Janitor Not Wrong for Good Cleanup

Janitors who clean up after lawyers can breathe a deep sigh of relief.

A recent California Court of Appeal decision dismissed a civil suit against a building-maintenance company for inadvertently throwing away a crucial piece of evidence.

Pedro Velasco and his son were injured when a bottle exploded. They later took the bottle fragments to a lawyer who intended to use the fragments as evidence in a product-liability suit against the bottle manufacturer. The bottle fragments were left in a brown paper bag on the lawyer’s desk. The bag and its valuable contents were then apparently thrown away by a custodian.

Filed a Suit

The Velascos sued the custodial company, arguing that the custodian should have known the bag was not to be thrown away because it was not in a trash can. The court, in an opinion issued in late June by Justice Vincent S. Dalsimer, ordered the case dismissed.

The court recognized the right to file a civil suit for the negligent destruction of evidence but ruled that the custodial company simply hadn’t done anything wrong. In other words, the custodian was not negligent by throwing out the paper bag.

“It is reasonable for a maintenance person who sees a bag containing a broken bottle in the course of cleaning an office to remove it in much the same way as he or she would throw away the remains of a mid-morning coffee break,” Dalsimer said.

“No important policy would be furthered by a holding that maintenance workers have a duty not to throw away what appears to be trash simply because such objects are located in an attorney’s office.”

Recent Phenomenon

Civil lawsuits for the destruction of evidence are a relatively recent phenomenon. Since 1872, it has been a crime in California to intentionally destroy or conceal anything about to be produced in evidence in a trial. But all of the reported criminal prosecutions have involved evidence in criminal cases.

It was not until the last few years that California courts have agreed that intentionally or negligently destroying evidence was a tort--a civil wrong--which could be the basis for a civil suit for damages. (The damages, which can be very difficult to substantiate during trial, would be the amount of money you would have won in your civil suit if the evidence had not been destroyed.)

In one case, a wheel of a Ford van crashed into a woman’s windshield and blinded her, according to a court opinion. The van was towed to a Ford dealer for repairs. The woman’s lawyer said the dealer agreed to maintain certain automotive parts pending further investigation, but the parts were either lost or destroyed.

The woman sued for what she called intentional spoliation of the evidence. It was illegal--criminal--to destroy evidence, the trial court decided, but such an intentional tort did not exist. She could not pursue her suit for damages. But the court of appeal, in an unprecedented opinion by Presiding Justice Joan Dempsey Klein, decided to recognize the new tort and allow the case to proceed.

Crime and Tort Differ

It is important here to understand the difference between a crime and a tort. As the late Prof. William L. Prosser explained: “A crime is an offense against the public at large, for which the state, as the representative of the public, will bring proceedings in the form of a criminal prosecution. The purpose of such a proceeding is to protect and vindicate the interests of the public as a whole, by punishing the offender or eliminating him from society.

“The civil action for a tort, on the other hand,” Prosser said, “is commenced and maintained by the injured person himself, and its purpose is to compensate him for the damage he has suffered, at the expense of the wrongdoer. If he is successful, he receives a judgment for a sum of money, which he may enforce by collecting it from the defendant.”

The lawyer’s janitor doesn’t have to worry. He thought he was throwing away trash and didn’t commit a crime or a tort. But if you’re involved in a lawsuit, do your best to preserve any possible evidence. Put it in a safe place.

And ask your lawyer not to leave it lying on a desk.

Attorney Jeffrey S. Klein, a member of The Times’ corporate legal staff, cannot answer mail personally but will respond in this column to questions of general interest about the law. Do not telephone. Write to Legal View, You section, The Times, Times Mirror Square, Los Angeles 90053.