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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hibbits et al. v Sides (11/02/2001) sp-5493

Hibbits et al. v Sides (11/02/2001) sp-5493

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.


PURVIS,                       )    Supreme Court No. S-9630
             Appellants,      )    Superior Court No.
                              )    3AN-99-07195 CI
     v.                       )
DAN SIDES,                    )    O P I N I O N
             Appellee.        )    [No. 5493 - November 2, 2001]

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                    Peter A. Michalski, Judge.

          Appearances:  Phillip E. Benson, Law Offices
of Phillip E. Benson, Anchorage, for Appellants.  Venable Vermont,
Jr., Assistant Attorney General, Anchorage, Bruce M. Botelho,
Attorney General, Juneau, for Appellee.

          Before:   Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.  

          MATTHEWS, Justice.

          Does Alaska recognize intentional third-party spoliation
as a tort?  In light of our earlier decisions in Nichols v. State
Farm Fire and Casualty Co. [Fn. 1] and Hazen v. Municipality of
Anchorage, [Fn. 2] we conclude that it does.  Accordingly, we hold
that it was error to dismiss appellants' complaint, which alleged
intentional third-party spoliation, for failure to state a claim
upon which relief could be granted.
          Appellants Paul Hibbits and Dacari Purvis (collectively,
"Hibbits") were riding on motorcycles when they were involved in a
collision with a pickup truck driven by Michael Vogus.  State
Trooper Dan Sides was the first law enforcement officer to arrive
at the scene of the accident; he removed Vogus from the area for
approximately two hours.  Sides's reason for doing so is at the
center of this case. 
          According to Sides, he removed Vogus from the scene of
the accident in order to protect him from threats from "drunken 
Hell's Angels"at the scene of the accident.  In his complaint
Hibbits implicitly alleged that Sides knew that Vogus was under the
influence of marijuana at the time of the accident, and knew, too,
that Vogus would be civilly liable to Hibbits as a result.  Hibbits
also alleged that Sides intentionally kept Vogus away from the
accident scene long enough for Vogus's condition to improve, and
that as a result the lead investigating officer was not alerted to
the need to test Vogus's blood or urine for the presence of
marijuana metabolites.  Finally, Hibbits alleged that Sides acted
"with malice, bad motives, or reckless indifference"to Hibbits's
interests.  Drawing all reasonable inferences in favor of Hibbits,
[Fn. 3] we read his complaint to allege that Sides removed Vogus
from the scene of the accident in order to frustrate Hibbits's
ability to bring a civil suit against Vogus.  
          After the accident, Hibbits filed a civil suit against
Vogus.  Hibbits subsequently filed a separate suit against Sides,
alleging that Sides's actions amounted to intentional third-party
spoliation of evidence. [Fn. 4]  Arguing that Alaska would not
recognize intentional third-party spoliation as a tort, Sides moved
for an order dismissing Hibbits's complaint for failure to state a
claim upon which relief could be granted.  The order Sides had
requested was granted by Superior Court Judge Peter A. Michalski. 
          Hibbits appeals.
          This court reviews de novo an order dismissing a
complaint for failure to state a claim upon which relief may be
granted. [Fn. 5]
          When Judge Michalski dismissed Hibbits's complaint
pursuant to Civil Rule 12(b)(6), he did not have the benefit of our
decision in Nichols v. State Farm Fire and Casualty Co. [Fn. 6]  In
Nichols, we explicitly recognized intentional third-party
spoliation of evidence as a tort. [Fn. 7]  It was thus error to
dismiss Hibbits's complaint for failure to state a claim upon which
relief could be granted.
          Sides correctly argues that, in Nichols, our recognition
of intentional third-party spoliation as a tort came in dicta.  In
Nichols we ultimately concluded both that the evidence did not
support a claim of intentional spoliation, and that the defendant
was not a "third party not associated with the underlying lawsuit."
[Fn. 8]  Our recognition of the tort in Nichols, however, was based
upon our earlier decision in Hazen v. Municipality of Anchorage.
[Fn. 9]  And the Hazen decision, unlike Nichols, centered upon the
viability of an intentional spoliation claim. [Fn. 10]
          While acknowledging the centrality of the intentional
spoliation claim to Hazen, Sides nonetheless argues that in Hazen
we permitted only a first -- not a third -- party intentional
spoliation claim.  Sides notes that the alleged spoliator in Hazen
(the municipal prosecutor) was, although not a party to the
underlying civil suit himself, an agent of a party to that suit
(the municipality).  Spoliation by a party's agent, Sides contends,
is more properly characterized as a form of first-party spoliation
than as a form of third-party spoliation.  Although this argument
has merit, [Fn. 11] the municipality was not the only party to the
underlying lawsuit in Hazen.  We also permitted the plaintiff to
bring a claim against the individual police officers involved in
her arrest. [Fn. 12]  Sides does not argue that the prosecutor was
acting as the agent of the individual officers.  In relation to the
lawsuit against the officers, then, the prosecutor was a true third
party.  In permitting the plaintiff in Hazen to sue the prosecutor
for damaging her ability to pursue a civil claim against the
individual officers, we thus permitted an intentional third-party
spoliation claim.
          Despite our decision in Hazen, Sides argues that Alaska
should follow the lead of the California Supreme Court, which
recently declined to recognize intentional third-party spoliation
as a tort in Temple Community Hospital v. Superior Court. [Fn. 13] 
The California Supreme Court's four-three decision in Temple,
however, was premised in part upon the anomaly that would result
from imposing liability for intentional spoliation upon third
parties, [Fn. 14] when California had previously disallowed claims
for intentional first-party spoliation. [Fn. 15]  Unlike
California, Alaska has chosen to recognize intentional first-party
spoliation as a tort. [Fn. 16]  Our decision also to recognize
third-party spoliation thus creates no anomaly in the law.  Given
the limited availability of evidentiary sanctions in the third-
party context, moreover, there is reason to recognize intentional
third-party spoliation as a tort even if first-party spoliation is
not so recognized. [Fn. 17]  
          The decision of the Temple majority was also motivated in
part by a concern that the recognition of third-party spoliation as
a tort might cause "numerous [third parties] to undertake wasteful
and unnecessary record and evidence retention practices."[Fn. 18] 
Liability for intentional spoliation, however, is predicated upon
an intent to disrupt the underlying litigation. [Fn. 19] Third
parties will thus not be liable if "the missing evidence simply has
been discarded or misplaced in the ordinary course of events."[Fn.
20]  Like the Temple majority, we agree that non-parties who are
independently motivated to destroy evidence with the intent to
interfere in the outcome of someone else's litigation will be a
rarity. [Fn. 21]  Recognition of the tort should thus not impose an
intolerable burden upon the universe of possible defendants.   
          Like all plaintiffs alleging intentional third-party
spoliation, Hibbits must plead and prove that the defendant
intended to interfere in his civil suit.  In his opposition to the
motion to dismiss, Hibbits suggested that Sides's conduct amounted
to intentional spoliation simply because Sides acted intentionally
in removing Vogus from the scene of the accident.  To state a claim
for intentional third-party spoliation, however, it is not enough
to allege that Sides acted with some intent.  Sides will not be
liable for intentional third-party spoliation unless he acted with
the intent to harm Hibbits's ability to bring a civil suit against
Vogus. [Fn. 22]  Because such an intent can reasonably be inferred
from the factual allegations of Sides's complaint, Hibbits's
complaint should not be dismissed for failure to state a claim.
[Fn. 23]  But if Sides presents evidence that his intent in
removing Vogus from the scene of the accident was to protect Vogus
from threatening onlookers rather than to forestall Hibbits's
prospective civil suit, Hibbits will have to do more than merely
assert the contrary in his pleadings to avoid summary judgment.
[Fn. 24]  
          Sides briefly argues that even if Alaska recognizes
intentional third-party spoliation as a tort, his removal of Vogus
from the scene of the accident -- what he characterizes as his
"failure to collect evidence"-- cannot fairly be equated with the
destruction or alteration of evidence.  Had Hibbits alleged that
Sides negligently removed Vogus from the accident scene, Sides's
argument might well have had merit.  Hibbits's allegations,
however, support the inference that Sides intentionally removed
Vogus in order to hide the evidence of his marijuana use from the
chief investigating officer for Vogus's accident.  We see no
difference between the intentional destruction or alteration of
evidence and the intentional concealment of evidence that would
otherwise be discovered until it is destroyed by natural causes.
          As a final matter, Sides argues that Hibbits's complaint
should be dismissed as untimely.  According to Sides, it will be
impossible for Hibbits to show that he has been harmed by the
alleged spoliation until the conclusion of the underlying lawsuit
between Hibbits and Vogus.  We agree with Sides that the underlying
dispute should be resolved before the spoliation victim may proceed
to trial with an intentional third-party spoliation claim. [Fn. 25] 
Sides can forestall a trial on the spoliation claim through a
motion for a stay in the proceedings against him.  Dismissal of
Hibbits's complaint as untimely is thus unnecessary. [Fn. 26]
          Because we have previously recognized intentional third-
party spoliation as a tort, we REVERSE the dismissal of Hibbits's
complaint and REMAND for further proceedings consistent with this


Footnote 1:

     6 P.3d 300 (Alaska 2000).

Footnote 2:

     718 P.2d 456 (Alaska 1986).

Footnote 3:

     See Kollodge v. State, 757 P.2d 1024, 1026 (Alaska 1988).

Footnote 4:

     Parties to the underlying tort case who allegedly have
destroyed evidence are called "first-party spoliators." Non-
parties to the original action are "third-party spoliators." See
Nichols, 6 P.3d at 304.

Footnote 5:

     See Kollodge, 757 P.2d at 1026 n.4.

Footnote 6:

     6 P.3d 300 (Alaska 2000).

Footnote 7:

     See id. at 303-04 ("[I]ntentional spoliation claims can be
made against . . . non-parties to the original action (called
'third-party spoliators').").  

Footnote 8:

     See id. at 304-05.

Footnote 9:

     718 P.2d 456 (Alaska 1986).

Footnote 10:

     See id. at 464 (permitting common-law claim for intentional
spoliation of evidence).

Footnote 11:

     See Nichols, 6 P.3d at 304 (implying that spoliation of
evidence by party's agent creates claim for first-party, not third-
party, spoliation). 

Footnote 12:

     See Hazen, 718 P.2d at 464.

Footnote 13:

     976 P.2d 223 (Cal. 1999).

Footnote 14:

     See id. at 232-33. 

Footnote 15:

     See Cedars-Sinai Med. Ctr. v. Superior Court, 954 P.2d 511
(Cal. 1998).

Footnote 16:

     See Nichols, 6 P.3d at 303-04.

Footnote 17:

     See Oliver v. Stimson Lumber Co., 993 P.2d 11, 18 (Mont. 1999)
(recognizing third-party spoliation as tort, but holding it
unnecessary to recognize first-party spoliation as independent tort
given availability of evidentiary sanctions as alternative to tort

Footnote 18:

     Temple, 976 P.2d at 232.

Footnote 19:

     See id. at 237 (Kennard, J., dissenting) ("It should not be
sufficient that the spoliator merely intend[ed] to cause the act of
spoliation.  The spoliator must intend that the act of spoliation
affect the outcome of the underlying cause of action to which the
evidence is relevant; otherwise stated, the spoliator must intend
to harm the spoliation victim's ability to bring or defend against
a legal claim.").

Footnote 20:


Footnote 21:

     See id. at 232.

Footnote 22:

     See id. at 237-38 (Kennard, J., dissenting).

Footnote 23:

     See Kollodge v. State, 757 P.2d 1024, 1026 (Alaska 1988).

Footnote 24:

     See State, Dep't of Highways v. Green, 586 P.2d 595, 606 n.32
(Alaska 1978).

Footnote 25:

     Cf. Temple, 976 P.2d at 238 (Kennard, J., dissenting) ("[T]o
reduce uncertainty in the fact of harm the underlying action should
be resolved before the spoliation victim may proceed with an
intentional third-party spoliation claim.  More specifically, I
would require that the spoliation victim must have prosecuted the
underlying action to a conclusion on the merits or to a

Footnote 26:

     Barring plaintiffs from bringing intentional third-party
spoliation claims until the underlying civil litigation is resolved
could unduly extend the period of limitations on spoliation claims,
a result we find unwarranted.