When a Colorado man died after using a gas-powered concrete saw rented from Home Depot, his estate commenced a lawsuit. Despite being instructed to retain and preserve the subject saw, Home Depot sold it and now faces potential sanctions as a result. This case highlights the importance of spoliation orders as well as the potential risks parties face if they violate such orders.

Background

On May 6, 2020, Sidney King (“Mr. King”) rented a Hilti PRO Gas Concrete Saw from a Home Depot store in Denver, Colorado for use at his business.[i]  According to the complaint, Mr. King used the saw prudently, was working in a well-ventilated area with a ventilation face mask on, and took breaks every forty minutes to refill the water tank used to minimize the emission of concrete dust.[ii]  After operating the saw for two hours, Mr. King became drowsy and lethargic and proceeded to drink a 24-ounce water bottle.[iii]  One minute later, Mr. King began projectile vomiting.[iv]  Shortly thereafter, Mr. King was found clutching his arms and chest.[v]  Emergency services were called, and the ambulance arrived within five minutes.[vi]  Unfortunately, Mr. King died while being transported to the hospital from “hypertensive and atherosclerotic cardiovascular disease complicated by the toxic effects of carbon monoxide.”[vii]

Mr. King’s son returned the saw later that day and verbally told the store manager not to get rid of the equipment because someone died using it and it needed to be investigated.[viii]  Home Depot and its third-party claims administrator were made aware of the incident later that month and were notified of the need to preserve the saw for litigation on August 7, 2020.[ix]  However, in September 2020 an adjuster with the third-party claims administrator informed counsel for the plaintiff estate that Home Depot sold the saw to a private individual in September 2020, and attempts to reach the individual had gone unanswered.[x]

Plaintiff filed a Complaint in state court on April 7, 2022.  In addition to claims for wrongful death and negligent maintenance, Plaintiff alleged a claim for spoliation of evidence, asserting Home Depot sold the saw with the box and all of its contents long before the expiration of the statute of limitations, “with actual knowledge that there was a death that occurred with the use of the saw.”[xi]  Home Depot successfully removed the case to federal court a few weeks later based on diversity jurisdiction.

Plaintiff’s Motion for Sanctions

On April 6, 2023, Plaintiff filed a Motion for Sanctions for Spoliation of Evidence (the “Motion”).  Plaintiff argued the saw is the most relevant and material piece of evidence needed to decide the issues of the case.[xii]  Plaintiff also asserted as a result of Home Depot’s conduct, its expert would not be able to examine the saw to evaluate “whether the operating characteristics of the saw were within acceptable parameters [or] whether the output of CO was a causal factor in [Mr. King’s] death.”[xiii]  Plaintiff asserted Home Depot willfully destroyed the saw with knowledge of Mr. King’s death, warranting sanctions, and requested the jury be instructed it may reasonably infer that because the saw was sold, the saw was negligently maintained and caused the death of Mr. King.[xiv]

Home Depot’s Response

Home Depot responded in opposition to the Motion and argued the circumstances for imposing sanctions were not present in this case.[xv]  First, Home Depot claimed Mr. King ignored at least five written and oral warnings to not operate the saw indoors, pointing to warnings in the rental contract, the operation and safety guide, the operating manual, and in written instructions provided by Home Depot.[xvi]  Next, Home Depot asserted it had no reason to believe the saw functioned abnormally in Mr. King’s possession, emphasizing a clause in the rental contract which read the renter “…will inspect the Equipment to confirm that it is in good condition, without defects and is suitable for [his] intended use[.]”[xvii]  Once the saw was returned, an employee tested it and confirmed it was working properly.[xviii]  Home Depot also denied being told there was any issue with the saw at the time it was returned.[xix]

Home Depot concedes its third-party claims administrator was contacted by an attorney over the phone regarding the incident on June 17, 2020, and August 7, 2020.[xx]  However, Home Depot explained both times the third-party administrator asked for a written letter of representation, but one was not received until April 19, 2021.[xxi]  Home Depot sold the saw on September 10, 2020.[xxii]  Home Depot confirmed the original purchaser still owns the saw, has been in contact with him, and expects efforts to reacquire the saw will be successful.[xxiii]

Home Depot’s motion first attacked plaintiff’s reliance on Colorado state law in the argument of the motion, correctly asserting that federal law is the governing standard for issuing sanctions in diversity cases.[xxiv]  Next, Home Depot argued plaintiff had not established a duty to preserve the saw, that plaintiff had been prejudiced by the sale of the saw, or that Home Depot acted in bad faith, and thus, plaintiff had not met the required standard for spoliation sanctions in the Tenth Circuit.[xxv]  Home Depot asked the Court to deny plaintiff’s motion for sanctions based on plaintiff’s failure to show bad faith sufficient to justify an adverse inference instruction to the jury or to show that spoilation sanctions of any sort were warranted.[xxvi]

Takeaway

The court has not yet ruled on the Motion, but attorneys, defendants, and insurers can take away important lessons from the sequence of events thus far.  First, if there is any indication that a piece of evidence was involved in an accident and should be preserved for litigation, every effort should be made to do so.  The danger of an adverse inference instruction to the jury is too great a risk to take if  avoidable.  Second, attorneys must be cognizant of the applicable governing legal standard when practicing in federal court.  Failure to use proper authority undercuts the legitimacy of a motion before the argument is even made.  Finally, if evidence was not properly preserved but there is a chance it can be recovered, defendants and insurers should make every effort to recover the lost evidence to combat claims of bad faith and exhibit effort to remedy their mistake.

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Sources

[i] See Complaint, 2022CV30969, Anthea King o/b/o the Estate of Sidney King v. Home Depot, Inc., et al. (Apr. 7, 2022), at ¶¶ 8, 10.

[ii] Id. at ¶ 13.

[iii] Id. at ¶¶ 14-15.

[iv] Id. at ¶ 16.

[v] Id. at ¶¶ 17-18.

[vi] Id. at ¶¶ 19.

[vii] Id. at ¶¶ 20-21.

[viii] Id. at ¶¶ 22-23.

[ix] Id. at ¶¶ 24-26.

[x] Id. at ¶ 27.

[xi] Id. at ¶ 32.

[xii] Plaintiff’s Motion for Sanctions for Spoliation of Evidence, Document 39, Case No. 1:22-cv-01050-PAB-SP (Apr. 6, 2023), at 7.

[xiii] Id. at 7-8.

[xiv] Id. at 9-14.

[xv] See generally Defendant’s Response in Opposition to Plaintiff’s Motion for Sanctions for Spoliation of Evidence, Document 43, Case No. 1:22-cv-01050-PAB-SP (Apr. 27, 2023).

[xvi] Id. at 1-3.

[xvii] Id. at 3.

[xviii] Id. at 4.

[xix] Id.

[xx] Id. at 4-5.

[xxi] Id. at 5.

[xxii] Id.

[xxiii] Id.

[xxiv] Id.

[xxv] Id. at 7.

[xxvi] Id. at 17.