Hartung Commercial Properties, Inc. v. Buffi’s Automotive Equipment and Supply Co., Inc., [Ms. 1170482, Dec. 7, 2018] __ So. 3d __ (Ala. 2018). This decision (Bryan, J.; Stuart, C.J., and Parker and Main, JJ., concur; Mendheim, J., concurs specially) reverses the Mobile Circuit Court’s order dismissing the action as a sanction for spoliation of evidence.
Hartung Commercial Properties, Inc. (Hartung) sued Buffi’s Automotive alleging that Buffi’s negligence caused a fire which destroyed an auto body shop owned by Hartung. After the fire, Hartung had the building demolished after its insurers concluded investigations of the fire. Ms. *7.
The circuit court ordered the action dismissed as a sanction for Hartung’s failure to preserve the fire scene. In reversing, the Court applied five factors in analyzing the spoliation-of-the-evidence issue:
(1) the importance of the evidence destroyed; (2) the culpability of the offending party; (3) fundamental fairness; (4) alternative sources of the information [that would have been available] from the evidence destroyed; and (5) the possible effectiveness of other sanctions less severe than dismissal.
Ms. *13-14, quoting Story v. RAJ Props., Inc., 909 So. 2d 797, 802 (Ala. 2005).
In applying these factors, the Court concluded that “Buffi’s Automotive had at its disposal several individuals who investigated the fire and had taken photographs and written reports detailing their findings, and it very well could be that, after deposing those individuals or hiring its own expert, Buffi’s Automotive is able to present evidence from which the circuit court could conclude that the available evidence is not an adequate alternative to destroyed evidence and it would not be fundamentally fair to allow Hartung’s claims to proceed in light of its destruction of evidence. However, the circuit court was not presented with evidence to support such a conclusion at this stage of the proceedings.” Ms. *15-16 (emphasis in the original).