                          IN THE SUPREME COURT OF MISSISSIPPI

                                       NO. 2002-CA-01038-SCT

DONALD JOE RICHARDSON

v.

SARA LEE CORPORATION


DATE OF JUDGMENT:                                  05/21/2002
TRIAL JUDGE:                                       HON. V. R. COTTEN
COURT FROM WHICH APPEALED:                         SCOTT COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                            JOSEPH E. ROBERTS, JR.
ATTORNEYS FOR APPELLEE:                            FORREST W. STRINGFELLOW
                                                   ROBERT J. ARNOLD, III
NATURE OF THE CASE:                                CIVIL - TORTS-OTHER THAN PERSONAL
                                                   INJURY & PROPERTY DAMAGE
DISPOSITION:                                       AFFIRMED - 06/05/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



        BEFORE SMITH, P.J., CARLSON AND GRAVES, JJ.

        CARLSON, JUSTICE, FOR THE COURT:


¶1.     In this appeal from the Scott County Circuit Court, Donald Joe Richardson (“Richardson”) requests

this Court to recognize a cause of action for intentional and/or negligent spoliation of evidence and to hold

that his employer, Sara Lee Corporation (“Sara Lee”), is not immune under the exclusivity provision of the

Workers’ Compensation Act, Miss. Code Ann. §§ 71-3-1 to -129 (Rev. 2000 & Supp. 2002). For the

reasons hereinafter discussed, we decline Richardson’s invitation to recognize such a cause of action and

therefore affirm the trial court’s grant of Sara Lee’s Motion to Dismiss or, in the Alternative, Motion for
Summary Judgment. Because this issue is dispositive, there is no need to address the second issue on

appeal.

                      FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2.       On or about October 23, 1993, Richardson sustained an on-the-job injury during his employment

with Sara Lee. While he was operating a Hyster Orderpicker, manufactured by NACCO Material Group

Inc. and/or Hyster Company, the lift on the Orderpicker fell causing injuries to Richardson’s leg, foot, and

ankle. A settlement of Richardson’s workers’ compensation claim was approved by the Mississippi

Workers’ Compensation Commission, and Richard executed a release dated June 27, 1997, releasing

Sara Lee from “any and all claims” he may have “on account of, arising out of, or connected with” the on-

the-job injury.

¶3.       Prior to the settlement of the workers' compensation claim, Richardson, in 1996, filed suit alleging

negligent design, manufacture, and distribution of the Orderpicker against NACCO Materials Handling

Group, Inc. and/or Hyster Company in the Circuit Court of Smith County, Mississippi. During the course

of litigation, a subpoena duces tecum was served upon Sara Lee requesting documentation concerning the

whereabouts of the Orderpicker. On July 31, 1996, Sara Lee responded to the service of the subpoena

duces tecum by stating that it had disposed of the Orderpicker. Richardson testified in his deposition of

May of 1997 that he knew that Sara Lee no longer had the Orderpicker, but did not know when it

disposed of it. Subsequently, that suit was dismissed on May 25, 1999, pursuant to an Agreed Order

Granting Summary Judgment, acknowledging that the Orderpicker in question had been destroyed, and

therefore Richardson would not be able to prove the requisite elements of his case.

¶4.       The instant litigation was filed on March 7, 2000, against Sara Lee alleging negligent spoliation of

evidence. Sara Lee’s Motion to Dismiss or, in the Alternative, Motion For Summary Judgment was


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granted by the circuit court on May 21, 2002. Richardson has raised two issues on appeal: (1) whether

a separate cause of action against third parties for negligent and/or intentional spoliation of evidence should

be recognized by the Mississippi courts, and (2) whether a claim for intentional and/or negligent destruction

of evidence is a work-related injury barred by the exclusive remedy provision of the Mississippi Workers’

Compensation Act.

                                       STANDARD OF REVIEW

¶5.      It is not clear whether the trial court granted Sara Lee’s motion to dismiss or motion for summary

judgment. The final judgment indicates that the “plaintiff has not asserted any cause of action which is

recognized by Mississippi law.” There is no indication that this judgment is based upon Miss. R. Civ. P.

12(b)(6), 12(c), or 56. “The standard of review for all three are similar in that the non-moving party is

favored in the review of the facts.” Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1209

(Miss. 2001). Because a motion to dismiss under Miss. R. Civ. P. 12(b)(6) raises an issue of law, this

Court will review such motions de novo. Id. at 1210 (¶7). A motion for judgment on the pleadings under

Miss. R. Civ. P. 12(c) serves a similar function to Rule 12(b)(6) which we also review de novo. Id. (¶8).

As to the review of a trial court’s granting of a motion for summary judgment under Rule 56, we employ

a de novo standard of review and the motion should be granted only when there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law. Id. at 1209 (¶6) (citations

omitted). See also Brown v. Credit Ctr., Inc., 444 So.2d 358, 362-65 (Miss. 1983) and its progeny.

If a trial judge is confronted with a Rule 12(c) motion to dismiss and considers matters outside the pleadings

en route to ruling on that motion, the motion shall be treated as a Rule 56 motion. See Miss. R. Civ. P.

12(c).

                                                ANALYSIS

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        I.      WHETHER A SEPARATE CAUSE OF ACTION AGAINST THIRD
                PARTIES FOR NEGLIGENT AND/OR INTENTIONAL SPOLIATION
                OF EVIDENCE SHOULD BE RECOGNIZED BY THE MISSISSIPPI
                COURTS?

¶6.     Richardson urges this Court to adopt and recognize a tort claim for the spoliation of evidence,

whether that spoliation be negligent or intentional. Alternatively, Richardson urges this Court to hold that

Sara Lee is liable under a general theory of negligence. In all fairness, we should state here that after the

notice of appeal had been filed in this case, and after the Supreme Court Clerk’s establishment of the

briefing schedule as set out in her letter of October 14, 2002, this Court had the opportunity to consider

a claim for intentional spoliation of evidence. Dowdle Butane Gas Co. v. Moore, 831 So.2d 1124

(Miss. 2002). In Dowdle, decided on December 5, 2002, this Court refused to “recognize a separate tort

for intentional spoliation of evidence against both first and third party spoliators.” Id. at 1135 (¶28).

Inasmuch as we were requested in Dowdle to consider only a claim for intentional spoliation of evidence,

“the question of whether we will recognize a separate cause of action for negligent spoliation of evidence

we leave for another day.” Id. at 1127 (¶7). Today, we are confronted with that question. In writing for

the Court in Dowdle, Presiding Justice Smith provided an overview of this theory’s origin in California

and how different jurisdictions have dealt with both intentional and negligent spoliation of evidence. See

generally id. at 1133-35. The reasoning of this Court (and that of other jurisdictions) in refusing to

recognize a separate tort of intentional spoliation included infringement on the rights of property owners,

endless litigation, and uncertainty of the fact of harm. This Court held that:

        Nontort remedies for spoliation are sufficient in the vast majority of cases, and certainly,
        as the California courts have learned after 14 years of experience with this tort, any
        benefits obtained by recognizing the spoliation tort are outweighed by the burdens
        imposed.



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Id. at 1135 (¶30). The Dowdle reasoning in refusing to recognize an independent cause of action for

intentional spoliation of evidence gains even more force when applied to the issue of whether to recognize

an independent cause of action for negligent spoliation of evidence. Accordingly, we decline Richardson’s

invitation to recognize this independent tort.

¶7.     Under his alternative theory of negligence, Richardson claims that the duty to preserve the

Orderpicker was created upon receipt of a letter from Richardson’s counsel to Sara Lee, dated November

14, 1994, requesting an opportunity to inspect the Orderpicker. However, Richardson fails to identify any

statute or case that placed a duty on Sara Lee to preserve the Orderpicker. “The failure to cite any

authority can be treated as a procedural bar, and this Court is under no obligation to consider the

assignments.” Smith v. Dorsey, 599 So.2d 529, 532 (Miss. 1992).

¶8.     Notwithstanding the procedural bar, this Court is not persuaded that the November 14, 1994, letter

was sufficient to place an affirmative duty on Sara Lee to preserve the Orderpicker. There is nothing

further in the record addressed to Sara Lee concerning the Orderpicker until the June 18, 1996, Subpoena

Duces Tecum, nearly nineteen months later. We find this letter insufficient to establish a duty by Sara Lee

to preserve the Orderpicker for use in litigation by Richardson.

¶9.     For these reasons, this issue is without merit, and the trial court’s actions were thus proper.

        II.     WHETHER A CLAIM FOR INTENTIONAL AND/OR NEGLIGENT
                DESTRUCTION OF EVIDENCE IS A WORK RELATED INJURY
                BARRED BY THE EXCLUSIVE REMEDY PROVISION OF THE
                MISSISSIPPI WORKERS’ COMPENSATION ACT.

¶10.    Because the decision on the first issue is dispositive, there is no need to address this second issue.

                                             CONCLUSION




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¶11.    We affirm the trial court’s grant of Sara Lee’s Motion to Dismiss or, in the Alternative, Motion for

Summary Judgment. In Dowdle, this Court refused to recognize a separate tort for intentional spoliation

of evidence against either first or third party spoliators, and this Court’s reasoning in Dowdle certainly

undergirds our decision today in refusing to recognize a separate tort for negligent spoliation of evidence.

We further hold that under a general negligence theory, Sara Lee was not under any duty to preserve the

Orderpicker for the benefit of any litigation in which Richardson may be involved.

¶12.    AFFIRMED.

     PITTMAN, C.J., SMITH, P.J., WALLER, COBB AND GRAVES, JJ., CONCUR. DIAZ
AND EASLEY, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J,
NOT PARTICIPATING.




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