By: J. Norman Stark, ATTORNEY, ARCHITECT EMERITUS (OH) A.I.A., N.C.A.R.B.
Spoliation in construction-related claims for injury, deaths, defective materials or workmanship may actually preclude the use or introduction of admissible evidence as to fault or liability. On some occasions evidence may even have been intentionally hidden or destroyed during the construction process by encasement in concrete!
Evidence of construction defects, much like fog or smoke, tend to dissipate and vanish, with or without a trace. Once detected, uncovered, or recovered, such critical evidence may suffer a newer danger of spoliation. These acts may seriously affect the credibility and admissibility of evidence necessary to support litigated claims.
Spoliation is the material alteration or destruction of evidence so as to render it invalid to support its intended purpose. Patent defects in construction are easily discernible, while latent defects are those not easily viewed or are otherwise completely hidden from view. Evidence, originally patent, may become latent through unlawful acts of spoliation. This type of conduct has been detected in some legal actions, whereby intentional acts control, spoil, or prevent the reference, use, or production of critical evidence.
State and federal courts, have held that a cause of action exists in tort for acts of intentional spoliation against parties to the primary action as well as to third parties. The elements of proof may vary, depending upon the federal or state jurisdiction. However, the elements generally required include: (1) pending or probable litigation involving the plaintiff; (2) knowledge on the part of the defendant that litigation exists or is probable; (3) willful destruction of evidence by defendant designed to disrupt plaintiff’s case; (4) disruption of plaintiff’s case; and (5) damages proximately caused by the defendant’s acts.
Evidence spoliation in construction-related cases is not limited to factual destruction of construction materials, processes, or work. The destruction of essential documents and papers, raise serious issues of innocence or guilt, particularly whether it was committed as an intentional civil or criminal act. Experienced forensic expert evaluation may provide for recovery of critical evidence.
“WHERE EXPERIENCE COUNTS, COUNT ON MY EXPERIENCE”
J. NORMAN STARK, ATTORNEY*
ARCHITECT EMERITUS (Ohio) A.I.A., N.C.A.R.B.
1109 Carnegie Avenue Cleveland, Ohio 44115-2805
(216) 531-5310 x7100 Email: Jnorman@Jnormanstarklaw.com
*Author: The Construction Claims Investigation Worklist®