NANCY BLOEMENDAAL V TOWN & COUNTRY SPORTS CENTER INC
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STATE OF MICHIGAN
COURT OF APPEALS
NANCY BLOEMENDAAL and
JAMES BLOEMENDAAL,
UNPUBLISHED
October 8, 2002
APPROVED FOR
PUBLICATION
January 24, 2003
9:10 a.m.
Plaintiffs-Appellants,
v
TOWN & COUNTRY SPORTS CENTER INC.,
AMERICAN HONDA MOTOR CO. INC., and
HONDA MOTOR CO. INC.,
Defendants-Appellees.
No. 234200
Lenawee Circuit Court
LC No. 99-008273-NP
Updated Copy
April 11, 2003
Before: Griffin, P.J., and Gage and Meter, JJ.
PER CURIAM.
Plaintiffs appeal as of right the trial court order granting defendants' motion for summary
disposition in this products liability action. We affirm.
On July 9, 1997, plaintiff Nancy Bloemendaal picked up her newly purchased Honda
Rebel motorcycle from defendant Town & Country Sports Center, Inc. After driving less than
one mile from the dealership, she lost control of and crashed the motorcycle. Immediately after
the accident, plaintiffs had the motorcycle impounded and retained several experts to
disassemble and inspect it. This inspection allegedly revealed damage to the ball bearings and
races located in the steering system. The components were then sent to a metallurgical expert,
who allegedly opined that the bearing adjusting nut had been undertorqued. Defendants were not
present at the inspections or disassembly.
Plaintiffs thereafter filed suit against defendant Town & Country for failing to properly
assemble and inspect the motorcycle. Plaintiffs subsequently amended their complaint to include
claims against the defendants American Honda Motor Co, Inc., and Honda Motor Co, Ltd., for
failure to properly design and manufacture the motorcycle, as well as breach of warranty claims.
The Honda defendants conducted a demonstrative riding with an exemplar motorcycle
containing the steering components from the accident motorcycle. It is alleged that this
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exemplar motorcycle was operated without difficulty for twenty-five miles while being driven
through curves that duplicated the radius of the curve where the accident occurred.
The Honda defendants filed a motion for summary disposition pursuant to MCR
2.116(C)(10), which defendant Town & Country adopted. Defendants argued that summary
disposition was appropriate because plaintiffs intentionally or negligently destroyed crucial
physical evidence by disassembling the motorcycle without testing the torque that had been
applied to the bearing adjusting nut.1 According to defendants, the testing of the torque would
have been determinative of this case and because of the spoliation of the evidence, dismissal was
warranted. In the alternative, defendants argued that plaintiffs' experts were unqualified to
render opinions in this matter and that plaintiffs could not establish proximate cause.
Plaintiffs argued that there was no spoliation of evidence because none of the evidence
was lost or destroyed. Plaintiffs argued that defendants were not prejudiced by the failure to use
a torque wrench because defendants had the opportunity to inspect the parts and conduct a test
with an exemplar motorcycle. Further, plaintiffs contended that the disassembly had been
photographed and videotaped so defendants had the opportunity to view the disassembly.
According to plaintiffs, the mere use of a torque wrench in taking off the nut would not have
given the same indication of the amount of torque that had been applied to it; therefore, the use
of a torque wrench would not have provided conclusive evidence of the torque that had been
applied to the nut. Plaintiffs also argued that their expert witnesses were qualified to testify and
that their testimony established proximate cause.
At the hearing on the motion for summary disposition, the trial court found that the entire
case revolved around the question whether the bearing adjusting nut had been undertorqued. The
court granted summary disposition on the basis that plaintiffs' experts failed to torque or measure
the bearings, did not index the bearings, and lost one bearing. The court concluded that had
plaintiffs' experts measured the torque, it "probably would've decided this once and for all," or it
could have been major evidence for defendants. Specifically, the court stated:
Now, I'm sure that plaintiff [sic] didn't do this deliberately, but plaintiff is
the one that selected the expert. And his autopsy was done ineptly, by people
who were unqualified to do it. They weren't experienced in motorcycles. It was
anything but scientific. It was anything but following accepted standards.
I look at possible remedies. Not permitting plaintiffs' experts to testify
that it was too loose or too tight isn't going to solve the problem at all. An
instruction isn't going to solve the problem. I think that the defendants are fatally
prejudiced by this. Much more than putting them at an unfair advantage. Much,
1
According to defendants, whether the bearing adjusting nut was properly torqued could have
been determined by the use of a torque wrench at the time of disassembly.
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much more than that. I think that the—and I've been thinking about this, quite
frankly, for weeks. The motion is granted.
The trial court dismissed this case by granting defendants' motion for summary
disposition, but did not specify the court rule under which it granted the motion. However, it is
clear the court dismissed the case as a sanction for plaintiffs' failure to preserve evidence.
Because MCR 2.116 is not a rule of sanction, the trial court's method of dismissing this case was
incorrect. See Brenner v Kolk, 226 Mich App 149, 155; 573 NW2d 65 (1997). Therefore, we
must turn our attention to a proper analysis of a trial court's authority to sanction a party for
failing to preserve evidence.
A trial court has the authority, derived from its inherent powers, to sanction a party for
failing to preserve evidence that it knows or should know is relevant before litigation is
commenced. MASB-SEG Property/Casualty Pool, Inc v Metalux, 231 Mich App 393, 400; 586
NW2d 549 (1998), citing Brenner, supra at 160. An exercise of the court's "inherent power"
may be disturbed only on a finding that there has been a clear abuse of discretion. Brenner,
supra at 160, citing In re Estate of Jones, 115 Mich App 600, 602; 322 NW2d 311 (1982).
This Court's decision in Brenner, supra, is instructive in this case. In Brenner, the
plaintiff brought suit after she was injured while driving the defendant's automobile. Although
the plaintiff removed part of the allegedly defective seat belt, the entire car was demolished
before any other evidence could be retrieved. This Court found that, in a case involving a party's
failure to preserve evidence, a trial court properly exercises its discretion when it carefully
fashions a sanction that denies the party the fruits of the party's misconduct, but that does not
interfere with the party's right to produce other relevant evidence. Brenner, supra at 161, citing
Lewis v Tel Employees Credit Union, 87 F3d 1537, 1557-1558 (CA 9, 1996). A lesser
appropriate sanction could be the exclusion of evidence that unfairly prejudices the other party or
an instruction that the jury may draw an inference adverse to the culpable party from the absence
of the evidence. Brenner, supra at 161.
Here, plaintiffs argue that sanctions for spoliation are not appropriate in this case because
no evidence was lost or destroyed. However, spoliation may occur by the failure to preserve
crucial evidence, even though the evidence was not technically lost or destroyed. See id. at 161162. "Even when an action has not been commenced and there is only a potential for litigation,
the litigant is under a duty to preserve evidence that it knows or reasonably should know is
relevant to the action." Id. at 162, citing Fire Ins Exchange v Zenith Radio Corp, 103 Nev 648,
651; 747 P2d 911 (1987).
In this case, plaintiffs were aware of the possibility of a problem with the steering
mechanism at the time of the inspection.2 Plaintiffs' expert, Paul Cross, testified that before the
2
In their appellate brief, plaintiffs refer to an affidavit signed by Donald Van Kirk, who also
took part in the inspection of the motorcycle. In this affidavit, Van Kirk asserts that on the basis
of his preliminary examination of the motorcycle, he had no reason to believe torque was an
(continued…)
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disassembly of the motorcycle, he knew that there might be something wrong with the steering
components and he knew litigation was likely. He knew that the bearing adjusting nut on the
motorcycle was supposed to be torqued to a particular setting and he knew how to check for
torque on the bearing adjusting nut by using a torque wrench or conducting a steering pre-load
test. He also admitted that if the torque was not checked in one of these ways during
disassembly, the conclusive evidence regarding whether the bearing adjusting nut was properly
torqued would be lost forever. Plaintiffs' metallurgical expert, Dr. Paul Trojan, also testified that
the best way to determine whether the bearing adjusting nut was properly torqued would be to
use a torque wrench when the component was disassembled.
Plaintiffs make much of the fact that although the torque of the bearing adjusting nut was
not tested, the disassembly process was videotaped and photographed so defendants had the
opportunity to view the entire process. Plaintiffs claim that negligence can be shown by the
damage shown on the bearings. Plaintiffs further argue that defendants have not been prejudiced
by the alleged spoliation because defendants have been able to disprove plaintiffs' negligence
theory by performing their own inspections and tests.
The court did not base its decision on any actual piece of the motorcycle being lost or
destroyed. Rather, while disassembling the motorcycle, plaintiffs' experts failed to test a certain
part of the motorcycle that was essential to their ultimate theory of liability. Because this test
can no longer be duplicated because the bearing adjusting nut has been removed, the failure to
conduct the test amounts to the failure to preserve evidence. This test would have been evidence
of whether the bearing adjusting nut was properly torqued—a theory plaintiffs should have been
aware of at the time of the inspection. Plaintiffs' failure to measure the torque at the time of
disassembly severely prejudiced the defense. Because defendants were not present at the time of
the disassembly, they were precluded from gaining this evidence on their own. The failure to
preserve this evidence deprived the defense of the opportunity to inspect crucial evidence
relative to this particular motorcycle.
We conclude that the trial court did not abuse its discretion in determining that a sanction
against plaintiffs would be appropriate. However, we must now determine whether the actual
sanction imposed by the trial court—dismissal—was the appropriate sanction. "Dismissal is a
drastic step that should be taken cautiously." Brenner, supra at 163. Before imposing the
sanction of dismissal, the trial court must carefully evaluate all available options on the record
and conclude that dismissal is just and proper. Id., citing Vicencio v Ramirez, 211 Mich App
501, 506; 536 NW2d 280 (1995).
(…continued)
issue. This affidavit was signed after the trial court granted summary disposition and was
provided with plaintiffs' motion for reconsideration; therefore, the trial court could not have
considered the affidavit in granting summary disposition. Because plaintiffs could have
produced this affidavit earlier in the case and did not, we decline to consider it.
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In Brenner, this Court decided that although sanctions were appropriate, the trial court
abused its discretion in dismissing the case because the record did not demonstrate the egregious
conduct that would warrant dismissal. Brenner, supra at 163. This Court determined that the
trial court should have considered lesser sanctions, such as excluding any evidence that was
unfairly prejudicial to the defendant. Id. at 164. Alternatively, this Court held that if the trial
court meant to exclude the evidence and then grant summary disposition because the plaintiff
could not make out a prima facie case, the trial court had to state on the record that it carefully
fashioned the sanction to deny the plaintiff the fruits of her conduct. Id.
Here, the trial court stated that it looked at the possible remedies, including not allowing
plaintiffs' experts to testify that the bearing adjusting nut was too loose or too tight and giving an
instruction regarding the matter, and concluded that the possible remedies would be insufficient
to cure the prejudice to defendants. Although plaintiffs have produced evidence that the actual
ball bearings are damaged and defendants were able to conduct a test with an exemplar
motorcycle, the use of a torque wrench at the time of disassembly would have shown whether the
bearing adjusting nut had been properly torqued. Plaintiffs' theory of liability hinged on whether
the bearing adjusting nut was properly torqued. Because the trial court looked at other remedies
and concluded they were insufficient to overcome the prejudice, we cannot conclude that
dismissal was an abuse of discretion.
Because we find dismissal was appropriate, we decline to address defendants' alternate
theories for affirming the trial court's grant of summary disposition.
Affirmed.
/s/ Richard Allen Griffin
/s/ Hilda R. Gage
/s/ Patrick M. Meter
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