Superior Boiler Works, Inc. v. Kimball

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 103,367

SUPERIOR BOILER WORKS, INC.,
Appellant,

v.

F. ROBERT KIMBALL, MARK STUERMAN, and
FERRIS KIMBALL COMPANY, LLC,
Appellees.


SYLLABUS BY THE COURT

1.
The tort of spoliation of evidence is not recognized in Kansas absent an
independent tort, contract, agreement, voluntary assumption of duty, or special
relationship of the parties.

2.
A party does not voluntarily assume a duty unless one agrees to provide the
service or acts affirmatively.

3.
One does not have a duty to preserve records simply because one is in the chain of
distribution of a product or in the stream of commerce related to a product.

4.
An independent tort of spoliation will not be recognized in Kansas for claims by a
defendant against codefendants or potential codefendants, including potential indemnitors
under a theory of comparative implied indemnification.
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Appeal from Johnson District Court; J. CHARLES DROEGE, judge. Opinion filed August 12, 2011.
Affirmed.

Vincent F. Reilly, of Reilly, Janiczek & McDevitt, P.C., of Merchantville, New Jersey, argued the
cause, and Lewis C. Miltenberger, of the Miltenberger Law Firm, PLLC, of Southlake, Texas, and
Thomas E. Rice, Jr., of Baker Sterchi Cowden & Rice, L.L.C., of Overland Park, were with him on the
brief for appellant Superior Boiler Works, Inc.

Dennis L. Horner, of Horner & Duckers, Chartered, of Kansas City, Kansas, argued the cause,
and Keith C. Sevedge, of Lenexa, was with him on the brief for appellee F. Robert Kimball.

Eric D. Barton, of Wagstaff & Cartmell, LLP, of Kansas City, Missouri, argued the cause, and
Tyler Hudson and Adam S. Davis, of the same firm, were with him on the brief for appellees Mark
Stuerman and Ferris Kimball Company, LLC.

The opinion of the court was delivered by

LUCKERT, J.: In Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, 734 P.2d
1177 (1987), this court concluded that "absent some independent tort, contract,
agreement, voluntary assumption of duty, or special relationship of the parties, the new
tort of 'the intentional interference with a prospective civil action by spoliation of
evidence' should not be recognized in Kansas." Koplin, 241 Kan. at 215. In reaching this
holding, this court reserved the question of whether Kansas would recognize the tort if a
defendant or potential defendant in an underlying case destroyed evidence to their own
advantage. Koplin, 241 Kan. at 215.

In this appeal, Superior Boiler Works, Inc. (Superior), argues a special relationship
existed between it and F. Robert Kimball, Mark Stuerman, and Ferris Kimball Company,
LLC (FK Company) (collectively Defendants), that required the Defendants to preserve
evidence. Alternatively, Superior argues the facts of this case require us to address the
question the Koplin court reserved and further argues we should answer the reserved
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question by recognizing the tort and applying it to give Superior the right to recover from
the Defendants. The district court rejected these arguments and granted the Defendants
summary judgment, finding there was not a contract, agreement, voluntary assumption of
duty, or special relationship requiring the Defendants to preserve evidence and the
reserved question did not apply to spoliation claims between those who are potential
codefendants in the underlying action. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Superior brought suit against the Defendants on two counts, labeling Count I as
"Intentional Interference with Actual and Prospective Actions by Destruction of
Evidence" and Count II as "Negligent Interference with Actual and Prospective Actions
by Destruction of Evidence." Eventually, all parties filed motions for summary judgment.
The district court denied Superior's motion and granted those of each defendant.

In one of those summary judgment decisions, specifically the order granting
summary judgment to Kimball, the district court recited the following uncontroverted
facts that explain the relationship of all of the parties and provide the context of
Superior's allegations:

"Defendant Kimball was affiliated with Ferris Kimball Company [FK Company]
through 1999. Specifically, Kimball was a partner with his father in the [FK] Company.
In 1984, Kimball became the owner of the sole proprietorship doing business as [FK]
Company. Kimball sold [FK] Company to Mark Stuerman in 1999. [There were various
business forms of FK Company that we will generically refer to as FK Company,
accepting, without analysis, Superior's argument that successor liability principles apply.]
"Throughout March and April 2002, [Superior] contacted [FK Company] seeking
information regarding asbestos content in materials supplied to [Superior] for use in its
boilers. On March 21, 2002, [Superior] asked [FK Company] and/or Mark Stuerman for
information concerning Plibrico Products and asbestos material [Superior] had purchased.
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In March 2002, [FK Company] sent an inquiry to Plibrico seeking information to answer
[Superior's] inquiry. [FK Company], via defendant Mark K. Stuerman, then transmitted
correspondence to [Superior], answering its inquiry. The correspondence specified the
names of all products sold and provided that one product may or may not have contained
some asbestos. In April 2002, [Superior] submitted another inquiry to [FK Company]
asking for poundage figures on sales of products, from [FK Company] to [Superior],
between 1967 and 1983. In response, [FK Company] and/or Mark Stuerman transmitted a
letter to [Superior] with attachments detailing sales, from [FK Company] to [Superior],
between 1967 to 1983. [In doing so, Stuerman referenced company index cards, which
contained the names of customers, dates of orders, and materials ordered.] The
attachments categorized sales by year and product and provided specific weights
purchased by invoice, year and product. [Superior] made no further requests for
information or documents, from [FK Company], until 2007."

Five years elapsed before there was further contact between Superior and any of
the Defendants regarding the records. The district court found the following
uncontroverted facts relating to what transpired when contact was renewed:

"In 2007, counsel for [Superior] contacted Robert Kimball and told Kimball that
[Superior] was involved in asbestos related litigation; that Kimball's company had
supplied products which were used in [Superior's] boilers; and thus, [Superior] was
interested in 'looking at whatever materials Kimball had' regarding products supplied by
[FK Company] to [Superior]. In March 2007, counsel for [Superior] forwarded
correspondence to counsel for Stuerman and [FK Company] 'stating that [Superior]
intended to subpoena any and all documents related to the sale of refractory products
from [FK Company] to [Superior],' including 'all documents reviewed or referred to in
preparation of the 2002 correspondence as well as all documents which concerned the
sale of products from [FK Company] to [Superior].' Kimball did not expressly agree to
preserve or maintain the index cards."

After receiving this letter, the Defendants destroyed FK Company's old company
records dating back to the 1930's, including those that had been used to compile the
information provided in 2002. Of these destroyed records, the primary evidence sought
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by Superior consisted of index cards, which detailed product sales from 1967 through
1983, and so-called "gold sheets," which recorded information regarding orders. Before
destroying any records, Stuerman sought the advice of counsel. He then contacted Cintas
Corporation, a shredding service, and on March 1, 2007, Cintas picked up three pallets of
records and destroyed them, off site, the next day. The index cards were not included in
the materials handed over to Cintas. Kimball gained possession of the index cards and
destroyed them himself in early March 2007.

It was uncontroverted that at the time the Defendants "purged the records, neither
Robert Kimball, Ferris Kimball Co., nor any of its other past or present employees had
been served, subpoenaed or otherwise joined in any asbestos litigation." On March 29,
2007, Superior subpoenaed documents relating to evidence of sales by FK Company to
Superior. By that time, the company records had been destroyed by the Defendants.

Although there were factual disputes regarding the extent of the Defendants'
knowledge about pending litigation or the threat of pending litigation, the district court
adopted the view most favorable to Superior and assumed that the Defendants had
knowledge of pending asbestos litigation against Superior and knew that FK Company
(in its various business forms), Kimball, and Stuerman could be joined as parties in
pending or future asbestos litigation. Even assuming those facts in the light most
favorable to Superior, the district court concluded that "neither the parties' past,
commercial relationship, nor defendants' knowledge of [Superior's] pending litigation
created a duty to preserve the index cards." Because there was "no agreement, contract,
statute, voluntary assumption of duty, or other special circumstance creating a duty to
preserve records," the Defendants "were entitled to destroy them."

Superior now appeals. Our jurisdiction arises from K.S.A. 20-3018(c) (a transfer
from the Court of Appeals on this court's own motion).

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ANALYSIS

Superior argues that the district court erred in finding the Defendants did not have
a duty to preserve the old company records and in granting summary judgment to the
Defendants on that basis. According to Superior, the Defendants had a duty to preserve
evidence that they knew or should have known was important to Superior's defense in
pending asbestos litigation.

Superior asks this court for a narrow holding, as is emphasized by two limitations
it has placed on its argument. One limitation arises because Superior focuses only on
intentional spoliation in its appellate brief and, therefore, has waived any issue
concerning its negligent spoliation claim. See Kingsley v. Kansas Dept. of Revenue, 288
Kan. 390, 395, 204 P.3d 562 (2009) (issue not briefed by a party is deemed waived or
abandoned). The second limitation arises from the statement in Superior's appellate brief
that it "is not seeking the recognition of a general tort of spoliation in Kansas, but rather
submits that a cause of action should be recognized for the very particular fact scenario
which exists in this case and which was left to 'another day'" in Koplin. See Koplin, 241
Kan. at 213. With that focus in mind, we must determine if the district court erred in
granting summary judgment in favor of the Defendants.

Standard of Review

This court's standard of review on appeal from summary judgment is a familiar
one:

"Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law. The trial court is required to resolve all facts and inferences which may
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reasonably be drawn from the evidence in favor of the party against whom the ruling is
sought. When opposing a motion for summary judgment, an adverse party must come
forward with evidence to establish a dispute as to a material fact. In order to preclude
summary judgment, the facts subject to the dispute must be material to the conclusive
issues in the case." Miller v. Westport Ins. Corp., 288 Kan. 27, Syl. ¶ 1, 200 P.3d 419
(2009).

On appeal from summary judgment, an appellate court applies the same rules as
the district court, and where the appellate court finds reasonable minds could differ as to
the conclusions drawn from the evidence, it must find that the grant of summary
judgment was in error. Miller, 288 Kan. at 32. When material facts are uncontroverted, an
appellate court reviews summary judgment de novo. Central Natural Resources v. Davis
Operating Co., 288 Kan. 234, 240, 201 P.3d 680 (2009); Troutman v. Curtis, 286 Kan.
452, Syl. ¶ 1, 185 P.3d 930 (2008).

In this appeal, the facts related to the parties' motions for summary judgment are
largely uncontroverted; the only topic of dispute relates to whether the Defendants knew
they were likely to become parties in asbestos litigation. Like the district court, we must
view the facts in the light most favorable to Superior, and consequently we assume the
Defendants knew they could become a party in some litigation.

Given this assumed knowledge, we are presented with the questions of (1)
whether, under the uncontroverted facts, the Defendants had a duty to preserve the
evidence—i.e., the index cards and gold sheets—under any of the circumstances
recognized in Koplin, 241 Kan. 206, Syl. ¶ 2, or, if not, (2) whether we will recognize an
independent tort of intentional spoliation when the claim is brought by a defendant
against a codefendant or potential codefendant in an underlying lawsuit.

These questions are ones of law and are subject to de novo review. Connelly v.
Kansas Highway Patrol, 271 Kan. 944, 968, 26 P.3d 1246 (2001), cert denied 534 U.S.
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1081 (2002) (on appeal from summary judgment, question of whether Kansas would
recognize a tort was a question of law subject to plenary appellate review); McGee v.
Chalfant, 248 Kan. 434, 437, 806 P.2d 980 (1991) (existence of a legal duty is a question
of law to be determined by the court); see Koplin, 241 Kan. at 207 (under K.S.A. 60-3201
et seq., certified questions may present only questions of law, meaning certified question
of whether Kansas would recognize intentional spoliation under the facts was an issue of
law).

Koplin v. Rosel Well Perforators, Inc.

As noted, Koplin, 241 Kan. 206, frames the issue of law that is presented in this
appeal. In Koplin, a federal court certified facts and issues of law for this court's
consideration. According to the federal court's factual statement, Koplin had suffered an
on-the-job accident when a T-clamp malfunctioned. His employer, Rosel Well
Perforators, Inc., destroyed the T-clamp immediately after the accident. Koplin recovered
workers compensation benefits and then filed a products liability suit against several
defendants. In the products liability suit, Koplin also made a claim against his employer
for intentional interference with a prospective civil action by spoliation of evidence.

Analyzing the question of whether Kansas would recognize the spoliation cause of
action, the Koplin court noted the tort was relatively new but had been recognized by
other jurisdictions. Koplin, 241 Kan. at 208; see Edwards v. Louisville Ladder Co., 796 F.
Supp. 966, 968 (W.D. La. 1992) ("Despite the fact that the origins of a tort for spoliation
of evidence trace back to at least 1973 no general consensus has developed as to the
basis, essential elements, or even existence of such a tort."). In reflecting on the case law
from other jurisdictions, the Koplin court discussed two distinctions that classified the
cases.

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The first classification arose from the traditional tort distinction between negligent
and intentional actions. At the time Koplin was decided, most cases addressing the
spoliation tort had dealt with the negligent destruction of evidence. As in this case, the
Koplin court had not been asked to recognize the tort of negligent spoliation.
Consequently, the Koplin court concluded the rationale of those decisions was not
"persuasive because they are based upon negligence as opposed to an intentional
interference with a third-party action." Koplin, 241 Kan. at 210.

Turning its attention to intentional spoliation, the Koplin court, 241 Kan. at 210-
12, noted there were only two jurisdictions recognizing the tort when the allegation was
that the evidence had been intentionally destroyed: Smith v. Superior Court, 151 Cal.
App. 3d 491, 198 Cal. Rptr. 829 (1984), disapproved by Cedars-Sinai Medical Center v.
Superior Court, 18 Cal. 4th 1, 74 Cal. Rptr. 2d 248, 954 P.2d 511 (1998), and Hazen v.
Municipality of Anchorage, 718 P.2d 456 (Alaska 1986). Superior relies on Smith and
Hazen.

In the California case of Smith, 151 Cal. App. 3d 491, the plaintiff was injured
when the rear wheel and tire flew off a van and crashed into the plaintiff's windshield.
Immediately after the accident, the van was towed to the dealer that had customized the
van. A few days after the accident, the dealer agreed with Smith's counsel to preserve the
physical evidence, consisting of certain automotive parts including customized wheels,
for later use in a possible action against the dealer or others. The evidence was
subsequently lost or destroyed, making it impossible for Smith to pursue her claim. She
then sued the dealer, alleging a cause of action for "'Tortious Interference with [a]
Prospective Civil Action By Spoliation of Evidence.'" Smith, 151 Cal. App. 3d at 495.

The Smith court considered various arguments, pro and con, and ultimately
concluded that a tort of spoliation was analogous to the tort of intentional interference
with a prospective business advantage. That tort, the court stated, allows recovery for
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interference with a business relationship where the expectations of the parties are the
subject of an unenforceable contract. To prove that claim, all a plaintiff was required to
allege was a "reasonable probability" that a contract or profit would have resulted but for
the defendant's acts. The California Court of Appeals in Smith found that a prospective
civil action in a product liability case is also a "probable expectancy" to be protected from
interference. Smith, 151 Cal. App. 3d at 502. (Fourteen years after the decision in Smith
and 11 years after Koplin, the decision in Smith was limited to its facts—namely, where
the spoliator was alleged to have agreed to preserve the evidence—and the general tort of
intentional first-party spoliation was disapproved by the California Supreme Court in
Cedars-Sinai Medical Center, 18 Cal. 4th at 14 n.3, 18 n.4; see also Temple Community
Hospital v. Superior Court, 20 Cal. 4th 464, 466, 84 Cal. Rptr. 2d 852, 976 P.2d 223
[1999] [disapproving of tort of intentional third-party spoliation].)

In the Alaska case of Hazen, 718 P.2d 456, the plaintiff, Penny Hazen, brought an
action for intentional spoliation of evidence that she alleged would exonerate her from
criminal prostitution charges. During the criminal case, Hazen learned the prosecution
was relying on a conversation between Hazen and an undercover police officer who had
recorded the conversation. The recording became inaudible, however, and Hazen, who
alleged the recording would have documented her telling the officer that sex was not
available at her massage parlor, claimed the arresting officers, the city, and the city
attorney destroyed the recording to protect themselves from false arrest and malicious
prosecution claims. The Alaska Supreme Court found Smith, 151 Cal. App. 3d 491,
persuasive and held that Hazen had a cause of action for intentional interference with a
prospective civil action by spoliation of evidence. The Hazen court stated that Hazen's
false arrest and malicious prosecution actions were valuable probable expectancies that
were destroyed or diminished by the destruction of the recording. Hazen, 718 P.2d at
463-64.

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The Koplin court distinguished Smith, 151 Cal. App. 3d 491, and Hazen, 718 P.2d
456, because those cases involved claims "wherein the defendants or potential defendants
in the underlying case destroyed the evidence to their own advantage." (Emphasis
added.) Koplin, 241 Kan. at 213. In doing so, the Koplin court recognized the second
distinction made in the case law, which classifies spoliation committed by a party to a
principal or underlying lawsuit as first-party spoliation and spoliation committed by a
nonparty to the principal or underlying lawsuit as third-party spoliation. See Lips v.
Scottsdale Healthcare Corp., 224 Ariz. 266, 267, 229 P.3d 1008 (2010); Howard
Regional Health System v. Gordon, 925 N.E.2d 453, 463 n.7 (Ind. App.), transfer granted
940 N.E.2d 823 (2010). The question of whether the court would recognize first-party
spoliation—i.e., spoliation by a defendant or potential defendant—was one the Koplin
court concluded was not before the court because it was Koplin's employer who had
destroyed the T-clamp and the employer was not a party or potential party in the products
liability suit. In other words, the question the Koplin court left "for another day" was
whether it would recognize a tort of intentional first-party spoliation. See Koplin, 241
Kan. at 213.

Addressing the question presented by the facts, the Koplin court noted the
employer had destroyed its own property at a time when Koplin "had no claims against
his employer except pursuant to the workers' compensation laws. There are no special
circumstances or relationships which created any duty for appellee to preserve the T-
clamp." Koplin, 241 Kan. at 213. This conclusion rested on a point the court emphasized
throughout the opinion: "It is fundamental that before there can be any recovery in tort
there must be a violation of a duty owed by one party to the person seeking recovery."
Koplin, 241 Kan. at 212. The court noted that there was no common-law duty to preserve
evidence and the employer

"had an absolute right to preserve or destroy its own property as it saw fit. To adopt such
a tort and place a duty upon an employer to preserve all possible physical evidence that
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might somehow be utilized in a third-party action by an injured employee would place an
intolerable burden upon every employer." Koplin, 241 Kan. at 212.

The court then analogized Koplin's claim to Kansas case law rejecting a civil
cause of action for perjury or conspiracy to commit perjury, citing Hokanson v. Lichtor, 5
Kan. App. 2d 802, 804-05, 626 P.2d 214 (1981). The Koplin court noted that the same
analogy had been drawn by the dissenting judge in Bondu v. Gurvich, 473 So. 2d 1307
(Fla. Dist. App. 1984), disapproved by Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342
(Fla. 2005), in which the Florida Court of Appeals allowed a spoliation claim.
Specifically, the Koplin court quoted the dissenting judge in Bondu, Chief Judge
Schwartz, who concluded that if an independent action is recognized for improper
conduct by a party or witness, such as destroying evidence or committing perjury, "'every
case would be subject to constant retrials in the guise of independent actions.' 473 So. 2d
at 1313-14." Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, 214, 734 P.2d 1177
(1987). Agreeing with that point, the Koplin court concluded the "doctrine recognized in
Hokanson [that no civil cause of action for damages should be recognized for perjury or
conspiracy to commit perjury by a witness or party] is sound and applies to a destruction
of evidence as well as perjured testimony." Koplin, 241 Kan. at 215. (Subsequent to the
Koplin decision, the Florida Supreme Court in Martino, 908 So. 2d 342, disapproved the
Florida Court of Appeals' decision in Bondu, 437 So. 2d 1307, and this court reaffirmed
the rationale of Koplin and Hokanson in OMI Holdings, Inc. v. Howell, 260 Kan. 305,
306, 315-18, 918 P.2d 1274 [1996], where we held Kansas does not recognize the
independent tort of "embracery," which means "'to influence a jury corruptly.' [Citation
omitted.]")

The Koplin court then listed five reasons it was rejecting the tort of intentional
spoliation of evidence, including:

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(1) "the generation of endless litigation (as recognized by Chief Judge
Schwartz in Bondu)";
(2) "inconsistency with the intent of the workers' compensation laws";
(3) "rank speculation as to whether the plaintiff could have ever recovered in
the underlying action and, if so, the speculative nature of the damages";
(4) "the limitless scope of the new duty which would be created"; and
(5) "the unwarranted intrusion on the property rights of a person who lawfully
disposes of his own property." Koplin, 241 Kan. at 215.

Subsequent to the decision in Koplin, several other courts have reached the same
or similar conclusions in both first-party and third-party spoliation cases. See Temple
Community Hospital, 20 Cal. 4th at 476 (reiterating its reasons for rejecting first-party
spoliation and concluding no tort cause of action will lie for intentional third-party
spoliation because the "burdens and costs of recognizing a tort remedy for third-party
spoliation are considerable—perhaps even greater than in the case of first-party
spoliation"); Meridian Sec. Ins. Co. v. Hoffman Adj. Co., 933 N.E.2d 7, 14 (Ind. App.
2010) (stating that Indiana common law does not recognize an independent cause of
action for intentional or negligent first-party spoliation of evidence); Meyn v. State, 594
N.W.2d 31, 34 (Iowa 1999) (rejecting negligent spoliation claim because it creates
endless litigation, it is difficult to impose on a stranger to the litigation a duty to preserve
evidence, and it is speculative in nature); Teel v. Meredith, 284 Mich. App. 660, 661,
663, 774 N.W.2d 527 (2009), rev. denied 485 Mich. 1134 (2010) (observing that
"Michigan does not yet recognize as a valid cause of action spoliation of evidence that
interferes with a prospective civil action against a third party" and declining to recognize
such an action); Timber Tech v. Home Ins. Co., 118 Nev. 630, 633, 55 P.3d 952 (2002)
(weighing usefulness of spoliation claims against the burdens associated with permitting
them, including "'the burden to litigants, witnesses, and the judicial system'" imposed by
"potentially endless litigation over a speculative loss, and by the cost to society of
promoting onerous record and evidence retention policies"); Elias v. Lancaster General
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Hosp., 710 A.2d 65, 68 (Pa. Super. 1998) (expressly refusing to recognize third-party
negligent spoliation claim and stating in dicta that traditional remedies adequately protect
nonspoiling party in spoliation case); Austin v. Beaufort County Sheriff's Office, 377 S.C.
31, 34-36, 659 S.E.2d 122 (2008) (under the facts, declining to adopt the tort of third-
party spoliation of evidence).

With this background in mind, we consider the application of these authorities to
the facts of this case.

ISSUE 1: CONTRACT, ASSUMPTION OF DUTY, OR SPECIAL RELATIONSHIP?

The principle underlying each of the out-of-state cases and Koplin is that there is
no common-law duty to preserve evidence. Consequently, the duty must arise because of
an independent tort, which we will discuss later, or because of a "contract, agreement,
voluntary assumption of duty, or special relationship of the parties." Koplin, 241 Kan. at
215. (Some states have expanded this list to include a duty based on a statute or
regulation that imposes a duty to preserve documents or materials. See, e.g., Village of
Roselle v. Comm. Edison Co., 368 Ill. App. 3d 1097, 1113, 859 N.E.2d 1 [2006].
Apparently because of this, the district court included statutory duties in its analysis, but
this circumstance is not argued on appeal.)

Superior's first argument focuses on the list of circumstances in which Koplin held
a duty would arise; Superior suggests each circumstance is applicable. Starting with
whether there is a contract or an agreement, although Superior does not counter the
district court's finding that there was not an explicit contract or agreement, it suggests
there was an implied agreement. Superior's argument about the existence of an implied
agreement is essentially the same argument it asserts to suggest that FK Company,
through Stuerman, voluntarily assumed a duty to preserve the records when Stuerman
researched records of sales and orders and provided the information to Superior in 2002.
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But Superior cites no authority to support these arguments. Additionally, from a factual
perspective, voluntarily researching records of sales and orders and providing a summary
of the information is different from either implicitly agreeing or actively undertaking to
preserve records, especially for a period of 5 years after the research was performed.
Without evidence of an agreement or an actual undertaking to preserve the records,
Superior's argument fails. See Restatement (Second) of Torts § 324A (1964) (duty may
arise when one undertakes to render services, whether gratuitously or for consideration);
see Sall v. T's, Inc., 281 Kan. 1355, 1364, 136 P.3d 471 (2006) ("'A defendant's
agreement or affirmative act indicating a willingness to provide services is a threshold
requirement for such a duty to arise.' [Citation omitted.]"); Hauptman v. WMC, Inc., 43
Kan. App. 2d 276, 301-02, 224 P.3d 1175 (2010) (stating that hospital did not, through
affirmative action, assume obligation or intend to render services for benefit of
employees of air ambulance service, precluding recovery under a negligent undertaking
theory). There is no evidence of an undertaking by any of the Defendants to preserve the
records.

This leaves one final category, besides the recognition of an independent tort, from
the Koplin list of potential sources of a duty, i.e., the existence of a special relationship
between the parties. Arguing this category applies, Superior suggests a special
relationship was formed because (1) the Defendants and Superior were a part of the same
chain of product distribution and (2) the Defendants knew Superior was involved in
pending asbestos litigation and that the Defendants could potentially become involved in
asbestos litigation.

Koplin did not provide a definition of the term "special relationship." In other
contexts, this court has stated that a special relationship may arise "between a parent and
child, master and servant, persons in charge of one with dangerous propensities, or
persons with custody of another." Adams v. Board of Sedgwick County Comm'rs, 289
Kan. 577, Syl. ¶ 6, 214 P.3d 1173 (2009). In addition, Kansas pattern jury instructions
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contain a section entitled "Special Relationships of Parties," which identifies and
addresses several categories such as agency relationships, partnerships, employer-
employee relationships, independent contractors, joint ventures, fellow servants, and
duties arising out of the assumption of risk. PIK Civ. 4th 107.00.

None of these relationships exists between Superior and the Defendants. Further,
we know that all of these relationships are not a per se basis for creating a duty to
preserve evidence because the employer-employee relationship, which arguably is most
like the commercial relationship between Superior and the Defendants, did not create a
duty to preserve evidence in Koplin, 241 Kan. at 213. Moreover, none of these sources
explicitly or implicitly support Superior's argument that an arms' length commercial
relationship or chain-of-product-distribution relationship is a "special relationship."
Superior does not cite any other authority specifically supporting the conclusion that a
chain-of-product-distribution relationship is sufficient to create a duty to preserve
evidence. In fact, it concedes it can find no such case.

Without persuasive or controlling authority suggesting a chain-of-product-
distribution relationship gives rise to a duty, we have considered the various policy
reasons cited by the Koplin court for rejecting the tort in a third-party setting and have
concluded each of those reasons, except interference with workers compensation laws,
counters Superior's argument. Specifically,

(1) endless litigation would be generated;
(2) rank speculation would be required as to (a) whether the evidence would
have affected the underlying action, (b) whether the complaining party would have
prevailed, and (c) the amount of damages that would have been recovered;
(3) the scope of the duty would be limitless; and

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(4) there would be an unwarranted intrusion on the property rights of a person
who lawfully disposes of his or her own property. See Koplin, 241 Kan. at 215.

As to this last reason, if we were to recognize a duty to preserve evidence by all
those who stand at a point in the stream of commerce, the duty would extend to those
upstream as well as those downstream. The result would be a far-reaching duty, and one
of the factors weighed by the Koplin court would be extremely relevant: A rule requiring
preservation of evidence would create an intolerable burden of requiring most businesses
to preserve all records. See Koplin, 241 Kan. at 212. As the Koplin court noted, such a
duty would be "limitless." Koplin, 241 Kan. at 215.

These reasons cause us to conclude that simply being in the chain of distribution
of a product or in the stream of commerce, without more, is not a special relationship that
gives rise to a duty to preserve evidence.

ISSUE 2: IS THIS THE NARROW CASE LEFT FOR ANOTHER DAY?

Having concluded the circumstances listed in Koplin that give rise to a duty to
preserve evidence do not apply in this case, we must consider Superior's alternative
argument that this case presents the issue we left for another day in Koplin when we
reserved the question of whether Kansas will recognize an independent tort imposing
liability on "defendants or potential defendants in the underlying case [who] destroyed
the evidence to their own advantage." Koplin, 241 Kan. at 213. The Defendants argue and
the district court concluded that the question need not be answered in this case because
the facts do not fit within the reserved question. Rather, the district court concluded a
spoliation claim between those who are codefendants or potential codefendants in an
underlying action was not included in the reserved question and should not be allowed.
Consequently, the preliminary step of our analysis is whether the Koplin decision
18

includes spoliation claims arising between those who are codefendants or potential
codefendants in the underlying action.

As phrased in Koplin, the reserved question encompasses two groups: (1)
defendants in an underlying lawsuit and (2) potential defendants in an underlying lawsuit,
where it is the plaintiff in the underlying lawsuit making the spoliation claim against
those defendants or potential defendants. In the present lawsuit, it is uncontroverted that
the Defendants were not a party to any underlying litigation when they destroyed the
records. But Superior argues the Defendants were potential defendants in a lawsuit that
Superior or others might bring. To establish this point, Superior provided the district
court with a civil complaint in which a plaintiff claiming asbestos-related injuries sued
some of the Defendants. In that action, the plaintiff also asserted a negligent spoliation
claim against FK Company. That claim fits the prototype of first-party spoliation claims,
i.e., spoliation claims brought by the plaintiff in the underlying action. Koplin, 241 Kan.
at 207; Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 245-48, 905 A.2d 1165 (2006);
see, e.g., Fletcher v. Dorchester Mutual Insurance Company, 437 Mass. 544, 546, 773
N.E.2d 420 (2002). If that action had been filed in Kansas, it would present the classic,
first-party spoliation claim that was clearly reserved in Koplin. In that situation, however,
Superior would not have a right to recover for damages incurred by the plaintiff who
incurred personal injury from asbestos exposure and who also claimed damages caused
by FK Company's destruction of its business records. Rather, Superior must establish a
causal relationship between the destruction of the records and any alleged damages to
Superior. See Foster v. Lawrence Memorial Hosp., 809 F. Supp. 831, 836 (D. Kan. 1992)
(identifying elements of spoliation tort, including damages and causation).

In contrast, the spoliation claim in the present case is made by a defendant in the
underlying suit against a potential codefendant in the underlying suit. Despite this
difference between this case and the classic, first-party spoliation case, Superior argues
the phrase "potential defendant" is broad enough to incorporate claims between
19

codefendants and Koplin can be read to have contemplated such a situation. Furthermore,
Superior suggests that the Koplin court strongly implied we would recognize the breach
of such a preservation duty as a first-party spoliation claim and would recognize a right to
recover damages. See Foster, 809 F. Supp. at 838 (concluding that "[w]hile Koplin did
not recognize the intentional tort of spoliation under the facts of that case, a fair reading
of the case indicates that the tort would be adopted under certain factual scenarios").

We disagree with these arguments because statements in Koplin suggest
otherwise. For example, when distinguishing Smith v. Superior Court, 151 Cal. App. 3d
491, 198 Cal. Rptr. 829 (1984), and Hazen v. Municipality of Anchorage, 718 P.2d 456
(Alaska 1986), the Koplin court noted those cases related to "evidence [that] was
destroyed by the adverse party in pending litigation to the direct benefit of such party."
(Emphasis added.) Koplin, 241 Kan. at 212.

Nevertheless, Superior's arguments also suggest that even if the court in Koplin
did not contemplate the situation presented in this case, we should now recognize an
independent tort applicable in such circumstances. To further this argument, Superior
contends it has a potential first-party spoliation claim because it might assert a cross-
claim against the Defendants in underlying litigation, a third-party claim in underlying
litigation, or a comparative implied indemnity claim in a collateral action. To illustrate
that a comparative implied indemnity claim is a possibility, Superior cites Blackburn, Inc.
v. Harnischfeger Corp., 773 F. Supp. 296 (D. Kan. 1991).

Blackburn arose after an employee was injured by a defective crane and sued the
crane's owner, his employer, and the crane's manufacturer. After the employer settled the
claim with the employee, the owner sued the crane manufacturer based on a theory of
comparative implied indemnity under Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d
788 (1980). The federal district court held that the employer could bring the comparative
implied indemnity claim against the manufacturer. Blackburn, 773 F. Supp. at 299-300.
20

Superior contends it could have a similar claim against the Defendants. We note
that because Superior's arguments suggest such a claim could be brought even if the
Defendants were not named as parties in an underlying suit, it raises issues of first
impression. See Dodge City Implement, Inc. v. Board of Barber County Comm'rs, 288
Kan. 619, 632, 637, 205 P.3d 1265 (2009) (reconciling one-action rule in context other
than chain of distribution and concluding Kennedy must be read in the context of its
factual situation, i.e., chain of distribution/indemnification with all those in chain named
as a party in underlying action). We need not sort out these issues, however. Instead,
considering that we must accept the facts in the light most favorable to Superior, we will
also accept the possibility of its asserted legal theories. In doing so, we note that any such
claims based on these legal theories would arise because Superior and the Defendants are
codefendants or potential codefendants/indemnitors. Accepting that a potential claim
against the Defendants was foreseable, we will consider Superior's suggestion that a
preservation duty arises. To support the argument, Superior relies on several federal cases
and also raises a policy argument.

A number of the federal decisions that Superior cites considered whether a court
could impose discovery sanctions when a party had destroyed evidence at a time when
the party "knew or should have known that the destroyed evidence was relevant to
pending, imminent or reasonably foreseeable litigation." Shamis v. Ambassador Factors
Corp., 34 F. Supp. 2d 879, 888-89 (S.D.N.Y. 1999); see also John B. v. Goetz, 531 F.3d
448, 458-59 (6th Cir. 2008) (discovery sanctions may be imposed for destruction of
evidence if party has notice that the evidence is relevant to litigation); Fujitsu Ltd. v.
Federal Exp. Corp., 247 F.3d 423, 436 (2d Cir. 2001) (same); KCH Services, Inc. v.
Vanaire, Inc., No. 05-777-C, 2009 WL 2216601, at *1-2 (W.D. Ky. 2009) (considering
sanctions and appropriateness of adverse inference instruction when filing of suit gave
notice that evidence was relevant). Suggesting a similar test applies, Superior argues the
Defendants should have recognized that a claim against them was reasonably foreseeable.

21

In addition, Superior cites a case that did not deal with discovery sanctions, Lewy
v. Remington Arms Co., Inc., 836 F.2d 1104 (8th Cir. 1988), to suggest a duty arose.
Lewy involved a direct appeal from a jury verdict in a products liability case. The
appellate court found error on an issue not relevant to our discussion, remanded the case
for a new trial, and provided guidance to the trial court on an issue that arose because the
defendant had destroyed records. That issue was whether the trial court erred in
instructing the jury that "'[i]f a party fails to produce evidence which is under his control
and reasonably available to him and not reasonably available to the adverse party, then
you may infer that the evidence is unfavorable to the party who could have produced it
and did not.'" Lewy, 836 F.2d at 1111 (quoting 3 Devitt, Blackmar & Wolff, Federal Jury
Practice and Instructions § 72.16 [4th ed. 1987]). On appeal, the defendant argued the
instruction should not have been given because the evidence had been destroyed pursuant
to a longstanding record retention policy. The appellate court determined it could not
resolve the question on the record before it but opined that blind adherence to a retention
schedule was not the only consideration when numerous consumer complaints had been
filed regarding a product. The appellate court directed that on remand the trial court
should "consider whether lawsuits concerning the complaint or related complaints have
been filed, the frequency of such complaints, and the magnitude of the complaints" when
deciding if it was appropriate to give the instruction. Lewy, 836 F.2d at 1112. Superior
compares the number, frequency, and magnitude of the asbestos complaints and litigation
to argue the Defendants should be held liable for damages for destroying the records.

We reject this argument because the cases are distinguishable from this case and
the holdings advance different policy considerations from those that apply when
considering if an independent tort should be recognized. Most significantly, these cases
are distinguishable because they involve one party in a case seeking sanctions against an
adverse party in the underlying litigation. Second, while the cases focus on actions taken
while the spoliator was merely a potential defendant, in each case the spoliator became an
actual defendant. Third, the party's duty to preserve records and the court's power to
22

impose sanctions and other remedies in those cases arose primarily from the rules of civil
procedure and from the court's inherent power to control litigation before it. See
Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003). These sources
relate to adverse parties in the underlying litigation and do not suggest a duty that can be
the basis for an independent tort between codefendants or potential codefendants.

Moreover, Superior cites these cases for their definition of foreseeability. But we
have accepted that it was foreseeable that the Defendants could be involved in litigation
where the destroyed evidence would be relevant. Foreseeability is only one of the
elements necessary to establish an independent tort of spoliation, however. This concept
was explained by the Illinois Supreme Court:

"As a general rule, there is no duty to preserve evidence. [Citation omitted.]
However, . . . the existence of two elements will create a duty. First, a duty to preserve
evidence may arise through an agreement, a contract, a statute, or another special
circumstance, or where a defendant voluntarily assumes a duty by affirmative conduct.
[Citation omitted.] This element is commonly referred to as the 'relationship prong.'
[Citation omitted.] Once a plaintiff proves the relationship prong, the plaintiff must
establish the 'foreseeability prong.' [Citation omitted.] That is, the plaintiff must
demonstrate that a reasonable person in the defendant's position should have foreseen that
the evidence was material to a potential civil action, and the pleadings must allege facts
describing such circumstances. [Citation omitted.] In the absence of either the
relationship or the foreseeability prong, there is no duty to preserve evidence. [Citation
omitted.]" Village of Roselle, 368 Ill. App. 3d at 1113.

See Glotzbach v. Froman, 854 N.E.2d 337, 341 (Ind. 2006) ("'Mere ownership of
potential evidence, even with knowledge of its relevance to litigation, does not suffice to
establish a duty to maintain such evidence.'") This rationale melds well with our Koplin
analysis, where this court did not focus on foreseeability but on the existence, or lack
thereof, of a duty to preserve the evidence. See Koplin, 241 Kan. 206, Syl. ¶ 1.
23

In addition, the policy concerns raised in these federal cases are different from
those considered in Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, 212-15, 734
P.2d 1177 (1987), and by other courts deciding if an independent tort should be
recognized. In fact, the availability of remedies—sanctions and an adverse evidentiary
inference—in the underlying litigation is a factor that most courts have cited as a reason
for not recognizing the independent tort of first-party spoliation. For example, in Cedars-
Sinai Medical Center v. Superior Court, 18 Cal. 4th 1, 17, 74 Cal. Rptr. 2d 248, 954 P.2d
511 (1998), the court stated these "remedies will in most cases be effective at ensuring
that the issues in the underlying litigation are fairly decided." The court concluded that
imposing these remedies in the underlying litigation was preferable to "opening up the
decision on the merits of the underlying causes of action to speculative reconsideration
regarding how the presence of the spoliated evidence might have changed the outcome."
Cedars-Sinai Medical Center, 18 Cal. 4th at 17. Such an independent tort remedy, the
court concluded, "would not only create a significant risk of erroneous findings of
spoliation liability but would impair the fundamental interest in the finality of
adjudication and the stability of judgments." Cedars-Sinai Medical Center, 18 Cal. 4th at
17.

One policy concern is common to both cases discussing an independent tort and
those discussing remedies such as sanctions. That concern is punishing a party who has
weakened the integrity of the truth-seeking process of litigation. Superior argues this
policy compels recognition of an independent tort. It asserts this policy becomes a
primary consideration in products liability types of cases. Relying on the holding in
Blackburn, 773 F. Supp. 296, that comparative implied indemnity could apply to those in
a product's chain of distribution, Superior emphasizes the goals of spreading risk in the
context of products liability and of ensuring full recovery for injured plaintiffs. Superior
argues these goals would not be advanced by allowing potential defendants to destroy
evidence at the first sign of litigation. According to Superior, if this court does not
recognize a spoliation tort under these circumstances, potential tort defendants will be
24

encouraged to "make a mad dash [to] the nearest document shredder upon realizing their
potential liability." Superior also fears that attorneys representing such potential tort
defendants will be "encouraged to advise their clients to engage in that very same
pursuit." In this vein, Superior asserts that notions of fairness and equity should provide a
remedy for Superior whose interests suffered damages due to the "irresponsible and self-
serving conduct" exhibited by the Defendants.

We do not disagree with the spirit of this argument. The Supreme Court of
California explained it well when it stated:

"No one doubts that the intentional destruction of evidence should be
condemned. Destroying evidence can destroy fairness and justice, for it increases the risk
of an erroneous decision on the merits of the underlying cause of action. Destroying
evidence can also increase the costs of litigation as parties attempt to reconstruct the
destroyed evidence or to develop other evidence, which may be less accessible, less
persuasive, or both." Cedars-Sinai Medical Center, 18 Cal. 4th at 8.

But in the very next sentence the court stated: "That alone, however, is not enough to
justify creating tort liability for such conduct." Cedars-Sinai Medical Center, 18 Cal. 4th
at 8. After weighing these concerns against the costs and burdens that would be imposed
by recognizing an independent tort of spoliation, the California court held it would not
recognize a tort remedy for the intentional destruction of evidence by a party to litigation
when the spoliation was or should have been discovered before the conclusion of the
litigation. Cedars-Sinai Medical Center, 18 Cal. 4th at 17-18.

The Koplin court similarly weighed the policy rationale of preserving evidence
against the burdens caused by imposing a preservation duty on a third party and
concluded that imposing a duty to preserve "all possible physical evidence" would be an
"intolerable burden" on the right of a property owner. Koplin, 241 Kan. at 212. The same
25

concerns arise in a case such as this where a claim is brought by one defendant in an
underlying action against a potential codefendant in the underlying action.

In addition, the weight of authority is contrary to Superior's argument. Superior
candidly concedes it has found no case in which a court has recognized an independent
tort in an action between those who were codefendants or potential codefendants in an
underlying action. On the other hand, some courts have refused to recognize the tort in
these circumstances. For example, in Timber Tech v. Home Ins. Co., 118 Nev. 630, 633,
55 P.3d 952 (2002), a subcontractor that had installed trusses for a ceiling, after settling
with those injured when the roof collapsed, sued the contractor and others alleging
spoliation because the ceiling debris had not been preserved. The subcontractor argued it
could not prove it was not responsible for the collapse because the debris was central to
its defense. The Nevada court refused to recognize the independent tort of spoliation and
also rejected a claim for negligence, concluding the contractor did not owe a duty to
preserve the evidence. Timber Tech, 118 Nev. at 633-34. Similarly, in Temple
Community Hospital v. Superior Court, 20 Cal. 4th 464, 466, 84 Cal. Rptr. 2d 852, 976
P.2d 223 (1999), the plaintiff, a patient who was severely burned during surgery when a
medical device ignited flammable gases, sued the hospital for spoliation of evidence after
her personal injury action against the device's manufacturer was unsuccessful because the
hospital had destroyed the device and some records. The California Supreme Court
refused to recognize a third-party spoliation claim related to the plaintiff's product
liability action, even though the potential existed for claims against the hospital, albeit on
a different theory of recovery, at the time it destroyed the evidence. Temple Community
Hospital, 20 Cal. 4th at 469-78. These and other cases arose in situations where the
spoliator was a potential codefendant; yet a duty to preserve the evidence was not
recognized.

In treating the relationship of a potential defendant as a third-party spoliation
situation, the California Supreme court in Temple Community Hospital, 20 Cal. 4th at
26

472-76, discussed many of the same policy considerations as were listed by this court in
Koplin when it refused to recognize an independent tort of third-party spoliation. Many of
these policy considerations were emphasized by the district court and by the Defendants.

For example, Defendants Stuerman and FK Company, in their appellate brief,
emphasize that a codefendant relationship is unique and raises different policy concerns
than those raised in other cases. They suggest that when someone who is not a party to
litigation destroys potential evidence on its own initiative and that evidence has not been
subpoenaed by the district court, "it requires massive degrees of speculation to conclude
that a defendant [in the underlying lawsuit], who does not have the burden of proof, has
suffered significant harm." The district court agreed with this point. We also agree that
this consideration is valid, distinguishes this case from the others we have discussed, and
raises the same or similar policy concerns to those discussed in Koplin.

Further, in Defendant Kimball's appellate brief he points out that in Superior's
response in opposition to Kimball's motion and memorandum for summary judgment,
Superior acknowledged that it possesses "some but not all of the purchase orders and
invoices" containing the names of products purchased by Superior from the Defendants,
the dates of purchase, and the quantities purchased. Superior has provided no explanation
for why it does not have information about all of its orders with the Defendants, and we
can imagine no legal or policy reason to impose a duty on the Defendants to preserve
information that Superior could have preserved. In addition, the information about which
products did or did not contain asbestos is potentially available from another
codefendant, Plibrico. See Dillon v. Nissan Motor Co., Ltd., 986 F.2d 263, 267-68 (8th
Cir. 1993) (considering plaintiffs' claims that the nonspoliating party was not prejudiced
because there was ample evidence available for the defendant to use in defending against
the design defect claim).

27

We note these points to underscore the difficulty of pinpointing the prejudice that
might arise from the unavailability of evidence when that prejudice is assessed in a
collateral proceeding between codefendants that created or had access to various records
that would be used to defend a principal or underlying litigation. A defendant in the
underlying litigation would not have the burden of proof, and it would be difficult, if not
impossible, to assess the damages. Another policy issue that would arise if we were to
recognize a tort between codefendants or potential codefendants, including those who
could bring claims of comparative implied indemnity, is the possibility that parties on
both sides of the underlying litigation—i.e., the plaintiff and the spoliator's
codefendant—may be injured by the spoliator's single act of destroying evidence, thereby
giving rise to two claims with potentially inconsistent or duplicative verdicts. See Temple
Community Hospital, 20 Cal. 4th at 478. Finally, we note that the policy concerns that led
us to hold a duty did not arise because of a chain-of-product-distribution relationship
would also be raised by recognizing an independent tort between codefendants: (1)
endless litigation would be generated; (2) rank speculation would be required as to (a)
whether the evidence would have affected the underlying action, (b) whether the
complaining party would have prevailed, and (c) the amount of damages that would have
been recovered; (3) the scope of the duty would be limitless; and (4) there would be an
unwarranted intrusion on the property rights of a person who lawfully disposes of his or
her own property. See Koplin, 241 Kan. at 215.

Consequently, we conclude that an independent tort of spoliation will not be
recognized in Kansas for claims by a defendant against codefendants or potential
codefendants, including potential indemnitors under a theory of comparative implied
indemnification.

Affirmed.


28

BILES, J., not participating.
PIERRON and LEBEN, JJ., assigned.
1


1
REPORTER'S NOTE: Pursuant to the authority vested in the Supreme Court by
K.S.A. 20-3002(c), Judge G. Joseph Pierron, Jr., of the Kansas Court of Appeals, was
appointed to hear case No.103,367 vice Justice Biles. Pursuant to the same statutory
authority, Judge Steve Leben, of the Kansas Court of Appeals, was appointed to hear the
same case to fill the vacancy on the court created by the retirement of Chief Justice
Robert E. Davis.