                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #032


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 30th day of June, 2015, are as follows:



BY CLARK, J.:


2014-C -2362      RICHARD L. REYNOLDS v. ROBERT J. BORDELON III, ROBERT J. BORDELON
                  JR., USAGENCIES CASUALTY INSURANCE COMPANY, AUTOMOBILE CLUB
                  INTER-INSURANCE EXCHANGE, AND/OR AUTO CLUB FAMILY INSURANCE
                  COMPANY D/B/A TRIPLE A INSURANCE, NISSAN NORTH AMERICA, INFINITY
                  DIVISION OF NISSAN NORTH AMERICA, INC., A LUXURY CAR DIVISION OF
                  NISSAN MOTORS, INSURANCE AUTO AUCTIONS CORP., ABC INSURANCE
                  COMPANY, DEF INSURANCE COMPANY AND XYZ INSURANCE COMPANY      C/W
                  STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AS SUBROGEE OF/AND
                  LINDA DUPUY     v.     ROBERT BORDELON AND USAGENCIES CASUALTY
                  INSURANCE COMPANY (Parish of St. Tammany)

                  We find the petition alleges sufficient facts to support a breach
                  of contract cause of action. Thus, we reverse the judgment that
                  granted the exception of no cause of action and remand to the
                  trial court for consideration of the contract claim. We offer no
                  opinion as to the ultimate success of this cause of action or to
                  any defense thereto.
                  REVERSED AND REMANDED.

                  WEIMER, J., additionally concurs and assigns reasons.
                  CRICHTON, J., additionally concurs and assigns reasons.
06/30/15



                      SUPREME COURT OF LOUISIANA

                                 NO. 2014-C-2362

                            RICHARD L. REYNOLDS

                                     VERSUS

   ROBERT J. BORDELON III, ROBERT J. BORDELON JR., USAGENCIES
    CASUALTY INSURANCE COMPANY, AUTOMOBILE CLUB INTER-
  INSURANCE EXCHANGE, AND/OR AUTO CLUB FAMILY INSURANCE
   COMPANY D/B/A TRIPLE A INSURANCE, NISSAN NORTH AMERICA,
INFINITY DIVISION OF NISSAN NORTH AMERICA, INC., A LUXURY CAR
 DIVISION OF NISSAN MOTORS, INSURANCE AUTO AUCTIONS CORP.,
     ABC INSURANCE COMPANY, DEF INSURANCE COMPANY AND
                   XYZ INSURANCE COMPANY

                             CONSOLIDATED WITH

     STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
              AS SUBROGEE OF/AND LINDA DUPUY

                                     VERSUS

                      ROBERT BORDELON AND
             USAGENCIES CASUALTY INSURANCE COMPANY

           ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
               FIRST CIRCUIT, PARISH OF ST. TAMMANY

CLARK, J.

      We granted certiorari to determine whether Louisiana recognizes the tort of

negligent spoliation. For the reasons that follow, we hold that no cause of action

exists for negligent spoliation of evidence. Regardless of any alleged source of the

duty, whether general or specific, public policy in our state precludes the existence

of a duty to preserve evidence. Thus, there is no tort. Alternative avenues of

recourse are available within Louisiana’s evidentiary, discovery, and contractual

laws. Nonetheless, we remand for further consideration of the plaintiff’s petition,

finding sufficient facts were alleged by the plaintiff to state a potential breach of

contract claim.
                      FACTS AND PROCEDURAL HISTORY

       On March 15, 2008, a multi-vehicle accident occurred in St. Tammany

Parish. The plaintiff, Richard Reynolds, sustained injuries and filed suit against

Robert Bordelon, III, the driver alleged to have caused the accident. The plaintiff

also asserted claims under the Louisiana Products Liability Act against Nissan

North America (“Nissan”), the alleged manufacturer and distributer of the

plaintiff’s 2003 Infiniti G35, for failure of the airbag to deploy.1 Additionally, the

plaintiff’s petition alleged that his insurer, Automobile Club Inter-Insurance

Exchange (“ACIIE”) and the custodian of his vehicle after the accident, Insurance

Auto Auctions Corporation (“IAA”), failed to preserve his vehicle for inspection

purposes to determine whether any defects existed, despite being put on notice of

the need for preservation.

       ACIIE and IAA each filed exceptions of no cause of action, arguing a claim

of spoliation of evidence requires “an intentional destruction of evidence for the

purpose of depriving opposing parties of its use” and the petition contained no

allegation of an intentional act by ACIIE or IAA. The trial court sustained the

exception but allowed the plaintiff to amend his petition within fifteen days to state

a cause of action pursuant to La.Code Civ.P. art. 934.           The plaintiff filed a First

Supplemental and Amending Petition for Damages, which reads, in pertinent part:

                                           5.
              Plaintiff avers that shortly after the serious accident of March
       15, 2008, giving rise to the instant matter the named defendants
       herein, INSURANCE AUTO AUCTIONS CORP, acting upon
       information and belief as the storage facility and/or as custodian of the
       Petitioner’s vehicle on behalf of and/or in connection with
       AUTOMOBILE CLUB INTER-INSURANCE EXCHANGE, d/b/a
       “Triple A Insurance”, insurer of Plaintiff, RICHARD L. REYNOLDS,
       both respectively failed to maintain custody and/or preserve Plaintiff’s
       vehicle despite both Defendants being on notice by Plaintiff that the
       vehicle was to be preserved as evidence for a lawsuit. Plaintiff avers
       that defendants had notice that a lawsuit was likely and was going to
       be pursued.
1
  We addressed the merits of the underlying LPLA claims against Nissan in a separate opinion.
See Reynolds v. Bordelon, 14-2371, (La. ), _So.3d_.
                                              2
                                   6.
       Plaintiff submits that the Defendants owed certain duties to
Plaintiff and are liable unto Plaintiff for their negligence resulting in
damages in the following non-exclusive manners:

      A.) Defendants owed a duty unto the Plaintiff pursuant
         to La. C.C. art. 2315, as they were respectively on
         notice to prudently preserve, maintain, and to refrain
         from any alienation or destruction of Plaintiff’s
         vehicle to be utilized in a tort claim with Defendants
         agreeing and understanding that the vehicle would be
         maintained for purposes of litigation.

      B.) Additionally, Defendants are liable unto Plaintiff as
         their negligent actions cause[d] impairment of the
         instant civil claims, as Plaintiff’s right to be free from
         interference in pursuing and/or proving his products
         liability claim is prejudiced giving rise to the loss of a
         right and opportunity of Plaintiff.

      C.) In connection with the above plead [sic] facts the
         Defendants are further and/or alternatively liable unto
         the Plaintiff for negligently spoiling the evidence as
         Defendants owed Plaintiff a special and/or specific
         duty to preserve the evidence in the following
         nonexclusive particulars:

             (i)     Pursuant to Louisiana law including
                     La. C.C. art. 2315, and

             (ii)    Pursuant     to     an     affirmative
                     agreement/undertaking           and/or
                     understanding that the evidence be
                     preserved after being put on notice of
                     necessity to preserve for litigation
                     purposes; and

             (iii)   Pursuant to a special relationship as
                     between Plaintiff and Defendants,
                     arising through and in connection
                     with the insurer, AUTOMOBILE
                     CLUB             INTER-INSURANCE
                     EXCHANGE’s,          obligations  and
                     responsibility to their insured as set
                     forth in section iv below; and

             (iv)    Pursuant to both written and verbal
                     contractual obligations to preserve the
                     vehicle and pursuant to the insurer’s
                     obligations to its insured per the
                     policy of insurance as well and/or
                     alternatively through any written
                     and/or      otherwise      documented
                                    3
                               obligation        arising       between
                               INSURANCE AUTO AUCTIONS
                               CORP, acting upon information and
                               belief as the storage facility and/or as
                               custodian of the Petitioner’s vehicle
                               on behalf of and AUTOMOBILE
                               CLUB             INTER-INSURANCE
                               EXCHANGE, insurer for Plaintiff.
                                            7.
                In connection with the above plead causes of action against
         AUTOMOBILE CLUB INTER-INSURANCE EXCHANGE and
         INSURANCE AUTO AUCTIONS CORP, Plaintiff seeks special
         damages including but not limited to past, present and future medical
         expenses, and past, present and future lost wages, as well as general
         damages for his injuries sustained including but not limited to pain
         and suffering, mental anguish and trauma, and disability, and all other
         appropriate relief including but not limited to compensatory damages
         that otherwise Plaintiff would have been able to present and prove but
         for the negligent acts of Defendants as detailed above, as Defendants’
         negligence results in serious prejudice to Plaintiff due to no fault of
         his own.

         In response, ACIIE and IAA again filed exceptions of no cause of action,

and ACIIE filed a motion for summary judgment, in the alternative. The trial court

denied the exceptions and the motion for summary judgment in light of an opinion

recently released by the First Circuit Court of Appeal, which discussed, in dicta,

the theory of “negligent spoliation.”2 The court of appeal denied writs, with one

judge on the panel noting the court “ha[d] not issued a studied opinion regarding

whether a cause of action exists for negligent spoliation of evidence.”3 This court

denied the writ application.4

         A later decision by the First Circuit Court of Appeal was released, wherein

the concept of negligent spoliation was rejected, prompting ACIIE and IAA to

renew their exceptions of no cause of action.5 Both ACIIE and IAA ultimately


2
    See Dennis v. Wiley, 90-0236 (La. App. 1 Cir. 9/11/09), 22 So.3d 189.
3
    Reynolds v. Bordelon, 10-0227,(La.App. 1 Cir. 6/23/10), _So.3d_.
4
    Reynolds v. Bordelon, 10-1719 (La. 10/29/10), 48 So.3d 285.
5
 See Clavier v. Our Lady of the Lake Hospital, Inc., 12-560 (La. App. 1 Cir. 12/28/12), 112
So.3d 881, writ denied, 13-0264 (La. 3/15/13), 109 So.3d 384.

                                                4
filed motions for summary judgment in the alternative. Based on Clavier, the trial

court sustained ACIIE and IAA’s exceptions of no cause of action. Further, the

trial court declined to give leave to the plaintiff to amend the petition, finding no

amendment could state a cause of action given the fact that the plaintiff conceded

there were no facts to support an allegation of intentional spoliation. Additionally,

the trial court denied the motions for summary judgment as moot. The court of

appeal rendered an opinion, affirming the trial court’s judgments, finding no cause

of action exists for negligent spoliation under Louisiana law.6                    We granted

certiorari to definitively rule on the viability of negligent spoliation of evidence as

a cause of action in Louisiana.7

                                     APPLICABLE LAW

          As used in the context of the peremptory exception, a “cause of action”

refers to the operative facts which give rise to the plaintiff’s right to judicially

assert the action against the defendant.8 The purpose of the peremptory exception

of no cause of action is to test the legal sufficiency of the petition by determining

whether the law affords a remedy on the facts alleged in the petition. 9 No evidence

may be introduced to support or controvert the exception of no cause of action.10

The exception is triable on the face of the pleadings, and, for purposes of resolving

the issues raised by the exception, the well-pleaded facts in the petition must be

accepted as true.11 The issue at the trial of the exception is whether, on the face of


6
     Reynolds v. Bordelon, 13-1848 (La. App. 1 Cir. 9/19/14), 154 So.3d 570.
7
     Reynolds v. Bordelon, 12-2362 (La. 2/27/15), 159 So.3d 1061.
8
  Ramey v. DeCaire, 03-1299, p. 7 (La.3/19/04), 869 So.2d 114, 118; Everything on Wheels
Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1238 (La.1993).
9
     Ramey, at 7, 869 So.2d at 118; Everything on Wheels Subaru, Inc., 616 So.2d at 1235.
10
      La. Code Civ. P. art. 931.
11
  Fink v. Bryant, 01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349; City of New Orleans v.
Board of Commissioners of Orleans Levee District, 93-0690, p. 28 (La.7/5/94), 640 So.2d 237,
253.

                                                 5
the petition, the plaintiff is legally entitled to the relief sought.12 Louisiana retains a

system of fact pleading, and mere conclusions of the plaintiff unsupported by facts

will not set forth a cause or right of action.13 The burden of demonstrating that a

petition fails to state a cause of action is upon the mover.14 Because the exception

of no cause of action raises a question of law and the trial court’s decision is based

solely on the sufficiency of the petition, review of the trial court’s ruling on an

exception of no cause of action is de novo.15 The pertinent inquiry is whether, in

the light most favorable to the plaintiff, and with every doubt resolved in the

plaintiff's favor, the petition states any valid cause of action for relief.16

                                          DISCUSSION

          The plaintiff contends the allegations contained in his petition are not limited

to the singular cause of action of negligent spoliation of evidence and that the

sufficiency of the petition should not be measured solely by the existence (or lack

thereof) of that specific tort. Rather, he avers the petition sufficiently describes

negligent conduct by ACIIE and IAA that is recoverable under claims ranging

from (1) impairment of a civil claim; (2) loss of a right or opportunity; (3)

detrimental reliance; (4) general negligence under La.Civ.Code art. 2315; and (4)

breach of contract. Thus, he argues that this court’s position on the viability of a

negligent spoliation cause of action in Louisiana is not dispositive of the issue. We

disagree with respect to his tort claims. At its heart, the petition prays for relief for

third parties’ acts of negligently destroying evidence. Whether the law recognizes

this type of relief is not a question of semantics. Rather, it is a legal inquiry that

12
     Ramey, at 7, 869 So.2d at 118.
13
     Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637 So.2d 127, 131.
14
     Ramey, at 7, 869 So.2d at 119; City of New Orleans, at 28, 640 So.2d at 253.
15
     Fink, at 4, 801 So.2d at 349; City of New Orleans, at 28, 640 So.2d at 253.
16
     Ramey, at 8, 869 So.2d at 119.


                                                   6
can only be analyzed within the framework of answering the sole issue of whether

Louisiana recognizes a claim for negligent spoliation.

          In Louisiana, the foundation of any tort lies within the context of

La.Civ.Code art. 2315, which provides, “[e]very act whatever of man that causes

damage to another obliges him by whose fault it happened to repair it.” Thus,

while “fault” is a broader term than negligence or intent, there still exists a limit as

to actual liability. Frank Maraist and Thomas Galligan, in their treatise on tort law,

explained:17

                  All theories of recovery, or categories of tort liability, are
          “fault” in Louisiana, although they represent different levels of
          blameworthiness or culpability. . . . [i]t may be helpful to imagine a
          fault line similar to a number line. . . . At the left side of this line is the
          actor who intentionally inflicts harm upon the victim. His or her
          conduct is the law’s most blameworthy category of fault. Moving to
          the right, one arrives at negligence, i.e., the actor knew or should have
          known that his conduct presented an unreasonable risk of harm to
          someone, and he or she failed to act reasonably to avoid that risk.
          This, too, is fault, and “blameworthy” conduct, although less
          “blameworthy” than the intentional tortfeasor’s act. Farther to the
          right is the actor who could not foresee that his or her conduct would
          expose another to harm, or whose conduct was reasonable under the
          circumstances. He or she is, in the eyes of the moral philosopher,
          blameless. Nevertheless, society may choose to impose the cost of the
          harm upon the blameless actor rather than upon the victim. If so, in
          Louisiana, he or she was at fault, although blameless. These places
          along the “fault” line where the nonblameworthy actor might be or
          might have been liable are vicarious liability, strict liability, and
          absolute liability. On the far right is the actor who could not foresee
          harm and/or who acted reasonably, and upon whom society does not
          place the risk of harm caused by his conduct. This person is not at
          “fault” nor blameworthy. There is simply no tort, although the
          layman may quite incorrectly call the resulting harm a mere
          “accident.”

          Jurisprudentially, this civilian concept has been more readily applied within

the same context as negligence claims made in common law jurisdictions, wherein

the analysis is subdivided into four elements: duty, breach, causation, and

damages. The duty inquiry is central to our discussion on whether Louisiana

recognizes the tort of negligent spoliation of evidence.

17
     Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort Law § 1.03 (2004).

                                                         7
          While alternatively setting forth the general negligence theory of liability,

the plaintiff asks this court to recognize the cause of action where a specific duty

arose due to an agreement, contract, special relationship, or undertaking which was

formed between the parties specifically for the purpose of preserving the evidence.

Several appellate courts in Louisiana have followed this limited application of the

tort; however, we decline to do so and expressly refuse to recognize the existence

of the tort.18 This holding applies whether under a general negligence approach or

whether the source of the duty is readily apparent. Instead, we approach the duty

element of the negligence analysis from a policy perspective.

          Maraist and Galligan explain the duty element as it relates to policy: 19

                 The general duty and the specific risk inquiries both involve
          policy decisions on issues such as deterrence of undesirable conduct,
          avoiding the deterrence of desirable conduct, compensation of
          victims, satisfaction of the community’s sense of justice, proper
          allocation of resources (including judicial resources), predictability,
          and deference to the legislative will.

          The policy considerations can compel a court to simply make a categorical

“no duty” rule regarding certain conduct.                            Examples of courts categorically

excluding liability for a specific group of claims or plaintiffs are: claims for failure

to act, injuries to unborn babies, negligent infliction of mental anguish, or purely

economic harm unaccompanied by physical trauma to the plaintiff or his

property.20 This court, in Hill v. Lundin, expanded on its role in determining

whether society is best served in recognizing a duty, and thus, a tort, stating:21


18
     See e.g., Carter v. Exide Corp., 661 So.2d 698 (La. App. 2 Cir. 1995).
19
     Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort Law § 5.02 (2004).
20
    Id. This rule of exclusion is not without its exceptions. See Pitre v. Opelousas General Hospital, 530 So.2d
1151 (La. 1988) (wherein recoverable prenatal damage claims are discussed). Moreover, the no-duty rule for failure
to act claims has its own exceptions when there is a special relationship between the non-actor and the victim, such
as common carriers and their passengers, innkeepers and their guests, employers and their injured employees, jailers
and their prisoners, teachers and their students; and parents and their children. With regard to negligent infliction of
mental distress, Louisiana law does allow “bystander” claims. Last, the categorical bar against allowing tort
damages for pure economic harm has its exceptions as well, wherein appellate courts have addressed the issue on a
case-by-case basis and within the confines of a standard negligence analysis.

Despite the exceptions, the inclusion in our analysis of the categorical barring of these types of claims and/or class
of plaintiffs is to demonstrate the ability and the authority courts have in refusing to recognize a duty to prevent
certain conduct.

                                                           8
                The same policy considerations which would motivate a
        legislative body to impose duties to protect from certain risks are
        applied by the court in making its determination. “All rules of
        conduct, irrespective of whether they are the product of a legislature
        or are a part of the fabric of the court-made law of negligence, exist
        for purposes. They are designed to protect some persons under some
        circumstances against some risks. Seldom does a rule protect every
        victim against every risk that may befall him, merely because it is
        shown that the violation of the rule played a part in producing the
        injury. The task of defining the proper reach or thrust of a rule in its
        policy aspects is one that must be undertaken by the court in each case
        as it arises. How appropriate is the rule to the facts of this
        controversy? This is a question that the court cannot escape.” Malone,
        Ruminations on Cause-In-Fact, 9 Stanford L.Rev. 60, 73 (1956).

        Having established that the duty requirement can be analyzed in terms of

policy, we turn now to those policy considerations affected by our recognition (or

rejection) of the tort of negligent spoliation of evidence. As formulated by Maraist

and Galligan and listed above, the first of these factors is “deterrence of

undesirable conduct.” We find the act of negligently spoliating evidence is so

unintentional an act that any recognition of the tort by the courts would not act to

deter future conduct, but would, rather, act to penalize a party who was not aware

of its potential wrongdoing in the first place. This is particularly true in the case of

negligent spoliation by a third party, who is not vested in the ultimate outcome of

the underlying case, and thus, has no motive to destroy or make unavailable

evidence that could tend to prove or disprove that unrelated claim. This factor

weighs in favor of a no-duty rule.

        Next, compensation of the victim is an important policy consideration. This

issue is strenuously debated nationally among those states that do recognize the

tort because damages are so highly speculative.22             Determining the expected



21
     Hill v. Lundin and Associates, 256 So. 2d 620, 623.
22
    See Smith v. Atkinson, 771 So.2d 429 (Ala. 2000), wherein the Alabama Supreme Court held
the proper measure of damages in a negligent spoliation of evidence case is the compensatory
damages that would have been awarded on the underlying cause of action, and not the
probability of success in the underlying action. Compare to Holmes v. Amerex Rent-A-Car, 710
A.2d 846, 853 (D.C. 1998), wherein the District of Columbia held the measure of damages in a
                                                 9
recovery in the underlying case---a case that was not fully adjudged on evidence

because that evidence was discarded---leaves room for substantial guess-work.

Moreover, Louisiana, as a comparative negligence jurisdiction, would also have to

factor in the likelihood of success of that underlying case since that would be the

measure of the proportional fault of the spoliator. Accordingly, the parties and the

trier of fact would be called upon to estimate the impact of the missing evidence

and guess at its ability to prove or disprove the underlying claim, resulting in

liability based far too much on speculation.          We find these hypothetical and

abstract inquires weigh against recognition of the tort of negligent spoliation.

      Another policy consideration is “satisfaction of the community’s sense of

justice.” Society’s sense of fairness is vital in determining whether a reasonable

person should have acted or not acted in a certain manner. Because the reasonable

person standard is inherent in the negligence analysis, it is prudent to ask whether

reasonable persons would expect certain behavior in certain situations and,

conversely, whether reasonable persons can be expected to be exposed to liability

in certain situations.     This question factors in squarely with another policy

consideration: predictability.     Thus, we will address these elements together.

      Recognition of the tort of negligent spoliation would place a burden on

society as a whole, causing third parties who are not even aware of litigation to

adopt retention policies for potential evidence in cases, in order to reduce their

exposure to liability. There is simply no predictability in requiring preservation

and record keeping for unknown litigation. Moreover, broadening the delictual

liability for negligent spoliation would place restrictions on the property rights of

persons, both natural and juridical, insofar as the tort would act to limit the right to

dispose of one’s own property. These policy concerns are readily apparent in the

negligent spoliation of evidence case should be compensatory damages in the underlying case
adjusted by the estimated likelihood of success in the potential civil action.


                                            10
facts before this court where ACIIE paid to the plaintiff what was owed under his

policy and received the title to the totaled vehicle. Then, IAA, in the normal course

of its business, received the vehicle and disposed of it by auctioning it to a salvage

yard for spare parts. To impose a requirement that all potential evidence be

preserved for possible future litigation would wreak havoc on an industry whose

very existence is sustained by destruction of possible subjects of litigation: totaled

vehicles. It is easy to imagine the trickle-down effect that a preservation policy

would have on insureds themselves; the longer an insurer or auction company is

required to store a vehicle, the higher the costs, and the more likely insurance

premiums would be increased to absorb those costs.             Moreover, the delay in

proceeds being remitted to the insurer at the time of the auction prevents those

funds from being immediately available to offset the total loss payout the insurer

pays to the insured. Again, this practice could result in higher costs for the public.

Thus, these two factors, societal justice and predictability, weigh heavily against

broadening the delictual obligation for negligent spoliation.

      Next, we look to the proper allocation of resources, including judicial

resources. Allowing a derivative tort invites litigation and encourages parties to

bring a new suit where the underlying suit was not successful.               Again, this

derivative litigation could open the floodgates for endless lawsuits where the loss

is speculative at best. Additionally, it could create confusion for fact-finders,

particularly juries, inasmuch as it allows a trial within a trial. For instance, triers of

fact could be presented with the facts of the underlying case and also presented

with the facts surrounding the alleged destruction of evidence, causing

inconsistency and the potential for misunderstanding. Thus, this factor does not

favor recognition of the tort.




                                           11
        Last, we are called upon to consider any deference owed to the legislature.

This court, in limiting the application of the tort of interference with contractual

relations, has previously held:23

        The framers conceived of fault as a breach of a preexisting obligation
        for which the law orders reparation, when it causes damage to
        another, and they left it to the courts to determine in each case the
        existence of an anterior obligation which would make an act constitute
        fault. 2 M. Planiol, Treatise on the Civil Law, Part 1, §§ 863–865
        (1959); Pitre v. Opelousas General Hosp., 530 So.2d 1151 (La.1988).

                                                ...

        Portalis, the leading drafter of the Code Napoleon, clearly foresaw
        that the code must constantly be applied to unexpected issues and
        circumstances:

                A code, however complete it may seem, is hardly
                finished before a thousand unexpected issues come to
                face the judge. For laws, once drafted, remain as they
                were written. Men, on the contrary, are never at rest; they
                are constantly active, and their unceasing activities, the
                effects of which are modified in many ways by
                circumstances, produce at each instant some new
                combination, some new fact, some new result.

                A host of things is thus necessarily left to the province of
                custom, the discussion of learned men, and the decision
                of judges.

                The role of legislation is to set, by taking a broad
                approach, the general propositions of the law, to establish
                principles which will be fertile in application, and not to
                get down to the details of questions which may arise in
                particular instances.

                It is for the judge and the jurist, imbued with the general
                spirit of the laws, to direct their application. A.
                Levasseur, Code Napoleon or Code Portalis? 43
                Tul.L.Rev. 762, 769 (1969) (Translation by Shael
                Herman)

        Thus, with regard to this final policy consideration before us, we find the

legislation on fault and tort law in Louisiana has left to the courts the task of


23
     9 to 5 Fashions, Inc. v. Spurney, 538 So. 2d 228, 231 (La. 1989)

                                                12
determining the viability of certain causes of action. As such, we conclude that

legislative will does not require recognition of the tort of negligent spoliation.

          Having considered all the policy factors under the duty element of the

negligence analysis in Louisiana, we reflect on one more concern: availability of

other avenues of recourse.                 California, a state that once pioneered negligent

spoliation, but subsequently reversed itself and now does not recognize the

existence of the tort, stated:24

          We do not believe that the distinction between the sanctions available
          to victims of first party and third party spoliation should lead us to
          employ the burdensome and inaccurate instrument of derivative tort
          litigation in the case of third party spoliation. We observe that to the
          extent a duty to preserve evidence is imposed by statute or regulation
          upon the third party, the Legislature or the regulatory body that has
          imposed this duty generally will possess the authority to devise an
          effective sanction for violations of that duty. To the extent third
          parties may have a contractual obligation to preserve evidence,
          contract remedies, including agreed-upon liquidated damages, may be
          available for breach of the contractual duty. Criminal sanctions, of
          course, also remain available.

                                                        ...

          In sum, we conclude that the benefits of recognizing a tort cause of
          action, in order to deter third party spoliation of evidence and
          compensate victims of such misconduct are outweighed by the burden
          to litigants, witnesses, and the judicial system that would be imposed
          by potentially endless litigation over a speculative loss, and by the
          cost to society of promoting onerous record and evidence retention
          policies.

          We adopt this logic and write separately on the issue to discuss the

alternative remedies plaintiffs can seek in Louisiana. Discovery sanctions and

criminal sanctions are available for first-party spoliators. Additionally, Louisiana

recognizes the adverse presumption against litigants who had access to evidence

and did not make it available or destroyed it. Regarding negligent spoliation by

third parties, the plaintiff who anticipates litigation can enter into a contract to

preserve the evidence and, in the event of a breach, avail himself of those

contractual remedies. Court orders for preservation are also obtainable. In this
24
     Temple Community Hosp. v. Superior Court, 20 Cal, 4th 464, 976 P.2d 223, 84 Cal. Rptr. 2d 852 (1999).

                                                        13
particular case, the plaintiff also could have retained control of his vehicle and not

released it to the insurer, thereby guaranteeing its availability for inspection.

Furthermore, he could have bought the vehicle back from the insurer for a nominal

fee. Thus, we find the existence of alternate avenues for recovery further support

our holding.

                                       CONCLUSION

      Our review of the policy considerations lead us to conclude that Louisiana

law does not recognize a duty to preserve evidence in the context of negligent

spoliation.    In the absence of a duty owed, we find there is no fault under

La.Civ.Code art. 2315 or under any other delictual theory in Louisiana.

Furthermore, the presence of alternate remedies supports our holding that there is

no tort of negligent spoliation of evidence. Accordingly, we agree with the lower

courts that there is no cause of action for this tort.

      However, we are tasked with evaluating the petition to determine whether it

states any valid cause of action for relief. We find the petition alleges sufficient

facts to support a breach of contract cause of action.        Thus, we reverse the

judgment that granted the exception of no cause of action and remand to the trial

court for consideration of the contract claim. We offer no opinion as to the

ultimate success of this cause of action or to any defense thereto.

REVERSED AND REMANDED.




                                            14
06/30/15

                   SUPREME COURT OF LOUISIANA


                                 NO. 2014-C-2362

                           RICHARD L. REYNOLDS

                                     VERSUS

ROBERT J. BORDELON III, ROBERT J. BORDELON JR., USAGENCIES
     CASUALTY INSURANCE COMPANY, AUTOMOBILE CLUB
  INTER-INSURANCE EXCHANGE, AND/OR AUTO CLUB FAMILY
   INSURANCE COMPANY D/B/A TRIPLE A INSURANCE, NISSAN
    NORTH AMERICA, INFINITY DIVISION OF NISSAN NORTH
 AMERICA, INC., A LUXURY CAR DIVISION OF NISSAN MOTORS,
INSURANCE AUTO AUCTIONS CORP., ABC INSURANCE COMPANY,
              DEF INSURANCE COMPANY AND
                 XYZ INSURANCE COMPANY

                            CONSOLIDATED WITH

    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
             AS SUBROGEE OF/AND LINDA DUPUY

                                     VERSUS

                     ROBERT BORDELON AND
               USAGENCIES CASUALTY INSURANCE COM



  ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT,
                    PARISH OF ST. TAMMANY


WEIMER, J., additionally concurring.

      I subscribe to the majority’s opinion. I write separately to emphasize the

legislative source of public policy which forms the basis of this court’s analysis of

negligent spoliation.
         In a civil law system, the role of the judiciary is to evaluate statutory

authority in determining either to impose or not impose a duty.1 The plaintiff has

not pointed to any statutory authority, nor has statutory authority been found, to

establish a general duty for a third party to retain property which may be the

subject of litigation.

         Although La. C.C. art. 2315, the fountainhead of tort liability, contains

broad terms, none of those terms directly addresses negligent spoliation.

However, the legislature further authorizes courts, when the legislature has not

spoken directly on a matter, to turn to custom for a solution.2 Failing to find a

solution from custom, courts are then authorized by the legislature to “proceed

according to equity. To decide equitably, resort is made to justice, reason, and

prevailing usage.”3

         In the present case, this court’s analysis has applied these codal principles

within the concept of making a policy determination. It is only where the

legislature has not spoken and there is no custom, or the legislature has deferred to

the judiciary that we are authorized to resort to equity for discerning policy. Thus,

I respectfully concur.




1
 See La. C.C. art. 1 (“The sources of law are legislation and custom”); La. C.C. art. 3 (“Custom may
not abrogate legislation.”).
2
    See La. C.C. art. 3.
3
    La. C.C. art. 4.

                                                 2
06/30/15

                      SUPREME COURT OF LOUISIANA

                                NO. 2014-C-2362

                           RICHARD L. REYNOLDS

                                     VERSUS

   ROBERT J. BORDELON III, ROBERT J. BORDELON JR., USAGENCIES
    CASUALTY INSURANCE COMPANY, AUTOMOBILE CLUB INTER-
  INSURANCE EXCHANGE, AND/OR AUTO CLUB FAMILY INSURANCE
   COMPANY D/B/A TRIPLE A INSURANCE, NISSAN NORTH AMERICA,
INFINITY DIVISION OF NISSAN NORTH AMERICA, INC., A LUXURY CAR
 DIVISION OF NISSAN MOTORS, INSURANCE AUTO AUCTIONS CORP.,
     ABC INSURANCE COMPANY, DEF INSURANCE COMPANY AND
                   XYZ INSURANCE COMPANY

                            CONSOLIDATED WITH

     STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
              AS SUBROGEE OF/AND LINDA DUPUY

                                     VERSUS

                      ROBERT BORDELON AND
             USAGENCIES CASUALTY INSURANCE COMPANY

           ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
               FIRST CIRCUIT, PARISH OF ST. TAMMANY


CRICHTON, J., additionally concurs and assigns reasons:

      I agree completely with the majority decision and join in both its reasoning

and result. I write separately to emphasize that this Court’s recognition of a

negligent spoliation tort would create significant, and unnecessary, burdens on the

legal system.   Permitting parties to bring negligent spoliation claims would

“inundate our justice system” with derivative tort litigation, see Temple Community

Hospital v. Superior Court, 976 P.2d 223, 228 (Cal. 1999), and, as my colleague

Justice Clark points out in the majority opinion, “wreak havoc” on the individuals

and entities impacted and the judicial system as a whole.
