Proving Damages of Negligent Spoliation of Evidence
Just as the plaintiff in a negligent-spoliation action must prove the other three elements of a negligence action (duty, breach, and proximate cause), such a plaintiff also must prove damage.
The appropriate measure of damages is difficult to determine in spoliation cases because, without the missing evidence, the likelihood of the plaintiff's prevailing on the merits cannot be precisely determined.
"It would seem to be sheer guesswork, even presuming that the destroyed evidence went against the spoliator, to calculate what it would have contributed to the plaintiff's success on the merits of the underlying lawsuit." Petrik v. Monarch Printing Corp., supra, 150 Ill. App. 3d 248, 260, 501 N.E.2d 1312, 1320, 103 Ill. Dec. 774, 782 (1987).
However, courts have long recognized the need to remedy a wrong despite the fact that a proper award of damages is difficult to determine.
"When a defendant's tortious conduct precludes precise calculation of the amount of damages:
"'the jury may make a just and reasonable estimate of damage based on relevant data .... Any other rule would enable the wrongdoer to profit by his wrongdoing at the expense of his victim. It would be an inducement to make wrongdoing so effective and complete in every case as to preclude any recovery, by rendering the measure of damages uncertain. Failure to apply it would mean the more grievous the wrong done, the less likelihood there would be of a recovery.
"'The most elementary conceptions of justice and public policy require [that] the wrongdoer shall bear the risk of the uncertainty which his own wrong has created.'"
Id., 150 Ill. App. 3d at 261, 501 N.E.2d at 1321, 103 Ill. Dec. at 783, quoting Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264-65, 90 L. Ed. 652, 66 S. Ct. 574 (1946).
"'The wrongdoer is not entitled to complain that damages cannot be measured with the exactness and precision that would be possible if the case, which he alone is responsible for making, were otherwise.'" Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563, 75 L. Ed. 544, 51 S. Ct. 248 (1931), as quoted in American Life Ins. Co. v. Shell, 265 Ala. 306, 311, 90 So. 2d 719, 723 (1956).
"To deny the injured party the right to recover any actual damages in such cases, because they are of a nature which cannot be thus certainly measured, would be to enable parties to profit by, and speculate upon, their own wrongs, encourage violence and invite depredation. Such is not, and cannot be the law, though cases may be found where courts have laid down artificial and arbitrary rules which have produced such a result."
American Life Ins. Co. v. Shell, 265 Ala. at 312, 90 So. 2d at 723 (again quoting Story Parchment Co. (quoting in turn other cases).
"But shall the injured party in an action of tort, which may happen to furnish no element of certainty, be allowed to recover no damages (or merely nominal), because he cannot show the exact amount with certainty, though he is ready to show, to the satisfaction of the jury, that he has suffered large damages by the injury? Certainty, it is true, would thus be attained; but it would be the certainty of injustice."Id.
If the lost or destroyed evidence is vital toa party's claim or defense and the evidence was lost or destroyed through no fault of the innocent party, the wrongdoer should bear the risk.