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Injuries at Sea: Destroying Evidence Before Injured Seaman’s Lawyer Can Inspect Equipment

Injuries at sea are often caused by equipment that fails under normal use. Lines snap. Crane parts fail. Deck boards break. Ordinarily, when those items of equipment are produced or inspected immediately following an injury, then the case can be relatively straightforward. But, when there is a passage of time, broken equipment is lost or thrown away. Memories fade – sometimes conveniently fade. There is no question that the lawyer’s job is much easier – and the case much stronger – when the lawyer can get to the scene of the injury soon after it happens and the broken equipment can be preserved.

What happens when the equipment is thrown away? What happens when the injury scene is purposefully altered? There is a rule of law regarding “spoliation” of evidence.

Spoliation of evidence is generally defined as either willfully or negligently destroying or loosing documents or objects that could be used during legal proceedings. Washington State defines spoliation as the “intentional destruction of evidence.” Inherent in this is the assumption that the party which destroyed the evidence, even if the destruction was negligent and not intentional, knew or should have known the evidence would be legally pertinent. A lack of evidence may also beg the question: Did the evidence exist in the first place?

Some states, such as Alaska, consider intentional spoliation to be a tort (liability in civil law for causing harm to another, as in personal injury), with remedies applied according to the nature of the spoliation. But most states, including Washington, do not consider spoliation of evidence to be a tort, which means that spoliation is in itself not an independent cause of action and thus is not punishable in itself. Instead, the doctrine of “adverse inference/rebuttable presumption” is applied, by which it’s inferred that the party which destroyed evidence believes they would have been harmed by its admission, and has thus benefited, or attempted to benefit, from that destruction. To restore balance, the court may shift the burden of proof to that party. The case may even be dismissed, if not lost on those grounds.

When a defendant destroys evidence, it’s presumed that the defendants knew that the evidence was unfavorable to them. But first, the spoliation must be shown to affect the case. If the evidence would have been relevant to the case, the defendant then must be shown to have been reasonably knowledgeable that the evidence would have been necessary for the case, and therefore be held culpable. To prove the spoliation was not negligent or willful, the defendant would have to show that the destruction of evidence occurred in the normal course of business, as with normally scheduled records purging, and that they did not destroy evidence out of self-preservation.

Spoliation may result from a plaintiff’s actions, as well. In Vodusek v. Bayliner Marine, Inc., 71 F.3d 148 (4th Cir. 1995), Mr. Vodusek died of burns he suffered in an explosion which occurred when he started the bilge pump soon after having refueled his boat. His plaintiff widow’s expert destroyed evidence during the expert’s inspection of the boat and fuel line. The fact that the expert filmed and photographed his work in a show of “good faith” as he conducted his inspection did not alter the court’s decision that, intentional or not, spoliation of evidence had indeed occurred; the information the expert collected could not be used by the plaintiff to prove her case because the evidence supporting the information had been destroyed, and likewise the defense was unable to access and use the same evidence to support their defense. In Vodusek, without useable evidence, the ultimate result was a verdict for the defense, which the appeals court affirmed. The bottom line is that destroyed evidence is evidence which exists for neither party.

Spoliation may also earn an attorney discovery sanctions. Karl B. Tegland, in Washington Practice: Civil Procedure sec. 21.33, writes: “In Henderson v. Tyrrell…. To minimize risk, cautious attorneys should continue to advise against the destruction of evidence without first obtaining a court order authorizing such destruction.” In other words, it would be wise to preserve anything that may reasonably comprise evidence, including log books, maintenance receipts, and any equipment involved in an accident, in an unaltered state, pending litigation. And certainly, neither party may withhold non-destroyed evidence of which they are knowledgeable.

A very interesting twist on spoliation of evidence is exemplified in Menges v. Cliffs Drilling Company, 2000 WL 765082 (E.D. La. 2000), wherein the employee/plaintiff, who had been complaining of post-accident back pain, had back surgery before an independent medical exam had been performed. The employer/defendant claimed that Mr. Menges had intentionally destroyed evidence by having this pre-IME surgery. The judge ruled that even though Mr. Menges had had a duty to have communicated with his employer about his pending surgery (breach of that duty is a separate matter), repairing the injured back did not constitute spoliation of evidence, especially considering his employer had full access to his medical records prior to the surgery.

Whenever there is injury at sea, especially an injury that involves equipment or physical evidence, it is the best practice to preserve that evidence. But, the passage of time is not a friend to the preservation of evidence. Things get lost. Equipment gets repaired, and broken equipment is tossed. Therefore, the best practice is to have a knowledgeable representative inspect the accident scene and equipment immediately after the injury. Lawyers are usually able to arrange an inspection of the scene while the evidence is fresh and undisturbed. But, sometimes, people delay in obtaining representation. While there may be some legal relief for the spoliation of evidence, courts are unpredictable in their rulings in this area. So, the best advice is not to let the injury scene go cold.

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