Date: 10-31-2001

Case Style: Davis v. Wal-Mart Stores, Inc. d/b/a Sam's Club

Case Number: 00-1145

Judge: Pfeifer

Court: Supreme Court of Ohio

Plaintiff's Attorney: Greene & Eisen Co., L.P.A., William M. Greene, Brian N. Eisen and Eric M. Schreibman, for appellee.

Defendant's Attorney: Jones, Day, Reavis & Pogue, Jeffrey S. Sutton and Brian G. Selden; Reminger & Reminger Co., L.P.A., Clifford C. Masch and Roy A. Hulme, for appellant.

Description: On September 10, 1992, Thomas Davis was fatally injured, while operating a forklift, when the driver of the produce truck he was unloading pulled away from the loading dock prematurely. As a result of this incident, appellee Bernadine Davis, the wife of Thomas Davis, brought an action against appellant Wal-Mart Stores, Inc. (“Wal-Mart”) and a co-worker. Davis settled the claim with the co-worker and dismissed her survivor claim against Wal-Mart. Davis’s remaining claim for wrongful death against Wal-Mart, based upon an intentional tort, was tried to a jury.

The jury found for Davis and awarded damages. Thereafter, the trial court granted an award of prejudgment interest. The court of appeals affirmed, and we denied review. Davis v. Sam’s Club (1997), 77 Ohio St.3d 1526, 674 N.E.2d 377.

During the course of post-trial proceedings for prejudgment interest, Davis came to believe that Wal-Mart had withheld certain evidence and documents and that several employees of Wal-Mart had provided false or misleading testimony during their depositions in the intentional tort case. Davis returned to the trial court and filed a new action, alleging that Wal-Mart’s spoliation of evidence had led her to dismiss her survivor claim. Davis claimed that this dismissal prevented her from seeking additional compensatory and punitive damages. Wal-Mart moved for summary judgment on Davis’s claim of tortious interference with evidence, which was granted, based on res judicata.

The court of appeals reversed and remanded, stating that the present claim of tortious interference and the previous claim of intentional tort did not arise out of the same set of operative facts and, therefore, res judicata did not bar the claim for tortious interference. The cause is now before this court pursuant to the allowance of a discretionary appeal.

In its first proposition of law, Wal-Mart argues that the spoliation claim should be precluded because the spoliation was discovered or should have been discovered before the resolution of the original litigation. As primary authority for this proposition, Wal-Mart cites Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 653 N.E.2d 226. The syllabus of Grava states: “A valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action.” (Citations omitted.)

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Click the case caption above for the full text of the Court's opinion.

Outcome: Claims for spoliation of evidence may be brought after primary action has been concluded only when evidence of spoliation is not discovered until after the conclusion of the primary action.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: Reported by Kent Morlan