Florida Litigation Guide

Negligent Destruction of Evidence -

[1] Elements and Case Citations

(1) Plaintiff has a potential civil action;

(2) Defendant has a legal or contractual duty to preserve evidence that is relevant to the potential action;

(3) The evidence is destroyed;

(4) The destruction of the evidence significantly impairs Plaintiff’s ability to prove her case;

(5) A causal relationship between the evidence destruction and Plaintiff’s inability to prove her case; and

(6) Damages.

There is no cause of action against a first-party defendant for negligent destruction of evidence. Martino v. Wal-Mart Stores, Inc., 908 so. 2d 342, 347 (Fla. 2005).

A Plaintiff need not prove that she would have succeeded in her potential civil action but for the destruction of evidence, but only that the destruction of evidence precluded her from attempting to prove her case. Miller v. Allstate Ins. Co., 573 So. 2d 24, 31 n.12 (Fla. 3d DCA 1990), rev. denied, 581 So. 2d 1307 (Fla. 1991).

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Florida State Courts

Third District: Continental Ins. Co. v. Herman, 576 So. 2d 313, 315 (Fla. 3d DCA 1990), rev. denied, 598 So. 2d 76 (Fla. 1991)

Fourth District: Gayer v. Fine Line Const. & Elec., Inc., 970 So. 2d 424, 426 (Fla. 4^th DCA 2007)

Florida Federal Courts

Southern District: Epstein v. Toys-R-Us Delaware, Inc., 277 F.Supp.2d 1266 (S.D. Fla. 2003)

Middle District: Tindall v. Gibbons, 156 F. Supp. 2d 1292, 1297 (M.D. Fla. 2001)

References

Restatement (Second) of Torts ง 281 et seq. (1965) (General Negligence Principles)

[2] Defenses to Claim for Negligent Destruction of Evidence

(1) Fla. R. Civ. P. 1.110(d) (pleading affirmative defenses), and other standard defenses. See ง 60.

(2) Statute of Limitations: ง 95.11(3)(a), Fla. Stat. (four years).

(3) Sovereign immunity shields a government from a claim for negligent destruction of evidence except where a government representative undertakes specific action at the Plaintiff’s request. Brown v. City of Delray Beach, 652 So. 2d 1150, 1154 (Fla. 4th DCA 1995).

(4) Plaintiff’s contributory negligence serves to diminish the recovery of damages through principles of comparative negligence by apportioning defendant’s degree of negligence against that of the plaintiff. Hoffman v. Jones, 280 So. 2d 431, 437-440 (Fla. 1973).

(5) Plaintiff’s injuries were a result of an intervening, superseding cause. See, e.g., Townsend v. West Side Dodge Inc., 642 So. 2d 49, 50 (Fla. 1st DCA 1994), rev. denied, 651 So. 2d 1197 (Fla. 1995); see also Restatement (Second) of Torts งง 440, 441 (1965).

(5) Execution of a valid release is an absolute bar to liability. See, e.g., Bruce v. Heiman, 392 So. 2d 1026, 1027-1028 (Fla. 5th DCA 1981).

(6) Consent is a defense to negligence claims. See Restatement (Second) of Torts ง 892 (1965).

(7) Government is immune from liability for negligent destruction of evidence absent the creation of special duty to a particular citizen to maintain the evidence. Brown v. City of Delray Beach, 652 So. 2d 1150, 1153 (Fla. 4th DCA 1995).