In a negligent spoliation case plaintiff is only required to show reasonable probability that he would have won his negligence action had he been able to produce the alleged defective item. In Schaeffer v. Universal Scaffolding and Equipment, LLC, 839 F3d 599 (7th Cir. 2016). Plaintiff was injured when a defective piece of scaffolding struck him on his head. The court first sustained summary judgment against a defendant-manufacturer because plaintiff could not produce the actual defective piece. However, the court reversed a summary judgment against defendants-employer based on a spoliation theory. When plaintiff learned that the piece of scaffolding that hit him had been lost, he added claims for negligent spoliation of evidence against his employer and against the company that had been engaged to build the scaffolding.
Defendants motion for summary judgment was denied. Then, as trial approached defendants filed a joint motion in limine to exclude any evidence for argument that the scaffolding was defective the district court granted the motion in limine. The Court of Appeals held that the plaintiff raised a genuine issue of fact as to whether, with the missing scaffolding they would have had a reasonable probability of success on their underlying claim. The court pointed out:
“If Schaeffer’s experts had had the opportunity to test the missing piece, they might have been able to confirm that the piece had defects that had gone unnoticed by the lay witnesses at the job site. But the loss of the piece deprived Schaeffer of the opportunity to develop his important proof.”
The court reversed the grant of summary judgment in the spoliation claims and remanded for proceedings consistent with the opinion.