Opinion
Case No. 96-1579
Opinion filed August 27, 1997. Rehearing Denied October 8, 1997.
An Appeal from the Circuit Court for Dade County, Juan Ramirez, Jr., Judge.
Haddad, Josephs, Jack, Gaebe Markarian and David M. Markarian, for appellant.
Caldwell Carroll; Deutsch Blumberg and James C. Blecke, for appellee.
Before SCHWARTZ, C.J., and SORONDO, J., and BARKDULL, Senior Judge.
The doctrine of spoliation arises when it is alleged that a crucial piece of evidence is unavailable at the time of trial due to action by one or the other of the parties. See, eg., Sponco Mfg. v. Alcover, 656 So.2d 629 (Fla. 3d DCA 1995), rev. dismissed, 679 So.2d 771 (Fla. 1996). In the instant case, the accelerator cable which allegedly malfunctioned was available at the time of trial, and there was testimony in reference to same. There being no spoliation in fact, it was error to give a jury instruction on spoliation, and therefore the final judgment on the verdict in favor of the defendant is reversed and returned to the trial court for a new trial.