misrepresenting, and/or intentionally interfering with evidence were not discovered until after the final judgment in the intentional tort litigation.” Id.

Again we agree with the court of appeals completely.

This case was decided originally when the trial court granted summary judgment. “[S]ummary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party’s favor.” Civ.R. 56(C).

It is possible that reasonable minds could conclude that the basis for the second action, the alleged misrepresentations and withholding of evidence, occurred after and independent of the first action, based upon the truck’s pulling away from the loading dock prematurely and tragically. Therefore, it is not possible for reasonable minds to reach but one conclusion, one that is adverse to Davis, namely, that the spoliation claim and the intentional tort claim arose out of a common nucleus of operative facts. However, such a conclusion is essential to uphold the trial court’s grant of summary judgment based on res judicata. Accordingly, res judicata is inapplicable, and the grant of summary judgment was improper. We reject Wal-Mart’s first proposition of law.

We further note that res judicata is not a shield to protect the blameworthy. “ ‘The doctrine of res judicata is not a mere matter of practice or procedure inherited from a more technical time, but rather a rule of fundamental and substantial justice, or public policy and of private peace. The doctrine may be said to adhere in legal systems as a rule of justice. Hence, the position has been taken that the doctrine of res judicata is to be applied in particular situations as fairness and justice require, and that it is not to be applied so rigidly as to defeat the ends of justice or so as to work an injustice.’ ” Grava, 73 Ohio St.3d at 386, 653 N.E.2d at 232 (Douglas, J., dissenting), quoting 46 American Jurisprudence 2d (1994) 786-787, Judgments, Section 522. There is something wrong with a legal doctrine that could be used in a situation like the one before us to reward a party for misrepresenting or destroying evidence. Whether Wal-Mart actually committed those acts is for a jury to determine. Given the facts of this case, Wal-Mart will not be shielded by res judicata.

In its second proposition of law, Wal-Mart argues that “claims for spoliation of evidence should be brought at the same time as, or as an amendment to, the primary action.” We stated in Smith v. Howard Johnson Co., Inc. (1993), 67 Ohio St.3d 28, 29, 615 N.E.2d 1037, 1038, that spoliation claims “may be brought at the same time as the primary action.” “May” is permissive. Had we intended for all spoliation claims to be brought at the same time as the primary action we would have chosen “must” or “shall.” We did not. To clarify Smith, today we hold that claims for spoliation of evidence may be brought after the primary action has been concluded only when evidence of spoliation is not discovered until after the conclusion of the primary action. We reject Wal-Mart’s second proposition of law.¹

Judgment affirmed.

Moyer, C.J., and Douglas, J., concur. Lundberg Stratton, J., concurs except that she dissents from footnote 1. Douglas, Resnick and F.E. Sweeney, JJ., concur in part and dissent in part. Cook, J., dissents.

1 . The plaintiff pled punitive damages pursuant to Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 635 N.E.2d 331. However, due to the nature of the proceedings in the trial court, the court of appeals limited its discussion to res judicata. In the interest of judicial economy, we note that nothing in this opinion or the lower court decisions should be taken to suggest that Davis is unable to pursue Moskovitz damages on remand.