                           THIRD DIVISION
                            MILLER, P. J.,
                      MCFADDEN and MCMILLIAN, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                  November 9, 2016




In the Court of Appeals of Georgia
 A16A1219. COOPER TIRE & RUBBER COMPANY v. KOCH et al.

      MCMILLIAN, Judge.

      Plaintiff/appellee Renee Koch (“Plaintiff”), individually and as the

administrator of the estate of her deceased husband Gerald Raymond Koch (“Mr.

Koch”), filed a complaint for damages based on negligent design/manufacture, strict

liability, and failure to warn against appellant Cooper Tire & Rubber Company

(“Cooper Tire”) and others, alleging that her husband suffered fatal injuries in a

single vehicle crash caused by a catastrophic tire tread separation. After it was

revealed during discovery that Plaintiff had preserved only the “carcass” of the tire

that blew out and had allowed remnants of the detached tread, the wheel on which the

tire was mounted, the three companion tires, and the vehicle to be destroyed, Cooper

Tire moved to dismiss the complaint or, alternatively, to bar certain evidence as a
sanction for spoliation of evidence. The trial court denied the motion but issued a

certificate of immediate review, and Cooper Tire filed an application for interlocutory

appeal in this Court, which we granted. As more fully set forth below, we now affirm.

      The facts pertinent to this appeal are largely undisputed. On April 24, 2012,

Gerald Koch was driving eastbound on Interstate 16 in his 2000 Ford Explorer when

the tread on his left rear tire detached. According to the State of Georgia Traffic

Crash Report, the Explorer then swerved out of control and traveled approximately

79 feet before striking a guardrail. The vehicle continued to travel in an easterly

direction for approximately 134 feet, overturning several times before coming to an

“uncontrolled” final rest in the eastbound ditch facing west.

      Mr. Koch suffered serious injuries in the accident and was transported by

emergency vehicle to the Medical Center of Central Georgia (“MCCG”). He was

immediately taken to surgery and then to the intensive care unit, where he remained

uncommunicative for several days. However, Mr. Koch eventually regained

consciousness and was able to talk to his wife about the accident, telling her that the

accident occurred when the “tire blew and the car flipped and rolled three or four

times.” Unfortunately, Mr. Koch was unable to recover from his extensive injuries,



                                          2
and he died on June 3, 2012 without ever having left the intensive care unit of the

hospital.

       The Ford Explorer was towed from the accident scene by Brown’s Wrecker

Service (“Wrecker Service”), where it was placed in a storage yard. Sometime after

the accident but before Mr. Koch died, Plaintiff talked to the owner of the Wrecker

Service, Edwin Brown, who explained to her that she was being charged a daily

storage fee for the vehicle. Plaintiff told Brown she could not afford to pay the

storage costs, and he told her that he would not bill her for storage costs if she would

transfer the title to him so he could sell the vehicle to a salvage yard where it would

be crushed for scrap. Plaintiff said that she did not see any reason to keep the vehicle

since it was totaled, so she agreed to transfer the title instead of paying for the vehicle

to be stored. However, at some point prior to transferring the title, Plaintiff talked it

over with her husband, who told her to tell the Wrecker Service to “save the tires.”1

After instructing Brown to save the left rear tire, Plaintiff relinquished control of the




       1
        There is some question in this case concerning whether the Mr. Koch directed
Plaintiff to save the “tire” or the “tires.”

                                            3
vehicle. Brown then stored the tire,2 and the vehicle and companion tires were

crushed for scrap.

      Several weeks after Mr. Koch died, his daughter contacted an attorney in her

home state of Missouri. The Missouri attorney contacted the Wrecker Service

concerning the preservation of the tire and also recommended the daughter contact

an attorney in Georgia. Shortly thereafter, Plaintiff retained Georgia counsel, and her

attorney retrieved the tire from the Wrecker Service on or about September 26, 2012.

      Plaintiff filed suit on March 6, 2014, alleging that Cooper Tire’s defectively

designed and/or manufactured tire caused the fatal crash. Cooper Tire subsequently

moved to dismiss the complaint or, in the alternative, to bar Plaintiff from presenting

evidence to rebut its defenses, arguing that it had suffered irreversible prejudice in

presenting its defense as a result of Plaintiff’s spoliation of relevant evidence. The

trial court denied the motion, finding that, “[v]iewing the evidence from the

perspective of the party having control over the subject vehicle, this Court does not

find that the facts and circumstances give rise to litigation being reasonably



      2
        The record suggests that the tread was never recovered from the accident
scene. In any event, basically all that was saved from the vehicle was the sidewall
portion of the tire that attaches to the rim.

                                          4
foreseeable or that it should have been reasonably contemplated by the Plaintiff so

as to trigger the duty to preserve the subject vehicle.”

      On appeal, Cooper Tire argues that the trial court erred by focusing on whether

the Plaintiff subjectively knew that litigation was likely at the time she allowed the

vehicle and companion tires to be destroyed, and instead should have applied the

objective standard established by our Supreme Court in Phillips v. Harmon, 297 Ga.

386, 397 (II) (774 SE2d 596) (2015) to determine whether, applying the factors listed

in Phillips, Plaintiff knew or should have known that the evidence should be

preserved for litigation. Cooper Tire consequently argues that because the trial court

applied the wrong legal standard in determining Plaintiff’s duty in this case, we must

review its decision under a de novo standard of review, rather than the abuse of

discretion standard generally applicable to trial court rulings on spoliation issues.

      The standard of review on appeal is well settled. A trial court has wide

discretion in resolving spoliation issues, and “such discretion will not be disturbed

absent abuse.” Phillips, 297 Ga. at 397 (II). “However, an appellate court cannot

affirm a trial court’s reasoning which is based upon an erroneous legal theory.” Id.

Thus, this Court must first consider the proper analysis to be used in determining



                                          5
whether Plaintiff spoliated and then whether the trial court correctly applied the

analysis.

      “Spoliation” refers to the destruction, failure to preserve, or material alteration

of evidence that is relevant to “contemplated or pending litigation.” Phillips, 297 Ga.

at 393 (II); Silman v. Assoc. Bellemeade, 286 Ga. 27, 28 (685 SE2d 277) (2009).

Because the spoliation of evidence may give rise to sanctions against the spoliator,

including dismissal of the complaint, an initial determination must be made that the

spoliator had a duty to preserve the evidence at the time it was destroyed. Whitfield

v. Tequila Mexican Restaurant No. 1, 323 Ga. App. 801, 807 (6) (748 SE2d 281)

(2013) (“A spoliation claim cannot be pursued unless the spoliating party was under

a duty to preserve the evidence.”), overruled on other grounds, Phillips, 297 Ga. at

398 (II).

             Logically, the duty to preserve relevant evidence must be
             viewed from the perspective of the party with control of the
             evidence and is triggered not only when litigation is
             pending but when it is reasonably foreseeable to that party.
             See Graff v. Baja Marine Corp., 310 Fed. Appx. 298, 301
             (11th Cir. 2009); West v. Goodyear Tire & Rubber Co., 167
             F3d 776, 779 (2d Cir. 1999).


Phillips, 297 Ga. at 396 (II).

                                           6
      In Phillips, our Supreme Court overruled a long line of precedent from this

Court in which we had held that a defendant’s duty to preserve arises only when the

plaintiff’s actions have provided the defendant with actual or express notice that the

plaintiff is contemplating litigation. Phillips enunciated two concepts on the issue of

notice: (1) notice may be actual or constructive and (2) “the defendant’s actions may

be relevant to that determination because such activity may be an “expression by the

defendant that it was acting in anticipation of litigation.” (Footnote omitted; emphasis

supplied.) Phillips, 297 Ga. at 396-97 (II). Additionally, the Court went on to point

to other circumstances from which “[n]otice that the plaintiff is contemplating

litigation may also be derived from, i.e., litigation may be reasonably foreseeable to

the defendant based on, . . . the type and extent of the injury; the extent to which fault

for the injury is clear; the potential for financial exposure if faced with a finding of

liability; the relationship and course of conduct between the parties[;] and the

frequency with which litigation occurs in similar circumstances.” Id. at 397 (II).

      However, and understandably since it was only the defendant hospital’s duty

that was at issue, the Court in Phillips did not dwell on a plaintiff’s duty, stating only

that “[i]n regard to the injured party, usually the plaintiff, the duty arises when that

party contemplates litigation, inasmuch as litigation is obviously foreseeable to the

                                            7
plaintiff at that point” and generally that “the duty to preserve relevant evidence

arises when litigation is reasonably foreseeable to the party in control of that

evidence.” 297 Ga. at 396 & 397 (II). Thus, as Cooper Tire acknowledges, the Court

in Phillips did not expressly address how the objective “reasonably foreseeable” test

set out in Phillips should be applied when it is the plaintiff who has failed to preserve

evidence and did not address whether the concept of “constructive notice” applies to

a plaintiff who is alleged to have spoliated. Relying on federal case law and cases

from other states, however, Cooper Tire argues that the inquiry should be the same

whether it is the plaintiff or the defendant who is alleged to have destroyed relevant

evidence, and that the answer to the question of whether a party anticipated or

contemplated litigation at the time they allegedly spoliated relevant evidence should

be answered by applying the objective list of factors set out in Phillips to determine

if they knew or reasonably should have known that a lawsuit might be filed. Applying

those factors here, Cooper Tire argues that the “circumstances of the accident and the

. . . decision to retain the [blown] tire objectively establishes a duty to preserve all the

material evidence.”

       As an initial matter, we do not agree that the Court in Phillips intended that the

list of factors from which it might be derived that a party constructively knew it

                                             8
should anticipate a lawsuit was intended to be applied in every case to either party.

Rather, the Court made it clear that as a general rule, the duty to preserve relevant

evidence arises when litigation is reasonably foreseeable to the party in control of the

evidence, no matter whether that party is the plaintiff or defendant. Phillips, 297 Ga.

at 396 & 397 (II). With respect to plaintiffs, the Court further noted that the duty

arises when that party actually contemplates litigation because litigation is “obviously

forseeable to the plaintiff at that point.” Id. at 396 (II). On the other hand, opposing

parties have the duty to preserve evidence when they know or reasonably should

know that the injured party is in fact contemplating litigation, which the Phillips court

noted has generally been referred to in terms of “notice” to the defendant. Id. It is in

the context of how to determine “notice” to the defendant that the Court elucidated

the factors that Cooper now asks the Court to apply to the question of whether

litigation is reasonably foreseeable to the plaintiff. But the issue of whether litigation

was reasonably foreseeable to the plaintiff is separate and distinct from whether a

defendant actually or reasonably should have foreseen litigation by the plaintiff, and

thus we do not believe that the Supreme Court intended those specific factors to apply

in determining whether litigation was reasonably foreseeable to the plaintiff.



                                            9
      That is not to say, however, that the test is a subjective one for an allegedly

spoliating plaintiff. To the contrary, the Supreme Court made it clear that reasonable

foreseeability is the touchstone for determining whether a plaintiff was contemplating

litigation, and that test has traditionally been described with objective and subjective

components – what a reasonable person in the same circumstances as those in which

the injured party has found himself would do. See Forshee v. Employers Mut. Cas.

Co., 309 Ga. App. 621, 624 (711 SE2d 28) (2011).3 Moreover, in Phillips, the Court

made it clear that in determining whether a defendant had constructive notice – an

objective standard – trial courts may appropriately consider the conduct of the

particular defendant after the injury, including any expressions by the defendant that

it was acting in anticipation of litigation. Likewise, the Court clarified that a

defendant’s duty does not arise merely from investigating an incident that caused an

injury, “because there may be many reasons to investigate incidents causing injuries,

from simple curiosity to quality assurance to preparation for possible litigation.”

Phillips, 297 Ga. at 397 (II), n.9. Thus, in applying the “reasonably foreseeable” test,

it may be appropriate for trial courts to consider similar factors as those described by

      3
        In Forshee, the Court warned about the “distorting effects of hindsight” in
making this evaluation, and we believe that those cautions apply equally in this
context. 309 Ga. App. at 624 n.2.

                                          10
the Supreme Court in Phillips to determine whether an injured party in that position

reasonably should have foreseen litigation at the time the relevant evidence was

destroyed.

      Having determined the appropriate analysis for an allegedly spoliating injured

party, we now turn to whether the trial court applied the correct legal concepts in

denying Cooper’s spoliation motion. We first note that the trial court explicitly relied

on Phillips and set out the principles enunciated therein. Cooper takes issue with the

trial court’s subsequent analysis of the facts, including its reliance on testimony from

Plaintiff about what Mr. Koch intended when he asked her to save the left rear tire

and why she decided to transfer the vehicle to Brown, asserting that it is improper

under Phillips for the trial court to have viewed Plaintiff’s testimony “from her

perspective,” instead of a wholly objective reasonable person. We discern no error,

however, in considering this testimony in determining whether Plaintiff was actually

contemplating litigation or whether litigation was reasonably foreseeable to someone

in Plaintiff’s position at the time. And it is clear that the trial court considered and

found that under the facts and circumstances of the case, litigation was not

“reasonably foreseeable or that it should have been reasonably contemplated by the

Plaintiff so as to trigger the duty to preserve the subject vehicle.”

                                          11
        Because the trial court applied the correct legal theory, the question then is

whether the trial court abused its discretion in denying the spoliation motion. As the

trial court’s factual findings are amply supported by the record, we find no abuse of

discretion.4

        Judgment affirmed. McFadden, J., concurs. Miller, P. J., concurs in judgment

only.




        4
        Nothing in this opinion, however, should be construed to mean that the
circumstances under which the tire was saved and the remainder of the vehicle was
destroyed is irrelevant or immaterial to Cooper’s defense of this case.

                                          12
