Opinion
CV106001430S.
12-06-2012
Denise DURYEA v. Raymond FIGUEROA.
UNPUBLISHED OPINION
JACK W. FISCHER, Judge.
FACTS
This case involves a negligence claim arising out of a slip and fall accident that occurred on the premises of a rental property owned and controlled by the defendant, Raymond Figueroa. In the complaint, the plaintiff, Denise Duryea, alleges that while ascending the stair case to visit a friend who resided on the second floor of the rental property, the front edge of a wooden step gave way causing her to fall and suffer personal injury. Specifically, the plaintiff alleges that the defendant was negligent in his maintenance of the stairs and knew, or should have known of the dangerous and defective condition created by the stairs and could have and should have taken steps to warn tenants, visitors and guests. As a result of the fall, the plaintiff alleges to have suffered personal injury and seeks monetary damages.
On October 18, 2010, the defendant filed an answer to the complaint along with a special defense. On March 22, 2012, the defendant filed a request to leave and amend his answer and special defense, adding a second special defense sounding in spoliation of evidence. The plaintiff filed an objection to the request on April 5, 2012. To the defendant's objection to this request to amend, the defendant filed a reply and argued therein, that " [t]he plaintiff's challenge should properly be raised on Motion to Strike, not by objection to request for leave to amend." The court overruled the objection on April 17, 2012. On August 30, 2012, the plaintiff filed a motion to strike the defendant's second special defense on the ground that it is insufficient as a matter of law. The motion is accompanied by a memorandum of law. The defendant filed a memorandum of law in opposition to the motion to strike on September 13, 2012. This matter was heard on short calendar on September 24, 2012.
In her objection, the plaintiff made the same arguments against the addition of the second special defense as she does in this motion to strike.
DISCUSSION
Practice Book § 10-39(a) provides in relevant part: " Whenever any party wishes to contest ... the legal sufficiency of any answer to any complaint ... (5) or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." " In ... ruling on the ... motion to strike, the trial court recognized its obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). " The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense ... the motion to strike must fail." Mingachos v. CBS, Inc., 196 Conn. 91, 108-09, 491 A.2d 368 (1985).
Procedurally, the defendant objects to the motion to strike on the ground that the matter was previously ruled upon by the court in an earlier proceeding and the court's ruling ought to be considered the law of the case, and the plaintiff ordered to respond to the special defense.
" The law of the case ... expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power ... Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided." Lewis v. Gaming Policy Board, 224 Conn. 693, 697, 620 A.2d 780 (1993). " Nonetheless ... the law of the case doctrine is not one of unbending rigor ... [a] judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he himself made the original decision." (Internal quotation marks omitted.) Miller v. Kirshner, 225 Conn. 185, 191-92, 621 A.2d 1326 (1993).
The defendant argues that Judge Markle addressed this issue when she overruled the plaintiff's objection to the defendant's request to leave and amend his answer and special defense, allowing the addition of the second special defense sounding in intentional spoliation of evidence. This court disagrees. In his " Reply to Plaintiff's Objection to Motion For Leave to Amend Special Defense" the defendant argued to Judge Markle that this issue should be raised in a motion to strike. Under those circumstances, it cannot be said that the court decided this particular issue, especially since the court's ruling was limited to a single word " overruled." Therefore, this court does not consider the ruling to be the law of the case on this issue and the defendant's argument on this ground is rejected.
Substantively, the plaintiff argues that spoliation of evidence is not properly pleaded as a special defense. Specifically, she argues that spoliation of evidence may give rise to a jury instruction and to an adverse inference, but it cannot establish that the plaintiff has no cause of action which is the purpose of a special defense. In response, the defendant argues that spoliation is properly pleaded as a special defense in the present case because the plaintiff cannot establish a cause of action without the spoiled evidence.
Our case law recognizes two types of spoliation: intentional bad faith spoliation and intentional innocent spoliation. See Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 238 n. 7, 905 A.2d 1165 (2006). Intentional bad faith spoliation is a cause of action occurring after a separate and previous failed attempt at litigating an underlying cause of action. Id., at 238-39. Consequently, in the present case, the defendant's special defense sounds in intentional innocent spoliation.
Intentional innocent spoliation was first recognized in Beers v.. Bayliner Marine Corp., 236 Conn. 769, 675 A.2d 829 (1996). There, our Supreme Court held that a party may not be put out of court or effectively defaulted on the issue of liability for spoliation of evidence. Id., at 775. Rather, " an adverse inference may be drawn against a party who has destroyed evidence only if the trier of fact is satisfied that the party who seeks the adverse inference has proven the following. First, the spoliation must have been intentional ... Second, the destroyed evidence must be relevant to the issue or matter for which the party seeks the inference ... Third, the party who seeks the inference must have acted with due diligence with respect to the spoliated evidence ... Finally, the jury, if it is the trier of fact, must be instructed that it is not required to draw the inference that the destroyed evidence be unfavorable but that it may do so upon being satisfied that the above conditions have been met." (Citations omitted.) Id., at 777-79.
" If, as a result of the innocent destruction of evidence, whether intentionally or inadvertently, the plaintiff as a matter of law could not sustain their burden of proving liability, then summary judgment may be appropriate." (Footnote omitted.) Beers v. Bayliner Marine Corp., supra, 236 Conn. at 780. " However, spoliation of evidence is not a claim that the plaintiff has no cause of action. For this reason it is not properly pleaded as a special defense." Barnum v. Ford Motor Co., Superior Court, judicial district of Fairfield, Docket No. 325240 (January 10, 1997, Levin, J.) (18 Conn. L. Rtpr. 425, 426); Patterson v. Berrios, Superior Court, judicial district of Hartford, Docket No. CV 11 6017657 (June 1, 2012, Woods, J.) [ 54 Conn. L. Rptr. 131] (" Hypothetically, should allegedly destroyed evidence prevent a [party] from establishing a prima facie case, then the proper remedy would be for the [other party] to file a motion for summary judgment; not a special defense").
In the present case, in his second special defense, the defendant asserts that the plaintiff is barred from recovery in whole or in part because she spoliated key evidence. Specifically, the defendant asserts the plaintiff took and lost a piece of wood which allegedly caused her to fall and as a result, the plaintiff has prejudiced the defendant by preventing him from inspecting and testing evidence that was potentially exculpatory. As noted, a special defense must be consistent with the allegations of the complaint, but nonetheless, demonstrate that the plaintiff still has no cause of action. Here, the defendant's claim of spoliation, even if successful, cannot by itself demonstrate that the plaintiff has no cause of action. Consequently, the defendant's second special defense is insufficient as a matter of law and the Motion to Strike is granted.