When the Injured Are Out of Luck

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Castalia Ortega was driving down Ocean Parkway in Brooklyn one autumn night when she smelled gas fumes coming from her minivan. With her boyfriend in the passenger’s seat and three children in the back, she pulled the Ford Aerostar over to the side of the road when flames started shooting out from the hood and into her seat.

Injured worse than her passengers, Ortega, 54, was rushed to the hospital that night. A number of things may have caused the fire, but Ortega was never able to find out exactly what went awry. She was never able to file a lawsuit against the motor company. Not without the key evidence – the vehicle itself.

That’s because while paramedics were taking her to the emergency room, a city towing company drove the remains of the van to a private lot. It was held there for a month before being transferred to the NYPD’s College Point auto pound. Not long afterward, two orders from the state Supreme Court to preserve the evidence were ignored. On Dec. 30, 2003, the NYPD crushed the auto’s remains and sold it for scrap.

Ortega sued the city for negligent destruction of evidence. This October – almost exactly four years after the initial auto fire – she lost her last appeal. It is the final word in a series of decisions in which New York courts have refused to recognize a remedy for evidence destroyed in what is called “third-party spoliation,” in effect issuing a warning to would-be plaintiffs.

Indeed, in a recent outline on Ortega’s case and related issues, Long Island attorney Michael Glass wrote: “The Court of Appeals laid to rest any lingering question whether New York permits an independent tort claim for third-party spoliation of evidence. It does not. … Litigants must take early and affirmative steps to identify critical items of evidence … [and] if possible, secure the evidence in the hands of a party, who can then be subject to spoliation sanctions.”

Suing a party that has intervened in a dispute to handle evidence has been recognized as a cause of action in California, New Jersey and Illinois: When one party is hampered in bringing action against a second party because the evidence is missing, the plaintiff sues a third party that was responsible for preserving that evidence. But in New York, someone in Castalia Ortega’s shoes would be encouraged to sue Ford without key evidence in hand.

Or to sue the NYPD for contempt of court. That’s the path city Law Department attorney Scott Shorr, who litigated the case on behalf of the city, says would have been correct. Ortega should have gone back to the state Supreme Court, which issued the preservation orders, to sue for contempt, rather than bring a controversial separate tort back to a court with a history of rejecting third-party spoliation claims.

“We don’t know what would have happened if the plaintiff pursued a contempt sanction,” said Shorr. “You prove to the court that it was violated. In New York, it’s possible a get a compensatory remedy in violation of a court order.”

The last major third-party spoliation lawsuit to come before the New York Court of Appeals was Metlife v. Joe Basil Chevrolet, a 2004 case involving a Chevy Tahoe that caught fire in the garage of the car owner’s house, causing more than $330,000 in property damages. MetLife, the owner’s insurance company, did not sue automaker Chevrolet, but rather Chevy’s insurance company for failing to preserve the vehicle.

In its decision against MetLife, the Court of Appeals wrote, “Although MetLife verbally requested the preservation of the vehicle, it never placed that request in writing or volunteered to cover the costs associated with preservation.”

Thus the two court orders obtained in Ortega v. City of New York distinguish the case from MetLife, argues Ortega’s attorney Barbara Olk. Around the country, Olk says, “there have not been decisions where a court order was violated. Here, there was a clear duty. There was a court order requiring preservation of evidence. A court order was obtained. The entity holding the property was aware of it.”

Lawrence J. Regan, the Buffalo attorney who brought the claim of third-party spoliation in the MetLife case, agrees. “If there’s a court order in place that’s been violated and they destroyed the minivan, it seems to me that the court erred once again,” Regan said. “When they destroy the property, they make it impossible to prove a cause of action.”

As with recent revelations about misplaced DNA evidence at NYPD storage facilities leading to the wrongful imprisonment of two New Yorkers, the Ortega decision raises high-stakes questions about the city’s duty to preserve evidence. “Evidence preservation, destruction and the like – this is a national problem,” says Rebecca Brown, a policy analyst at the Innocence Project, whose efforts led the NYPD to locate the evidence that freed two men in 2006 after serving long sentences for rape. (See City Limits Weekly #557, Freed Men Offer Their Cases As Proof Of Evidence Failure.) “What New York lacks is a uniform evidence preservation law.”

The DNA cases motivated Assemblyman Joseph Lentol, a Brooklyn Democrat, to introduce a bill on the preservation of such evidence. Although not enacted, interest from the state Senate and Gov. Spitzer lead Lentol to expect more legislative action on the issue this year. Lentol is focused on criminal evidence, but in a case like Ortega’s he says the city may have an interest to “preserve evidence just in case there is possible criminal conduct that could be alleged.”

Otherwise citizens might “prevail upon the legislature to create a right of action for somebody whose property is destroyed by the police department in what seems to be a negligent manner,” he said.

For now, some find the implications of the Ortega appeal frustrating. “People lose respect for the rule of law. If you have a court order in place to preserve something” and it’s not followed, “who’s going to respect a court order?” asks attorney Regan. “Parties can destroy evidence with impunity at this point, with the blessing of the Court of Appeals, which I find outrageous, frankly.”

But the case is not an indication of a widespread problem in the city, says city attorney Shorr. “I hope you realize the city is not in the habit of ignoring preservation orders,” he said. “Third-party negligence does not seem to be the kind of thing that happens so often, it cries out for tort remedy. Bureaucracy may break down, papers can be misplaced, and when that happens it’s unfortunate.”

– Jared Irmas