This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Timothy Dodd, et al.,
Filed June 1, 2004
Hennepin County District Court
File No. MP 02-10380
Richard Baldwin, 500 Degree of Honor Building, 325 Cedar Street, St. Paul, MN 55101 (for appellant)
Kay Nord Hunt, Phillip A. Cole, Lommen, Nelson, Cole & Stageberg, P.A., 1800 IDS Center, 80 South 8th Street, Minneapolis, MN 55402 (for respondents)
Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Huspeni, Judge.
Appellant challenges the district court’s grant of summary judgment to respondents on appellant’s legal malpractice claim and the denial of appellant’s motion for sanctions based on spoliation of evidence. Because we conclude that appellant has failed to establish all four elements of his legal malpractice claim, and that the district court did not abuse its discretion in failing to impose spoliation sanctions, we affirm.
On October 18, 1997, at approximately 2:00 a.m., appellant Samuel Spaise left a bar in River Falls, Wisconsin, to attend a party outside of town. Shortly after arriving, appellant became upset with his girlfriend and asked an acquaintance, Michael House, for a ride home. At approximately 3:00 a.m., within a mile of the party, House’s 1987 Plymouth Reliant (the Plymouth) left the road and overturned on an embankment, eventually hitting a tree and landing upside down. Appellant was seated in the front passenger seat of the vehicle, and there is conflicting evidence as to whether or not he was wearing a seat belt. Hunters discovered the Plymouth, with appellant and House still inside, at approximately 9:30 a.m. When emergency personnel arrived, they discovered that House had died in the accident. Appellant survived, but sustained severe injuries that left him with partial quadriplegia. Reconstruction of the accident by the sheriff’s department suggested driver inattention and possible driver impairment as factors in the crash. A postmortem blood test indicated that House had a .209 alcohol concentration at the time of the accident.
On October 29, 1997, appellant retained respondent Timothy Dodd and his former law firm, respondent Davis, Dodd, Levin and Miller, Ltd., to represent him on any claims arising from the accident. Dodd first secured uninsured motorist and no-fault benefits for appellant from American Family Insurance Company, and then contemplated other means of recovery. Dodd initially considered a dramshop action, but later determined that such an action was not available under Wisconsin law. In March 1998, Dodd contacted a Wisconsin attorney, Lisa Drill, about the viability of a road design case against the municipality, but she informed him that the liability limit would be $50,000. Drill then suggested the possibility of a crashworthiness case against Chrysler, the manufacturer of the Plymouth, and suggested that Dodd “consider preserving the vehicle if it is still intact and available.”
Early in his representation, Dodd spoke with House’s mother, Patricia House, who informed him that she believed that the Plymouth had been “junked.” Dodd made no other inquiries about the status of the vehicle. Connie Spaise, appellant’s aunt, testified that Dodd told her in March 1998 that the Plymouth had been “destroyed, junked,” but not to worry because “we have pictures, so we’re okay.” In April 1998, Dodd put Chrysler on notice of appellant’s intent to bring a product liability claim against them.
In exploring the possibility of a product liability claim against Chrysler, Dodd contacted Mariusz Ziejewski, Ph.D., an associate professor of mechanical engineering at North Dakota State University. Ziejewski informed Dodd that for $4,000, he could do a computerized analysis of a model vehicle and offer an opinion about whether or not there was a design defect. The actual Plymouth was not needed for this analysis. But Dodd’s firm was unwilling to advance such a large amount of money for the expert, and consequently, appellant never formally retained Ziejewski’s services.
The Spaise family concedes that they understood from the beginning that Dodd would not undertake a case such as this one alone. According to Marcia Spaise, appellant’s mother, Dodd informed her early in the representation that product liability was not his area of expertise, and that experienced co-counsel would be needed. In June 1999, appellant contacted the Minneapolis firm Fetterly & Gordon about a “possible referral or association with [their] firm with respect to a crashworthiness claim against Chrysler.” But Fetterly & Gordon declined involvement due to a conflict of interest. Dodd then contacted James Murphy of Murphy, Gillick, Wicht & Prachthauser, located in Milwaukee, WI, but he also declined involvement due to the “difficulty in establishing a causal connection between any alleged defects in the car and [appellant’s] physical injuries.”
In February 2000, appellant discharged respondents as his legal counsel. According to appellant, he did so because he felt Dodd was preoccupied with the dissolution of his firm and with some personal problems. At the time of the discharge, it is undisputed that no attorney had been located to assist in or take over the case. Thereafter, appellant continued searching for counsel willing to pursue his product liability case. He first contacted the law office of John Cabaniss, but Cabaniss declined representation due to the substantial cost of pursuing this type of action. Appellant then contacted Mike Snyder of Meshbesher & Spence, Ltd., who in turn contacted James Gilbert of Gilbert, Frank, Ollanik & Komyatte, P.C. Gilbert opined there was little likelihood of success in a product liability case against Chrysler given the circumstances of the accident. Snyder subsequently informed appellant that he was unwilling to accept representation, stating that “no vehicle can be manufactured in such a way to have withstood the October 18, 1997 crash.” No lawsuit was ever filed against Chrysler.
Despite the alleged misrepresentations about the availability of House’s vehicle, the Plymouth remained at the St. Croix County Sheriff’s impound lot until September 7, 1999. The vehicle was then released to Paul Pederstuen, the salvage yard manager at Jerry Wilkins, Inc. On January 21, 2000, Jerry Wilkins, Inc. acquired ownership of the Plymouth, and the vehicle remained intact until August 21, 2000, when Pederstuen drained the fluids, removed the tires, and placed it on a pile of vehicles waiting to be crushed. The Plymouth was crushed in mid-June 2001.
In May 2002, appellant commenced a legal malpractice suit against respondents, based on Dodd’s alleged misrepresentations that the Plymouth was destroyed and his failure to take steps to preserve the vehicle. In December 2002, appellant moved the district court for sanctions based on spoliation of evidence and sought a declaration that respondents were negligent in failing to preserve the vehicle. Specifically, appellant urged the court to relieve him of the burden of proving that a defect in the Plymouth caused the accident, instead requesting that the burden shift to respondents to prove that a defect in the Plymouth did not cause the accident. In response, respondents asserted that there had not been spoliation of evidence as that term is understood in Minnesota, and argued that summary judgment in their favor was warranted.
The district court denied appellant’s motion, stating that sanctions were not appropriate because (1) appellant discharged Dodd more than a year before the Plymouth was destroyed, and therefore the spoliation did not occur during Dodd’s representation, and (2) Dodd did not have control or possession of the evidence prior to its destruction. The court declined to grant summary judgment in respondents’ favor for procedural reasons.
A month later, respondents formally moved for summary judgment on appellant’s legal malpractice claim, arguing that the action should be dismissed because appellant had failed to submit evidence that a defect in the Plymouth either caused the accident or exacerbated his injuries. The district court agreed, and in the memorandum accompanying its award of summary judgment to respondents stated:
In denying [appellant’s] earlier motion for sanctions, the Court declined to enter summary judgment in [respondents’] favor in order to allow [appellant] an opportunity to present evidence that a defect in the Plymouth either caused the accident or exacerbated his injuries. Instead of presenting such evidence, [appellant] asks the Court to reconsider its ruling on his motion for sanctions, thus apparently conceding he has no evidence that a defect in the Plymouth either caused the accident or exacerbated his injuries.
Concluding that appellant had failed to establish the fourth element of his legal malpractice claim – that he would have prevailed in a product liability action against Chrysler but for Dodd’s conduct – the court granted summary judgment in respondents’ favor.
Additionally, the district court expanded on its earlier denial of spoliation sanctions against Dodd, noting that two experienced product liability attorneys had “questioned the viability of a crashworthiness claim in light of the force of the collision between the Plymouth and the tree.” The court also recognized that while the Plymouth was not needed to pursue a design defect claim, destruction of the Plymouth could be detrimental to a manufacturing defect claim. Nonetheless, the district court stated that
it strains credulity to believe that a manufacturing defect in a vehicle more than a decade old and with no reported defects caused an accident on a dark and windy rural road where the driver had spent hours at the bar and tested for a blood alcohol level more than twice the legal limit. That the sanctions sought by [appellant] would create a highly improbable presumption is another reason for not imposing spoliation sanctions on Dodd.
This appeal follows.
Appellant challenges both the district court’s order denying sanctions for spoliation of evidence and the court’s subsequent order awarding summary judgment to respondents. The district court has broad authority in determining what, if any, sanction is to be imposed for spoliation of evidence, and we will not reverse the court’s decision absent an abuse of that discretion. Patton v. Newmar Corp., 538 N.W.2d 116, 119 (Minn. 1995). Furthermore, on appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). Summary judgment is proper when the pleadings, depositions, interrogatory answers, admissions, and affidavits “show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. We view the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). A genuine issue of material fact exists when the nonmoving party presents evidence that creates a doubt as to a factual issue that is “probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).
Appellant argues that the district court erred in granting summary judgment to respondents, thereby dismissing his legal malpractice action. To prevail in a legal malpractice action, a plaintiff must establish four elements: “(1) the existence of an attorney-client relationship; (2) acts constituting negligence or breach of contract; (3) that such acts were the proximate cause of the plaintiff’s damages; [and] (4) that but for defendant’s conduct the plaintiff would have been successful in the prosecution or defense of the action.” Noske v. Friedberg, 670 N.W.2d 740, 742-43 (Minn. 2003) (quoting Blue Water Corp. v. O’Toole, 336 N.W.2d 279, 281 (Minn. 1983)). “[F]ailure of proof as to any one of the enumerated [legal malpractice] elements defeats recovery.” Godbout v. Norton, 262 N.W.2d 374, 376 (Minn. 1977).
A. Attorney-client relationship.
Appellant signed a formal retainer agreement with respondents on October 29, 1997, and Dodd continued to actively represent appellant until appellant discharged him in February 2000. Therefore, we conclude that appellant met the burden of establishing the first element of his legal malpractice claim.
B. Acts constituting negligence.
Appellant argues that Dodd committed acts constituting negligence, including (1) failing to “investigate, secure, preserve, and protect the automobile which would have been the subject matter of the product liability action” and (2) misrepresenting the facts concerning the vehicle to “his clients, to his clients’ representatives, to an expert, and subsequent attorneys.”
1. Failure to preserve the vehicle.
To support his argument that Dodd was negligent in failing to preserve the vehicle, appellant submitted the affidavit of his expert, who opined that
I believe it is fundamental for an attorney representing a plaintiff in a product liability case to take steps to locate, preserve and secure the evidence establishing the product defect, which typically means the product itself. . . . [I]t is my opinion that Mr. Dodd violated this fundamental obligation and was negligent.
This logic fails for at least two reasons. First, appellant’s expert ignores the fact that Dodd never represented appellant in a product liability case, nor did he ever purport to. Marcia Spaise, appellant’s mother, testified that Dodd told her upfront that product liability was not his area of expertise, and that he would look for another lawyer to pursue the case. Marcia Spaise also testified that she understood from the beginning that Dodd would not alone undertake a case of this character. Yet it is undisputed that as of appellant’s discharge of Dodd in February 2000, no attorney had been located to assist in or take over the case. Appellant admits that had he not discharged Dodd, he would have expected him to continue looking for another lawyer to handle the product liability case, but that as of February 2000, he considered Dodd to be relieved of all responsibilities regarding his case. Therefore, because Dodd never purported to represent Dodd in a product liability case, and because, long before any statute of limitations concerns arose, he was discharged from any further responsibility to contact another attorney, and because appellant understood that another attorney would need to be retained, Dodd is not negligent for failing to secure evidence needed to pursue such a claim.
Second, the opinion of appellant’s expert is silent on the fact that the Plymouth was still in existence as of Dodd’s discharge in February 2000. It was not destroyed until over a year later. Consequently, the vehicle was indeed “preserved” at all times during Dodd’s representation of appellant. Negligence on the part of Dodd for failure to preserve the Chrysler has not been shown.
2. Alleged misrepresentations.
Appellant also argues that Dodd acted negligently by misrepresenting that the Plymouth was “gone,” even though it actually still existed. Appellant contends that because he and his family, along with others contacted about the case, relied on these misrepresentations, no one discovered that the Plymouth still existed, and consequently, no one took the appropriate steps to preserve the vehicle. With regard to this argument, appellant’s expert stated:
A primary duty which a lawyer owes his client is the duty to communicate honestly and accurately to the client the facts which are germane to the representation. If, as appears to be the case in Spaise v. Dodd, Mr. Dodd failed to provide his client accurate information about the availability of the accident vehicle, Mr. Dodd is negligent in this regard as well.
Here, the record contains inconsistent testimony about whether or not Dodd misrepresented the availability of the Plymouth to those involved in the case. Appellant testified that Connie Spaise and John Cabaniss, not Dodd, told him that the car was unavailable. Appellant also testified that Dodd never lied to him or said anything that was false.
Marcia Spaise, on the other hand, testified that she believed the car was unavailable because “Connie said Mr. Dodd had told her that, along with the fact that [when asked whether the North Dakota expert needed to see the Plymouth,] Mr. Dodd . . . said, ‘No, the pictures are all they need.’” When questioned further, Marcia Spaise admitted that Dodd never actually said the car was gone; rather, she “assumed it was gone . . . [b]ecause [Dodd] said the North Dakota [expert] could use the pictures.” Marcia Spaise also admitted that she never asked Dodd at any period of time where the car was or whether it was available for inspection, and that Dodd “never made any statement to [her] about whether the car was available or not.”
Dodd’s own testimony is also conflicting. At times, he denies ever telling anyone that the Plymouth was unavailable. Dodd testified that he did not even learn that the car was unavailable until after the commencement of appellant’s legal malpractice action. Yet at other times, Dodd admits that he may have “discussed the fact that the car might not be available.” For example, Dodd admits to telling the Spaises that the car was “junked,” but claims, “all I knew was the car had been taken to Jerry’s Salvage . . . I didn’t know whether or not it was unavailable.” Although Dodd denied discussing this topic with Connie Spaise, she testified that Dodd told her in March 1998 that “[t]he car has been destroyed, junked,” but not to worry because “we have pictures, so we’re okay.” Connie Spaise did admit, however, that Dodd never told her the Plymouth was gone or unavailable for inspection; rather, that was her interpretation of Dodd’s words. But Dodd states that when he spoke with Ziejewski, he “let him know that he might not have the actual vehicle.” Additionally, Dodd admits that he
shared with [the Spaises] the fact that when I discussed [the case] with Mr. Murphy . . . he was aware that the vehicle might not be there. And I shared with [the Spaises] the fact that I asked him that if that was a problem and that he said no he didn’t think so. . . .
I don’t remember the degree to which I discussed it with Chris Sorenson from [Fetterly] & Gordon, although I think I did. And I think he told me the same thing, that, you know, not having the vehicle wasn’t – shouldn’t be seen as a huge obstacle.
Finally, the record contains a memorandum from Barbara Meyers, a paralegal at John Cabaniss’s law office, which states: “I spoke with Tim Dodd and he indicates that the car does not exist. Tim contacted the deceased driver’s mother at one point and indicated that it was junked by then.” Yet Marcia Spaise testified that it was she, not Dodd, who informed Cabaniss that the car was gone.
Because there are numerous inconsistencies in the record as to whether or not Dodd made misrepresentations about the Plymouth and the extent of those misrepresentations, appellant has raised a genuine issue of material fact on the second element of his legal malpractice claim. Nonetheless, summary judgment is still proper if appellant fails to prove all four of the elements of his claim. Therefore, we shall address the remaining elements.
C. Proximate cause.
Appellant argues that Dodd’s negligent acts were the proximate cause of his damages because “the failure to have the product is a direct cause of the failure of a product liability claim.” But appellant’s argument ignores that several experts were able to analyze the viability of a potential design defect or manufacturing defect claim regardless of the availability of the Plymouth. Ziejewski was able to form his opinion based solely on a computerized analysis of a model vehicle. Furthermore, Robert Caldwell, an engineer from Ponderosa Associates, Ltd. in Colorado stated:
It is desirable for someone such as myself to be able to observe and inspect the involved vehicle in a motor vehicle accident reconstruction process; however, frequently this work needs to be performed without the vehicle being available. As in this case, the accident can often be reconstructed without the vehicle being examined. Further, vehicle behavior, dynamically, will typically give an indication as to whether a defect was responsible either for the accident or for the injuries to the occupant.
Caldwell went on to examine the potential defects raised by appellant, including roof structure and failure of the steering system, and dismissed both theories. Caldwell ultimately concluded that “the cause of this accident was clearly the responsibility of the driver, Michael House,” and that “[h]is departure from the roadway is consistent with inattention and/or incapacitation.” In addition, any questions regarding the necessity of producing the Plymouth at trial against Chrysler will never be answered. Appellant never brought suit against Chrysler.
We conclude that appellant has not established that Dodd’s failure to secure the Plymouth, or that any alleged misrepresentations about its availability, proximately caused harm to appellant’s potential product liability case against Chrysler.
Appellant also appears to argue as an alternative theory of proximate cause that Dodd’s misrepresentations about the availability of the Plymouth were the proximate cause of the other attorneys’ decisions not to pursue his product liability case. The record does not support that theory. Fetterly & Gordon declined involvement solely due to a conflict of interest. And when James Murphy of Murphy, Gillick, Wicht & Prachthauser declined representation, he stated:
On such limited information, I cannot and would not attempt to offer professional opinion regarding the merits of a possible product liability claim against Chrysler. However, based on the police report and more importantly, the photographs of the vehicle indicating a collision of great force between the car and the tree, there would be some difficulty in establishing a causal connection between any alleged defects in the car and [appellant’s] physical injuries.
Furthermore, while John Cabaniss testified that he did not believe there was any way to determine the relationship between any design defect and the actual injury without the vehicle, his March 2000 letter indicates that this was not the sole reason he declined representation. In that letter, Cabaniss stated, “[i]n legal malpractice actions in Wisconsin, a plaintiff must prove legal malpractice and the underlying product defect case. Because of that burden, I do not believe it makes economic sense for me to represent you . . . in a legal malpractice case.” Cabaniss elaborated on his decision not to pursue appellant’s case in his deposition, stating that he “didn’t have a lot of interest in getting involved in [a roof crush case because] . . . they’re difficult cases, and they take a lot of money.” Cabaniss testified that such a case would cost “a minimum of $400,000 and upwards of a million.”
Michael Snyder of Meshbesher & Spence, Ltd. also declined representation based on reasons other than the availability of the Plymouth, stating that “every case of legal malpractice is premised upon a successful claim,” and that his expert
[b]elieves the heavy localized roof damage from the impact with the tree and the drop height of the embankment makes this case difficult. In other words, even a crashworthy motor vehicle would not have prevented your injuries or, put another way, no vehicle can be manufactured in such a way [as] to have withstood the October 18, 1997 crash.
Furthermore, Snyder consulted with James Gilbert of Gilbert, Frank, Ollanik & Komyatte, P.C., who informed Snyder that
I believe the facts of this case simply make it too difficult to pursue. My biggest concerns are the drinking on the part of the driver, the heavy localized roof damage from the impact with the tree, the fact that [appellant] was unbelted (although given the severity of the roof crush I do not believe that seat belt usage would have changed the outcome), and finally the drop height of the embankment. Given these factors we must regrettably decline this case.
On this record, the evidence indicates that the subsequent attorneys contacted by appellant declined representation due to the unlikelihood of recovery in a product liability action given the circumstances of the crash, not based on any alleged misrepresentations by Dodd about the availability of the Plymouth.
Because appellant has failed to satisfy the third element of his malpractice claim, we conclude that summary judgment in favor of respondents was proper.
D. Case-within-a-case element.
We have already determined that summary judgment was appropriate because of appellant’s inability to meet the third element of a legal malpractice case. Even if we were to assume, however, for the sake of further analysis that appellant had met the first three elements, we conclude, as did the district court, that he failed to meet the fourth. This element, commonly referred to as the “case-within-a-case” element, requires that appellant establish that but for Dodd’s conduct, he would have been successful in a product liability action against Chrysler. See Noske, 670 N.W.2d at 742-43. The district court initially denied appellant’s motion for sanctions based on spoliation (a decision we review for abuse of discretion), and gave appellant an opportunity to present evidence that would meet his burden under the fourth element. When that evidence was not forthcoming, the district court awarded summary judgment to respondent, stating that rather than meeting his burden of proof, appellant merely “ask[ed] the Court to reconsider its ruling on his motion for sanctions, thus apparently conceding he has no evidence that a defect in the Plymouth either caused the accident or exacerbated his injuries.”
In challenging the district court’s award of summary judgment based on the failure to meet the fourth element of the legal malpractice action, appellant, in effect, asks this court to find that the district court abused its discretion in denying the spoliation sanction motion. He argues that without the Plymouth, he cannot prevail in a product liability action against Chrysler. We do not know, nor will we ever be able to determine, however, whether appellant is correct in this assertion. Appellant has not sued Chrysler; an action against Chrysler has not concluded in Chrysler’s favor based upon the lack of the Plymouth in evidence. While a suit against Chrysler may have informed our resolution of whether appellant could meet the fourth element of a legal malpractice action, we conclude that such evidence is not critical to our decision.
Appellant urges that he is presently in a “catch 22” position; that the evidence he needs to prevail against Chrysler is unavailable to him only because of negligence on the part of Dodd. It is intolerable, argues appellant, to permit Dodd to use this missing evidence to his advantage in defending against a legal malpractice claim. At first glance, there is superficial appeal to this argument. That appeal cannot withstand further review, however. If we accept for purposes of our analysis appellant’s assertion that he would be unable to prove his case against Chrysler without the Plymouth, we must revisit the order of the district court denying the spoliation sanction motion.
Appellant cites Galanek v. Wismar, 81 Cal. Rptr. 2d 236 (Cal. App. 4th 1999), in support of his argument that if a client can prove a negligence case against his attorney, then the burden should shift to the attorney to prove that his negligence did not cause the client to lose a meritorious product liability claim. See id. at 241 (recognizing that “[i]n negligence and product liability cases, the doctrine has evolved that the burden of proof on the issue of causation may be shifted to the defendant where demanded by public policy considerations” (quotations and citation omitted)). But there is no authority in Minnesota adopting California’s burden-shifting approach. To the contrary, the Minnesota Supreme Court has consistently stated that the plaintiff must establish the four elements of a legal malpractice claim, including that he would have prevailed in the underlying action but for the attorney’s negligence. See, e.g., Noske, 670 N.W.2d at 742-43; Blue Water Corp., 336 N.W.2d at 281; Godbout, 262 N.W.2d at 376. Therefore, we reject appellant’s argument that the burden of proof should shift on the fourth element of his legal malpractice claim.
Mindful of our narrow standard of review of a district court’s denial of a motion for spoliation sanctions, we ask: did the court abuse its discretion in that denial? Is there some form of sanction that the district court was compelled to grant in order to avoid abusing its discretion? What kind of sanctions would have been required to avoid abusing discretion? The only sanction that appellant seeks is the sanction of shifting the burden of proof to Dodd to show that a defect in the Plymouth did not cause the accident. The district court, in refusing to fashion such a Draconian sanction, observed that Dodd had been discharged by appellant more than a year before the Plymouth was destroyed, and thus, spoliation did not occur during Dodd’s representation, and that Dodd did not have control or possession of the Plymouth prior to its destruction. In examining this decision under our narrow standard of review, we cannot find that the court abused its discretion in so ruling. This discretionary determination led, ultimately, to an award of summary judgment for respondent. Appellant conceded and relied upon his inability to prevail in an action against Chrysler without the benefit of a discretionary call by the district court other than the one it made. The district court did not abuse its discretion in denying the spoliation sanction motion, and appellant, by his own concession, was thereby rendered unable to prove the case-within-a-case element of his legal malpractice action.
We conclude that in the absence of spoliation sanctions, the record supports the district court’s conclusion that appellant cannot meet the “case-within-a-case” element of legal malpractice, and the award of summary judgment was proper on that basis. Further, our independent review of the record has convinced us that appellant failed to establish the third element of his legal malpractice case (proximate cause), which provides an alternative basis for the award of summary judgment.
We believe that an additional observation may be advisable in clarifying our decision to affirm the district court in both its discretionary denial of spoliation sanctions and its award of summary judgment to respondent. Both the district court and appellant conflate the analysis of spoliation sanctions and the analysis of legal malpractice elements. The interplay of the doctrines makes the issue complex, and the conflation is understandable. But we conclude it is also of questionable validity. Arguably, the district court concluded that as a matter of law it was unlikely that appellant could prevail in a product liability action against Chrysler, and that it was therefore inappropriate to sanction Dodd for spoliation. Appellant argues strenuously, of course, that the result of such a conclusion enables Dodd to use his own negligent act (the spoliation of the evidence) to shield himself from incurring the just consequences of a legal malpractice action. Neither the district court nor appellant, however, addresses the question of whether the posture of this case was an appropriate one for consideration of spoliation sanctions in the context of a legal malpractice action.
Spoliation is the destruction of evidence or the failure to preserve property for another’s use in pending or future litigation. Federated Mut. Ins. Co. v. Litchfield Precision Components, Inc., 456 N.W.2d 434, 436 (Minn. 1990). Minnesota does not recognize an independent spoliation tort. Id. at 437. Rather, spoliation sanctions are typically assessed where one party gains an evidentiary advantage over the opposing party by failing to preserve evidence after having the opportunity to examine it. See Himes v. Woodings-Verona Tool Works, Inc., 565 N.W.2d 469, 471 (Minn. App. 1997), review denied (Minn. Aug. 26, 1997). This is true where the spoliator knew or should have known that the evidence should be preserved for pending or future litigation; the intent of the spoliator is irrelevant. Patton, 538 N.W.2d at 118. When the evidence is under the exclusive control of the party who fails to produce it, Minnesota also permits the jury to infer that “the evidence, if produced, would have been unfavorable to that party.” Federated Mut., 456 N.W.2d at 437 (quotation omitted); see also Wajda v. Kinsbury, 652 N.W.2d 856 (Minn. App. 2002). Furthermore, “[t]he propriety of a sanction for the spoliation of evidence is determined by the prejudice resulting to the opposing party.” Hoffman v. Ford Motor Co., 587 N.W.2d 66, 71 (Minn. App. 1998).
We have been concerned in reviewing the record before us that the posture of this case differs substantially from that of both a typical spoliation case and a typical legal malpractice dispute. As noted above, spoliation sanctions are employed to prevent discovery violations and to ensure that parties do not obtain an unfair advantage over their opponents by destroying evidence. Here, appellant is not claiming that his opponent in a product liability case has destroyed evidence. He claims that if he were to bring a product liability claim against Chrysler, he would be prejudiced due to alleged spoliation by Dodd. Ordinarily, the facts of destruction of the Plymouth would arise in an action between appellant as plaintiff and Chrysler as defendant. Chrysler almost certainly would be the party seeking sanctions against plaintiff for destruction of the Plymouth. In that event, responsibility for spoliation would be determined in the usual posture of spoliation cases: plaintiff has possession of evidence and has impaired or destroyed it to defendant’s prejudice.
In the leading Minnesota cases in which spoliation leads to summary judgment, courts have excluded evidence of allegedly faulty products to sanction product liability plaintiffs for spoliation, and then granted summary judgment to defendants because no genuine issues of material fact remained after the exclusion of the evidence. See, e.g., Patton, 538 N.W.2d at 119-20 (plaintiffs unable to make out prima facie case of defective motor home after exclusion of motor home as sanction for spoliation); Hoffman, 587 N.W.2d at 70-71 (plaintiffs unable to present prima facie case of defective automobile after court excludes automobile as a sanction for spoliation);Himes, 565 N.W.2d at 470-71 (entering summary judgment against plaintiff after excluding allegedly defective wrench spoliated by plaintiff).
Under the unique facts of this case, the plaintiff in a legal malpractice case has raised a spoliation claim against the defendant, plaintiff’s former attorney. We conclude that in order for spoliation relief to be appropriate in such a factual context, that relief would need to be based on one of two theories. Either Minnesota courts would recognize the shifting of the burden of proof from plaintiff to defendant in the legal malpractice action (this is the specific relief sought by appellant in his spoliation motion) or Minnesota courts would adopt an independent tort of spoliation – a tort that might then be committed by an attorney and form the basis of a legal malpractice claim against him or her.
As noted earlier, Minnesota courts have insisted that the burden of proof on all four elements of a legal malpractice case is upon the plaintiff. See Noske, 670 N.W.2d at 742-43. Regarding the possibility that appellant could prevail on a theory that Dodd committed the tort of spoliation, Minnesota courts have specifically rejected the invitation to adopt spoliation as a separate tort. See Federated Mut., 456 N.W.2d at 436-37. We also must reject an invitation to adopt spoliation as a separate tort.
Finally, we do not intend in this opinion to draw a bright line rule regarding the availability of spoliation sanctions in the context of a legal malpractice action. Indeed, a case involving different facts or different periods of attorney representation may lead to results different from those reached here. Changes in Minnesota law regarding burden-shifting or recognition of a separate tort of spoliation may also produce results different from those reached here. On the record before us, however, we find no abuse of discretion in the district court’s refusal to sanction respondents for spoliation. Affirmance of that decision leads us also to affirm the district court’s award of summary judgment for respondents on appellant’s legal malpractice claim, because appellant failed to present evidence sufficient to raise a material fact issue on either the third or fourth elements of that claim.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
Even aside from appellant’s admission, the record demonstrates that appellant cannot establish the fourth element of his legal malpractice claim. The record before us indicates a great deal of evidence establishing that the likelihood of success against Chrysler was minimal, regardless of whether the Plymouth was available and regardless of Dodd’s statements about the vehicle’s availability. The record indicates that the Plymouth was owned by the State of Minnesota from 1987 until it was sold to House in October 1995, and that it was regularly maintained during that time. No defects or failure of equipment were ever reported. Moreover, in 1995, the Plymouth was inspected twice prior to its sale to House, and the steering and brakes were found to be in working order. Additionally, the attorneys contacted about appellant’s potential product liability case consistently opined that the case was weak because of the circumstances of the accident, including that the collision occurred with great force, there was evidence of excessive drinking on the part of the driver, there was heavy localized roof damage from the impact with the tree, and there was a significant drop in height off the embankment. Importantly, one attorney stated that, “even a crashworthy motor vehicle would not have prevented your injuries or, put another way, no vehicle can be manufactured in such a way to have withstood the October 18, 1997 crash.” These opinions were also supported by two of respondents’ experts. Lowell Van Berkom, a forensic toxicologist, concluded that House “was severely impaired and unable to operate safely a motor vehicle” at the time of the accident, and Robert Caldwell, who reconstructed the accident, determined that the accident was “consistent with driver inattention and/or incapacitation,” and that the “roof impact severity was clearly well beyond the structural capabilities of any typical passenger vehicle.” Although appellant submitted divergent affidavits from his own experts, they do not establish that appellant would have been successful against Chrysler but for respondents’ negligence.