A recent Fourth circuit decision raises doubts regarding whether a claim for spoliation of evidence can be dismissed through summary judgment. In Fiveash v. Pat O’Brien’s Bar, Inc., 2015-1230 (La. App. 4 Cir. 9/14/16), — So.3d —, 2016 WL 4820387, the plaintiff fell on a step in the entrance to the piano bar at the popular Pat O’Brien’s on Bourbon Street. Plaintiff’s counsel requested to inspect the step with his expert. However, before the scheduled inspection date, the step was damaged when a garbage can hit the face of the step and knocked loose the metal threshold.

The defendant informed the plaintiff and assured that the step would be repaired to the same condition as before the garbage can incident. In reaction, the plaintiff raised a spoliation claim which contended that the defendant intentionally destroyed the step to impair her liability claim. In response, the defendant filed a motion for summary judgment.

The defendant argued that the step was not repaired with an intent to deprive plaintiff of its use at trial and that plaintiff possessed no evidence to establish a wrongful intent. The defendant produced two affidavits to demonstrate that the step was repaired to eliminate a safety risk and not to intentionally destroy evidence. The trial court found this evidence “persuasive” and granted the motion for summary judgment.

The Fourth Circuit reversed, reasoning that it is “rarely appropriate” to grant summary judgement when questions of intent are in dispute. The Fourth Circuit also found that the trial court inappropriately “weighed” evidence when it deemed defendant’s affidavits to be “persuasive.” Because the affidavits were the only evidence used to establish the defendant’s intent, the court held that the veracity of the affidavits presented a question to be decided by the trier of fact.