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Spoliation Of Evidence – A Summary Of Killings V. Enterprise Leasing Company, Inc., 2008 Wl 4967412 (Ala. 2008)

June 1, 2009

Spoliation of Evidence

This article was originally published in the Subrogator, a publication by the National Association of Subrogation Professionals, Summer, 2009, Page 74. © Copyright 2009 by NASP. All rights reserved. Republished by Butler with permission from NASP.

State Specific | Alabaman

A summary of Killings v. Enterprise Leasing Company, Inc., 2008 WL 4967412 (Ala. 2008). A recent case from the Supreme Court of Alabama.


In Killings v. Enterprise Leasing Company, Inc.,1 the Alabama Supreme Court recently held that a Plaintiff may proceed with a claim of spoliation against a third party responsible for negligently discarding necessary evidence in an underlying case.

This case resulted from an automobile accident that occurred in May, 2004 in which Plaintiff Thomas O’Troy Killings (“Killings”) was injured. At the time of the accident, Killings was operating a 2001 Ford E—150 van that his employer, CBIZ Network Solutions, LLC, had leased from Defendant, Enterprise Leasing. Shortly after the accident, Enterprise Leasing had the automobile moved to a local repair shop. Four weeks later, Killings’s attorney telephoned Enterprise Leasing and requested that the automobile be preserved for investigative purposes. Killings’s attorney sent a follow up letter to Enterprise Leasing confirming the conversation and stating, among other things, as follows:

I ask that you please do not change, modify, discard, destroy, alter, sell, or remove this vehicle from Cockrell’s Body Shop without first giving me notice of [your] intentions. If it becomes necessary for you to change, modify, destroy, or alter the vehicle in any way, please notify me immediately so that I can make arrangements to preserve the evidence needed in my investigation. If the subject vehicle is changed in any manner which compromises the integrity of my investigation, you may be liable for negligent spoliation of evidence under Alabama law.2 See Brown Electro Mechanical Systems, Inc. v. Thompson Engineering, et al., 848 So. 2d 238 (Ala. 2002).

Subsequent to sending his letter, Killings’s attorney made arrangements to have his expert inspect the subject automobile. Killings’s attorney sent Enterprise Leasing another letter confirming the inspection date, and again requesting that Enterprise Leasing continue to preserve the automobile with the same language set forth above. During a follow up call with a representative of Enterprise Leasing with regard to the inspection, Killings’s attorney advised Enterprise Leasing that this investigation may take “several years,” and the representative assured the attorney that the automobile would not be moved without advising the attorney first.

Following the inspection, Killings’s attorney filed suit against the manufacturer of the automobile, and various other entities related to the manufacturing of the tires. During discovery, the Defendant’s had a protective order entered “prohibiting the parties, their representatives, or any other persons from disposing of or materially altering the subject van.”3 Five months later, without knowledge of the protective order, and without giving any notice to Killings’s attorney, Enterprise Leasing transferred the automobile to an auction where it was sold for scrap and subsequently destroyed.

Once Killings’s attorney learned that the automobile had been discarded, he amended his complaint to include a third party spoliation claim against Enterprise Leasing, and dismissed the claims against the other parties as his expert was unable to render any opinions as to fault as the automobile was discarded before completing his investigation. Enterprise Leasing moved for summary judgment, and prevailed, arguing that it had no duty to preserve the van, that it had no knowledge of the litigation, and that the automobile was not vital to Killings’s case.

Alabama recognizes that general principles of negligence law afford an Alabama plaintiff a remedy when evidence crucial to a plaintiff’s case is lost or destroyed through the acts of a third party.4 Smith expanded the burden of proof with regard to a negligent spoliation of evidence claim by identifying three additional criteria that must be met in addition to proving duty, breach, causation and damages. The additional criteria are as follows:

  1.     The defendant spoliator must have actual knowledge of
                the pending or potential litigation;

  2. There must be a duty imposed on the defendant spoliator
                through a voluntary undertaking, an agreement,
                or a specific request; and
  3. The missing evidence must be vital to the plaintiff’s pending
                or potential action.5

“Once all three of these elements are established, there arises a rebuttable presumption that but for the fact of the spoliation of evidence, the plaintiff would have recovered in the pending or potential litigation; the defendant must overcome the rebuttable presumption or else be liable for damages.”6 Enterprise Leasing argued that it had no knowledge of the “pending or potential litigation,” and therefore it was entitled to summary judgment. The Supreme Court of Alabama determined that the phone calls and two letters drafted by Killings’s attorney were sufficient to advise Enterprise Leasing that this matter was likely to result in litigation.

The Supreme Court of Alabama next determined whether Enterprise Leasing owed a duty to preserve the automobile. Citing Smith,7 the court recognized that while a third party generally has no duty to preserve evidence, a duty may arise if: (1) the third party voluntarily assumes the duty to preserve the evidence; (2) the third party agrees with the plaintiff that it will preserve the evidence; or (3) the plaintiff makes a specific request to the third party to reserve the evidence. It was determined by the Supreme Court of Alabama that because Enterprise Leasing advised that it would not move the automobile without advising Killings’s attorney first, that it had assumed the duty of maintaining the automobile until advising Killings’s attorney otherwise.

Finally, Killings’s attorney’s expert testified that without the automobile, he was unable to complete his investigation and determine the specific cause of the subject accident. Without the evidence, Killings’s attorney was forced to dismiss the case against the other Defendants. The Supreme Court of Alabama ruled that this was sufficient to conclude that the evidence vital to Killings’s lawsuit.

Based on the above, the Supreme Court of Alabama reversed the trial court’s granting of Enterprises Leasing’s motion for summary judgment, remanding the case back to the trial court. This recent case is a good one to keep handy as it artfully walks through what is necessary to support a claim of third party spoliation of evidence.


  1. Killings v. Enterprise Leasing Company, Inc.,
       2008 WL 4967412 (Ala. 2008).
  2. Id. at 1.
  3. Killings at 2008 WL 4967412 (Ala. 2008).
  4. Smith v. Atkinson, 771 So. 2d 429, 432 (Ala. 2000).
  5. Killings at 2008 WL 4967412 (Ala. 2008).
  6. Id. at 4. Smith at 771 So. 2d 429, 433.