Opinion
No. 9 WAP 2009.
Argued: September 15, 2009.
Decided: November 23, 2011.
Appeal from the Order of the Commonwealth Court entered September 15, 2008 at No. 1592 CD 2007, affirming the Order of the Fayette County Court of Common Pleas entered July 20, 2007 at No. GD 541 of 2005.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.
OPINION
In this case, Appellants sued Appellees based on the destruction of personal property, to wit, a black nylon tree stand safety harness, or belt, that allegedly was crucial evidence in a separate civil action. The Pennsylvania State Police ("State Police") had seized this item during a criminal investig ation of a suspicious death. A state trooper had agreed to retain the belt in the custody of the State Police, apparently for a longer period of time than permitted by internal State Police reg ulations, for Appellants' later use. However, the belt was destroyed before Appellants' counsel asked for its return. Appellants sued, and the trial court g ranted summary judg ment to Appellees, which judg ment the Commonwealth Court affirmed. The Commonwealth Court held, inter alia, that no cause of action exists against a third party — someone other than the orig inal alleged tortfeasor — for neg ligent spoliation of evidence. We g ranted review, and now hold that Pennsylvania law does not recognize a cause of action for neg ligent spoliation of evidence.
Because this is an appeal from the affirmance of the g rant of summary judg ment, we view the record in the light most favorable to Appellants, as they were the non-moving parties. Liss Marion, P.C. v. Recordex Acquisition Corp., 983 A.2d 652, 657 (Pa. 2009). When so considered, the record reveals the following. Decedent, Daniel Pyeritz, left his brother's home near Markleysburg in Fayette County during the early morning hours of October 30, 2001, to g o hunting. He drove his four-wheel drive vehicle into the woods, climbed up a tree to a tree stand approximately 15 feet above the g round, and lashed himself to the tree stand with the black nylon belt at issue here. When Mr. Pyeritz failed to return to his brother's house at the expected time, a search party was formed; Mr. Pyeritz was found dead at the bottom of the tree. The belt had ripped in two; half of it was found around Mr. Pyeritz's waist, and the other half was still in the tree stand. At the time of his death, Mr. Pyeritz was 47 years old, married to Appellant Dawn Pyeritz, and the father of one minor child and one adult child, Appellants Nicole L. and Christopher E. Pyeritz, respectively. A hig h-school g raduate, Mr. Pyeritz had worked for 16 years for US Airways as a bag g age handler, and at the time of his death, he earned approximately $55,000 a year.
A tree stand is a platform in a tree from which a hunter can wait undetected for deer or other prey.
When they found Mr. Pyeritz's body, the searchers called the State Police, and Appellee Trooper Daniel Ekis ("Trooper Ekis") was assig ned to the investig ation. Trooper Ekis took the two pieces of the tree stand belt into custody and log ged them into evidence at the State Police barracks in Uniontown, where they were placed in two separate manila envelopes and lodged in the evidence room. Shortly after Mr. Pyeritz's death, and during the pendency of the criminal investig ation into the death, Appellants hired counsel to investig ate pursuing a civil suit. Counsel for Appellants sent Trooper Ekis a letter in November 2001, stating , "Because of the extreme need to see that there is no spoliation of this evidence, I may ask you to retain the harness for the indefinite future, even after the inquest, if you are able to do so." Letter dated November 27, 2001, from Michelle H. Lally, Esq., to Trooper Ekis. Trooper Ekis informed counsel that there would be a coroner's jury proceeding to determine the cause and manner of death, and that until that proceeding ended, the pieces of the belt could not be released from State Police custody. In January 2002, Appellants' counsel and a professional photog rapher went to the Uniontown barracks and took photog raphs of the two separate pieces of the belt. On May 21, 2002, a representative of one of the putative manufacturers of the belt, accompanied by Appellants' counsel, also took photog raphs of the two belt pieces at the Uniontown barracks.
An inquest was eventually held approximately one year later, in November 2002, after which the coroner's jury determined that the manner of death was an avoidable accident. Shortly after the coroner's jury rendered its verdict, still in November 2002, Appellants' counsel asked Trooper Ekis to keep the pieces of the belt in the evidence room, and Trooper Ekis agreed to the request. As Trooper Ekis testified at his deposition, "Well, I first said that you g uys could have the evidence, and you [Appellants' counsel] said could we keep it at the barracks until you made a determination through the civil case, and I said we would keep it in the evidence room." Deposition of Trooper Daniel Ekis, 10/6/03, at 30. Trooper Ekis placed the pieces of the belt back in the evidence room at the Uniontown barracks, and made a notation on a clipboard in the evidence room where the belt was being stored that the belt was to be released either to Appellant Dawn A. Pyeritz or to her counsel. Id. at 31.
In June 2003, the Uniontown barracks were relocated to a new building. All of the evidence in the evidence room at that time, including the two pieces of the belt, was transferred to the new facility. At some point prior to this relocation but after having agreed to keep the belt in the evidence room, Trooper Ekis was transferred to a barracks in Waynesburg. As a result, the investig ation into Mr. Pyeritz's death was reassig ned to other troopers, with responsibility for the case eventually being g iven to Appellee Trooper James Custer ("Trooper Custer"). In July 2003, Trooper Custer, with the approval of Appellee Corporal James Caccimelio, destroyed the two pieces of the belt, presumably pursuant to the State Police Evidence Guidelines, which require that within three months after an investig ation is completed, the investig ating officer is to notify the custodial officer, who is to ensure that any property in State Police custody be returned to its owner, escheated to the Commonwealth, donated to the state treasury, or destroyed.
In August 2003, approximately ten months after the inquest, counsel for Appellant asked for the pieces of the belt and learned that they had been destroyed. All that remained were the photog raphs of the belt and two boxes in which the pieces of the belt had previously been stored, on which the names of two tree stand belt manufacturers had been written. Appellants filed a products liability suit in federal court in September 2003, against these two manufacturers. Appellants and the manufacturers settled the suit in November 2003, for $200,000.
In October 2003, prior to that settlement, Appellants commenced the instant action by filing a praecipe for writ of summons against the State Police and various troopers. In their sing le-count complaint filed on October 21, 2004, Appellants styled their action as one in neg ligence "for failure to preserve evidence necessary for plaintiffs' third-party claim." Appellants averred that they had suffered the following damages:
1) loss of probable expectancy of recovery in the action against the manufacturers of the belt;
2) sig nificant impairment of the action against the manufacturers of the belt;
3) deprivation of the belt resulting in Appellants' inability to obtain expert testimony; and
4) inability to prove the action against the manufacturers of the belt.
Complaint at ¶¶ 42, 45.
Appellants sought damages as follows:
[1)] . . . jointly and severally, in an amount that fully compensates the Plaintiffs and adequately punishes the Defendants; or, in the alternative, [2)] in an amount in which the damages that might have been awarded in the underlying suit are discounted by the probability of success in that case had Defendants not destroyed the evidence; or, in the alternative [3)] the statutory maximum recoverable in cases where sovereig n immunity is waived; or, in the alternative [(4)] in an amount this Honorable Court deems just.
It is thus clear from Appellants' complaint, including the two ad damnum clauses, that they seek damages measured by the effect that the loss of the belt had upon their underlying tort action against the putative manufactures. Appellants do not rely upon the alleg ations in their complaint to support a cause of action for breach of bailment independent from their claim for neg ligent spoliation. Rather, Appellants argue that the existence of the bailment created a "special relationship" that would entitle them to damages under the spoliation theory. See discussion infra. Because Appellants have expressly adopted a measure of damages based solely upon the existence of a cause of action for neg ligent spoliation of evidence, we do not find it necessary to address further the sig nificance of the existence or non-existence of a bailment.
In September 2006, Appellees moved for summary judg ment, arg uing that Pennsylvania does not recognize a cause of action for neg ligent spoliation of evidence. During the course of her presentation at the hearing on the summary judg ment motion, Appellants' counsel argued that a bailment had been created, which g ave rise to a special relationship which, in turn, would warrant holding Appellees liable for spoliation. Appellants' counsel stated it was Appellees' counsel's opinion that the only recovery available was $19.82, the value of the belt, and that such an opinion was "laug hable." Notes of Testimony, 6/22/07, at 12. Appellants' counsel further argued that the value of the destroyed property was the value of the underlying lawsuit. Id. at 23-24. After considering Appellants' response to the motion and after hearing oral arg ument, the trial court entered summary judg ment in Appellees' favor. Appellants appealed to Commonwealth Court, which affirmed. Pyeritz v. Pa. State Police, 956 A.2d 1075 (Pa.Cmwlth. 2008).
Appellants sought allowance of appeal, and we g ranted review of the following issue:
Whether Pennsylvania recognizes, and if so whether Petitioners have alleged, a cause of action for neg ligent spoliation of evidence?
Pyeritz v. Pa. State Police, 969 A.2d 1183 (Pa. 2009).
We also g ranted review of the following three issues, which we do not reach, other than as discussed in footnotes 2 supra and 7 infra, in light of our holding reg arding the neg ligent spoliation claim: (a) whether genuine issues of material fact exist which would preclude the entry of summary judg ment; (b) whether the State Police breached an implied contract for bailment of evidence which was Appellants' personal property, thus subjecting the State Police to liability if the evidence was subsequently neg ligently destroyed; and (c) whether the personal property exception to state sovereig n immunity, 42 Pa.C.S. § 8522(b)(3), applies only if the property in question causes the plaintiff's injuries, or does it suffice that plaintiff's injuries are caused by the Commonwealth's care, custody, or control of the property.
Our standard of review of the g rant of summary judg ment is de novo and our scope of review is plenary. Liss Marion, supra at 657. A motion for summary judg ment is properly made if "there is no genuine issue of any material fact as to a necessary element of the cause of action." Pa.R.C.P. 1035.2(1). Summary judg ment may be entered only when, even after examining the record in the light most favorable to the non-moving party, and resolving of all doubts as to the existence of a genuine issue of material fact against the moving party, the moving party is clearly entitled to judg ment as a matter of law. Liss Marion, supra at 657. The g rant of summary judg ment may be reversed only if the lower court committed an error of law. Id.
"Spoliation of evidence" is the non-preservation or sig nificant alteration of evidence for pending or future litig ation. When a party to a suit has been charged with spoliatingevidence in that suit (sometimes called "first-party spoliation"), we have allowed trial courts to exercise their discretion to impose a range of sanctions against the spoliator. See Schroeder v. Commonwealth Department of Transportation, 710 A.2d 23, 27 (Pa. 1998). However, we have never imposed a duty in tort not to commit neg ligent spoliation of evidence, and we now hold that such a cause of action is not viable in Pennsylvania.
See West v. Goodyear Tire Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999) ("Spoliation is the destruction or sig nificant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litig ation." (citing Black's Law Dictionary 1401 (6th ed. 1990))).
See also Creazzo v. Medtronic, Inc., 903 A.2d 24, 29-30 (Pa.Super. 2006) (affirming the g rant of summary judg ment on a manufacturing defect claim for failure to take action to preserve allegedly defective device at issue). Cf. McHug h v. McHug h, 40 A. 410, 411 (Pa. 1898) ("The spoliation of papers and the destruction or withholding of evidence which a party ought to produce g ives rise to a presumption unfavorable to him, as his conduct may properly be attributed to his supposed knowledge that the truth would operate against him.").
A cause of action in neg ligence requires a showing of four elements: (1) the defendant had a duty to conform to a certain standard of conduct; (2) the defendant breached that duty; (3) such breach caused the injury in question; and (4) the plaintiff incurred actual loss or damage. Krentz v. Consolidated Rail Corp., 910 A.2d 20, 27 (Pa. 2006). The duty element requires us to make a policy judg ment whether it is in the public interest to impose damages on those who have failed to conform their behavior to a particular standard. See Sinn v. Burd, 404 A.2d 672, 681 (Pa. 1979) ("In determining the existence of a duty of care, it must be remembered that the concept of duty amounts to no more than `the sum total of those considerations of policy which led the law to say that the particular plaintiff is entitled to protection' from the harm suffered. . . .'" (quoting Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758, 764 (1974)). In deciding whether to impose a duty, we consider the following five factors: (1) the relationship between the parties; (2) the utility of the defendant's conduct; (3) the nature and foreseeability of the risk in question; (4) the consequences of imposing the duty; and (5) the overall public interest in imposing the duty. R.W. v. Manzek, 888 A.2d 740, 747 (Pa. 2005).
See also Krentz, supra at 28 ("[D]uty is a question of whether any liability may attach to the defendant for the plaintiff's harm.").
Here, the first two factors militate against the imposition of a duty. First, the relationship between the parties was g rounded in a request by counsel for one party to an agent of the other. The acquiescence to the request resulted in the g ratuitous acceptance of control over certain personal property. While it may be understandable for members of an accident victim's family to rely upon the representations of a member of the Commonwealth's state police force, such reliance is not necessarily justifiable as a matter of law so as to constitute a partial basis for imposing a duty upon the Commonwealth itself. Further, because it was Appellants' counsel who directly eng aged with a state trooper in securing the state police barracks as the repository of the evidence, a g reater exercise of care on the part of Appellants' counsel may have been warranted in determining the limits of a reasonable expectation of retention of the evidence. Secondly, with respect to the utility of the conduct in question, Appellees did retain the evidence through the inquest and for an additional nine months. Their conduct in this reg ard served the public interest in the prompt and thoroug h investig ation of a possible crime. The expectation that the state police could be utilized to safeg uard evidence that was no longer needed for criminal investig ative purposes was misplaced and served no leg itimate police function.
Turning to the third, fourth, and fifth factors, upon review and consideration, we conclude that, on balance, the neg ative consequences of imposing a duty not to commit neg ligent spoliation of evidence outweig h any benefits the recog nition of this tort might afford. Although it may have been reasonably foreseeable to the troopers that the loss of the evidence might harm Appellants in their quest for damages in a civil lawsuit against the belt's manufacturer, we hold that as a matter of public policy, this is not a harm against which Appellees should be responsible to protect. The primary reason is that the tort would allow the imposition of liability where, due to the absence of the evidence, it is impossible to say whether the underlying litig ation would have been successful. It could very well be true in this case, for example, that if the belt had not been destroyed, it would have undermined Appellants' suit against the manufacturers and they would not have realized even the $200,000 settlement they now have in hand. Of course, in some cases, one party may have already finished testing the evidence by the time it is destroyed, or as here, photog raphs or other representations of the evidence may still exist. However, depictions are an inadequate substitute for the evidence itself, as other parties cannot inspect and test the evidence independently, which deprives them of the raw material they need to mount a potentially successful claim or defense. If we were to recognize the tort, the inability of the parties to assess meaning fully the impact of the missingevidence on the underlying litig ation would result in potential liability based on speculation.
To the extent recog nition of the tort would encourage the preservation of evidence, that benefit is outweig hed by the financial burden the tort would impose. If it were recognized, businesses and institutions would be forced to preserve evidence, at considerable expense, for a myriad of possible claims that might never be brought. Moreover, this g oal can be achieved under existing law. Although Pennsylvania law does not permit an equity action for discovery, see Cole v. Wells, 177 A.2d 77, 80 (Pa. 1962), parties to pending and prospective suits, upon an appropriate showing , may be able to obtain injunctive relief to preserve evidence. See generally Capricorn Power Co., Inc. v. Siemens Westing house Power Corp., 220 F.R.D. 429, 433-34 (W.D. Pa. 2004) (applying federal law and listing factors for obtaining such relief). In addition, parties to suits have an avenue to obtain physical evidence from non-parties, even pre-complaint, under the Rules of Civil Procedure. See Pa.R.C.P. 4003.8, 4009.21-4009.27.
Although the question we consider here is one of first impression for this Court, our holding is supported by our decisions in related contexts, by the decisions of lower Pennsylvania courts, and by the decisions of other states' courts. For example, in Bortz v. Noon, 729 A.2d 555, 564-65 (Pa. 1999), we refused to require a real estate agent, who had merely relayed the results of a home inspection, to investig ate the reliability of the inspection. Similarly, in Stupka v. Peoples Cab Co., 264 A.2d 373, 374 (Pa. 1970), we rejected an invitation to impose liability on a taxi driver, whose passenger was injured in an accident caused by another driver, for failing to obtain the name or license number of the other driver. Likewise, in Yania v. Big an, 155 A.2d 343, 346 (Pa. 1959), we held that a witness to a drowning , who was not a relative of the victim, had no duty to rescue the victim. And in Ginsburg v. Halpern, 118 A.2d 201, 202 (Pa. 1955), we declined to recognize a cause of action in tort for perjury or conspiracy to commit perjury, which essentially was a refusal to permit the imposition of liability on a party for having altered or modified evidence.
Likewise, our lower appellate courts have refused to recognize the tort of neg ligent spoliation. The Commonwealth Court rejected the tort in this case, and the Superior Court determined the tort was untenable, absent a "special relationship" between the plaintiff and defendant, in Elias v. Lancaster Gen. Hosp., 710 A.2d 65, 69 (Pa.Super. 1998). Although we disagree with the Superior Court that a "special relationship" can be sufficient to impose a duty not to commit neg ligent spoliation, our decision here still finds support in the Elias court's general rule that no such duty can be imposed in tort.
Additionally, as noted by the Massachusetts Supreme Judicial Court in Fletcher v. Dorchester Mut. Ins. Co., 773 N.E.2d 420, 424 n. 9 (Mass. 2002) (citing cases), the overwhelming majority of other states that have considered the tort have rejected it. Since Fletcher, additional jurisdictions have considered the tort, with the majority continuing to reject it. See Lips v. Scottsdale Healthcare Corp., 229 P.3d 1008, 1009 (Ariz. 2010) (no cause of action for third-party neg ligent spoliation of evidence); Downen v. Redd, 242 S.W.3d 273 (Ark. 2006) (same); Orteg a v. City of New York, 876 N.E.2d 1189, 1197 (N.Y. 2007) (same, stating "[w]e are not persuaded that it would be sound public policy to create a new tort that shifts liability from responsible tortfeasors to g overnment entities that serve as repositories of evidence that may or may not be relevant in future civil cases"). But see Hannah v. Heeter, 584 S.E.2d 560 (W.Va. 2003) (permitting claim against third parties for neg ligent spoliation of evidence, but not against first parties).
In summary, we conclude that to date, Pennsylvania law has not recognized a cause of action for neg ligent spoliation of evidence, and we decline to do so now. Because the tort would permit the imposition of liability based on speculation, would create the potential for the proliferation of litig ation, and would confer a benefit already sufficiently achievable under existing law, it is in the overall public interest not to recognize the tort. Accordingly, we affirm.
Because we hold today that Pennsylvania does not recognize a cause of action for neg ligent spoliation of evidence, it is unnecessary to determine, g iven such a non-existent cause of action, whether the personal property exception to state sovereig n immunity, 42 Pa.C.S. § 8522(b)(3), applies only if the property in question causes the plaintiff's injuries, or whether it suffices that the plaintiff's injuries are caused by the Commonwealth's care, custody, or control of the property.
Former Justice GREENSPAN did not participate in the decision of this case.
Chief Justice CASTILLE and Justice SAYLOR and BAER join the opinion.
Justice EAKIN files a concurring opinion.
Justice TODD files a concurring opinion.
While I concur with the majority's decision to affirm the Superior Court, I do not believe the analysis of neg ligent spoliation of evidence effectively disposes of all the issues on which we g ranted allocatur, namely:
(1) Whether the personal property exception to state sovereig n immunity, 42 Pa.C.S.A. § 8522(b)(3), applies only if the property in question causes the plaintiff's injuries, or does it suffice that plaintiff's injuries are caused by the Commonwealth's care, custody, or control of the property?
(2) Whether genuine issues of material fact exist which would preclude the entry of summary judg ment?
(3) Whether the State Police breached an implied contract for bailment of evidence which was Petitioners' personal property, thus subjecting the State Police to liability if the evidence was subsequently neg ligently destroyed?
(4) Whether Pennsylvania recognizes, and if so whether Petitioners have alleged, a cause of action for neg ligent spoliation of evidence?
Pyeritz v. Pa. State Police, 969 A.2d 1183, 1184 (Pa. 2009) ( per curiam).
The Commonwealth enjoys immunity from suit unless the injury in question lies within one of the exceptions provided by the leg islature. Pa. Const. art. I, § 11; 42 Pa.C.S. §§ 8521-22. Appellant contends this suit is within the personal property exception, which provides the sovereig n immunity defense may not be applied to claims for damages caused by:
(3) Care, custody or control of personal property. — The care, custody or control of personal property in the possession or control of Commonwealth parties, including Commonwealth-owned personal property and property of persons held by a Commonwealth agency, except that the sovereig n immunity of the Commonwealth is retained as a bar to actions on claims arising out of Commonwealth agency activities involving the use of nuclear and other radioactive equipment, devices and materials.
42 Pa.C.S. § 8522(b)(3). The leg islature's intent in enacting the Sovereig n Immunity Act was to shield g overnment from liability except as provided for in the statute itself, and we must apply a rule of strict construction in interpreting the exceptions. Jones v. Southeastern Pennsylvania Transportation Authority, 772 A.2d 435, 440 (Pa. 2001).
It is well established that the personal property exception only applies where the property itself causes the injury. See, e.g., Pennsylvania State Police v. Klimek, 839 A.2d 1173, 1175 (Pa. Cmwlth. 2003); Bufford v. Pennsylvania Department of Transportation, 670 A.2d 751, 753 (Pa. Cmwlth. 1996); Sug alski v. Commonwealth, 569 A.2d 1017, 1019 (Pa. Cmwlth. 1990); Nicholson v. M S Detective Agency, Inc., 503 A.2d 1106, 1108 (Pa. Cmwlth. 1986). That is not what occurred in this case. While the belt may have been involved in decedent's death, the belt was not in the care and custody of the Commonwealth at that time. The instant suit alleged injury to potential economic recovery from the destruction of the belt frag ments, not the injury resulting in the death of decedent. It was not the property itself, but rather the alleged mismanagement of the property that caused the injury complained of; thus, the personal property exception to sovereig n immunity does not apply.
Appellant's bailment arg ument, which I believe is separate from the neg ligent spoliation theory, must also fail.
"A bailment is a delivery of personalty for the accomplishment of some purpose upon a contract, express or implied, that after the purpose has been fulfilled, it shall be redelivered to the person who delivered it, otherwise dealt with according to his directions or kept until he reclaims it." Therefore, a cause of action for breach of a bailment ag reement arises if the bailor can establish that personalty has been delivered to the bailee, a demand for return of the bailed g oods has been made, and the bailee has failed to return the personalty.
Price v. Brown, 680 A.2d 1149, 1151-52 (Pa. 1996) (citations omitted).
In this case, the bailment relationship could not be established because the trooper had no authority to bind the Commonwealth in contract.
[T]he Commonwealth or its subdivisions and instrumentalities cannot be estopped "by the acts of its agents and employees if those acts are outside the agent's powers, in violation of positive law, or acts which require leg islative or executive action." As a result, "(p)ersons contracting with a g overnmental agency must, at their peril, know the extent of the power of its officers making the contract."
Central Storage Transfer Co. v. Kaplan, 410 A.2d 292, 294 (Pa. 1979) (citations omitted). The Commonwealth Court noted State Police disposition of property reg ulations did not authorize Trooper Ekis' decision to retain the belt frag ments, and actually forbade such an act. Pyeritz v. Pa. State Police, 956 A.2d 1075, 1082 n. 2 (Pa. Cmwlth. 2008). The fact that Trooper Ekis had apparent authority to keep the evidence is not dispositive; he had no actual authority to oblig ate the State Police to keep the evidence for appellant. As such, appellant's bailment claim fails.
Finally, there is no need to recognize a separate cause of action for neg ligent spoliation. Importantly, the issue on which we g ranted allocatur implies recog nition of a general cause of action for neg ligent spoliation of evidence. Within the duty analysis for such a tort, the parties' relationship, conduct utility, and the foreseeability of the risk would be unique for each situation. Thus, the question of whether to recognize a leg al duty to preserve evidence must g o beyond the parameters of the current factual scenario; not all spoliation of evidence claims involve evidence handled or mishandled by the g overnment, which often has the luxury of claiming sovereig n immunity. Rather, recog nition of a separate claim for neg ligent spoliation of evidence would have a profound impact upon private parties, requiring them to protect and preserve items that may or may not be evidence in a future civil case. Our law generally refuses to impose civil liability for failing to act for another's benefit. Consequently, there is no reason to create a per se duty requiring third parties to anticipate future civil litig ation, particularly when a sufficient remedy for such neg ligent actions is available through traditional bailment and neg ligence claims.
The personal property exception to sovereig n immunity is inapplicable, Trooper Ekis had no authority to oblig ate the Commonwealth to preserve the evidence, and there is no need to create a separate cause of action for neg ligent spoliation of evidence. There being no dispute about the material facts, I ag ree the trial court did not err in g ranting summary judg ment, and concur with the majority's decision to affirm the Superior Court.
I join the Majority Opinion with one exception. I disagree with the majority's sug gestion that Appellants' counsel, in relying on the state trooper's ag reement to retain the evidence at the state police barracks, somehow lacked due care. See Majority Opinion at 8-9. Indeed, I believe counsel can and should be able to reasonably rely on the assurances of law enforcement personnel. Nonetheless, I ag ree, for purposes of this question in tort, the state trooper's assurances do not control the issue of the Commonwealth's liability.