holding that parties to a lawsuit do not owe each other a duty to refrain from causing a mistrial, and observing that “[t]ry-ing a ease is often a mental as well as physical challenge requiring attention to every detail. The parties should not have the additional burden of worrying whether an improper question or answer or some other event will inspire another round of litigation”
How later courts described this case
- holding that parties to a lawsuit do not owe each other a duty to refrain from causing a mistrial, and observing that “[t]ry-ing a ease is often a mental as well as physical challenge requiring attention to every detail. The parties should not have the additional burden of worrying whether an improper question or answer or some other event will inspire another round of litigation”
- recognizing cause of action for negligent hiring and retention of employee; "In order to prevail on this theory, the plaintiff must show that the defendant employer negligently retained an employee who the defendant knew was in the habit of misconducting himself."
- recognizing that when an employer stipulates that an employee was acting within the scope of employment, the “sole possible advantage to the pursuit of a negligent hiring theory ... would be the potential assessment of punitive damages”
- holding that the tort of spoliation does not include a duty to avoid causing a mistrial
Written by the judges who cited it.
The opinion
BARTEAU, Judge,
concurring in part and dissenting in part.
I concur with parts I and III, but dissent to part II. I believe that Trust Beneficiaries have stated a claim upon which relief can be granted for intentional interference with civil litigation.
The majority concludes that the parties to a lawsuit do not owe each other the duty to refrain from causing a mistrial, drawing an analogy to "malicious defense" cases. The analogy is not appropriate. In Ritter v. Ritter (1943), 381 Ill. 549 , 46 N.E.2d 41 , the case relied upon by the majority, the plaintiffs had successfully sued the defendant to recover title to certain property. Subsequently, the plaintiffs brought an action against the defendant to recover for the loss of time, lawyer's fees and other expenses incurred in the prior litigation. The plaintiffs alleged that those were damages proximately caused by the defendant's wrongful conduct because the plaintiffs were forced to engage in litigation to recover their property. In rejecting this claim, the Supreme Court of Illinois noted that the defendant had the right to resist the plaintiffs's claim to the property and that if
in the process of the procedure necessary to the establishment of plaintiffs [sic] claims, they were compelled to employ the services of lawyers and incur other expenses it was but an incident attached to the asserting and enforcement of their right to have their property conveyed to them, and defendant's conduct in withholding the title until compelled by litigation to surrender does not constitute a breach of any duty he owed plaintiffs for which a separate action can be maintained.... If the wrongful conduct of a defendant causing the plaintiff to sue him would give rise to an independent tort and a separate cause of action, there would be no end to the litigation, for immediately upon the entry of judgment the plaintiff would start another action against the defendant for his attorney fees and expenses incurred in obtaining the preceding judgment.
Id. at 554 , 46 N.E.2d at 44 .
The case before us does not involve a request for the attorney fees and expenses arising from the need to litigate a case because the defendant, within its rights, resisted the plaintiffs's claims. Rather, this case is premised on the claim that defendant intentionally caused a mistrial, thereby damaging the plaintiff to the extent that the plaintiff had to incur additional attorney fees and expenses to try the case again. This is not an incidental expense attached to the enforcement of a right in the first instance, as was the case in Ritter. Nor is intentionally causing a mistrial, the conduct alleged here, within the realm of conduct which we should label zealous or vigorous representation of a client, as suggested by the majority. The conduct of Bank alleged by Trust Beneficiaries is, pure and simple, a form of obstruction of justice.
In Smith v. Superior Court (1984), 151 Cal.App.3d 491 , 198 Cal.Rptr. 829 , a "spoliation of evidence" case, the California Court of Appeals allowed the plaintiffs to bring a cause of action for intentional interference with prospective civil litigation. While it is not entirely clear from the court's opinion, it appears that the intentional interference action was included in the plaintiffs's complaint for personal injury. At any rate, it is clear that the underlying personal injury action had not yet gone to trial. In that case, the plaintiffs were injured when the tire on a van flew off and crashed into their windshield. After the accident, the van was towed to the defendant, the van dealer that had customized the van with "deep dish mag wheels." The defendant agreed with plaintiffs to maintain the physical evidence, pending further investigation. The defendant subsequently *1271 lost, destroyed or transferred the evidence, making it impossible for the plaintiffs's experts to inspect the parts in order to determine what caused the wheel to come off,. In allowing the plaintiff to bring the cause of action, the court emphasized that the underlying personal injury claim had not yet gone to trial; thus, the need to have an end to litigation and to avoid relitigation of matters already adjudicated was not a concern. Id. at 498 , 198 Cal.Rptr. at 834 .
The court also rejected an argument that spoliation of evidence is a form of obstruction of justice, like false testimony and perjury, and because perjury and false testimony are not answerable in civil actions, neither should be spoliation of evidence. While acknowledging that spoliation of evidence was a form of obstruction of justice, the court noted that destruction of the evidence occurred before the trial ever began and the plaintiffs were seeking compensation for destruction of evidence to be used in the forthcoming litigation. Id. at 499 , 198 Cal.Rptr. at 885 . Implicit in this distinction is the recognition that allowing a civil cause of action for perjury would result in a second litigation of the previously litigated case, a concern not present with the spoliation of evidence cause.
Additionally, perjury and false testimony generally do not support a civil action for the reason that "an absolute privilege for words spoken in the course of a judicial proceeding was thought necessary to promote testimonial candor by shielding witnesses from fear of subsequent civil suits; criminal penalties were deemed sufficient sanctions against perjury." Viviano v. CBS, Inc. (1991), 251 N.J.Super. 113, 124-25 , 597 A.2d 543, 549 , certif. denied 127 N.J. 565 , 606 A.2d 375 (1992). In Viviano, the court refused to treat concealment of evidence by a party similar to perjury because "immunizing the willful destruction or concealment of evidence would not further the policy of encouraging testimonial candor." Id. at 126, 597 A.2d at 550 .
Similarly, in Henry v. Deen (1984), 310 N.C. 75 , 310 S.E.2d 326 , the plaintiff, administrator of decedent's estate, filed a medical malpractice complaint against several physicians and included a count for civil conspiracy based on plaintiff's allegations that the defendant-physicians conspired to alter medical records and to prevent the plaintiff from discovering the negligent acts of two of the defendants. The Supreme Court of North Carolina held: "Where, as alleged here, a party deliberately destroys, alters or creates a false document to subvert an adverse party's investigation of his right to seek a legal remedy, and injuries are pleaded and proven, a claim for the resulting increased costs of the investigation will Hie." Id. at 88 , 310 S.E.2d at 334-35 .
Likewise, here, allowing Trust Beneficiaries to bring an action for intentional interference with civil litigation will not result in a relitigation of matters already litigated. The underlying cause of action has not yet been litigated because the first trial resulted in a mistrial. The interference with civil litigation claim will be litigated in the course of the new trial made necessary by the mistrial. Also, unlike perjury, immunizing Bank's conduct here, assuming Trust Beneficiaries prove their allegations, would not further the policy of encouraging testimonial candor. In short, the reasons for not allowing a cause of action for other types of interference with civil litigation do not apply here. Finally, I have no problem recognizing that the parties to a lawsuit owe each other the duty to refrain from intentionally causing a mistrial under the facts as alleged here. The basis of this duty comes from the policy against parties deliberately frustrating and causing undue expense to adverse parties as exemplified in the trial rules and common law. See e.g.: Ind. Trial Rule 37 (providing for award of attorney fees and expenses when party successfully moves for order compelling discovery); United Farm Bureau Mut. Ins. Co. v. Ira (1991), Ind.App., 577 N.E.2d 588 , trans. denied (inconvenience and frustration suffered by aggrieved party are proper elements of damages in contempt proceeding); see also Henry, 310 N.C. 75 , 310 S.E.2d 326 .
Trust Beneficiaries have sufficiently stated a claim upon which relief can be granted for intentional interference with civil litigation.