UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


HOLMES, RONNIE

v.

AMEREX RNT A CAR


96-7182b

D.C. Cir. 1999


*	*	*


Ginsburg, Circuit Judge: We previously determined that  the answers to
two novel questions of District of Columbia  law would be dispositive
of this appeal and therefore certified  those questions to the
District of Columbia Court of Appeals.  See Holmes v. Amerex
Rent-a-Car, 113 F.3d 1285, 1286  (1997). The questions were:


Under District of Columbia law, may a plaintiff recover  against a
defendant who has negligently or recklessly  destroyed or allowed to
be destroyed evidence that would  have assisted the plaintiff in
pursuing a claim against a  third party?


If a plaintiff may proceed under such a theory, what  standard of
proximate cause must he meet?


The District of Columbia Court of Appeals has now given its  answers:


In response to the first certified question, we hold that  negligent or
reckless spoliation of evidence is an indepen- dent and actionable
tort in the District of Columbia.


In response to the second certified question, we hold that  in order to
demonstrate that the defendant's actions  proximately caused the harm
alleged, plaintiff must  show, on the basis of reasonable inferences
derived from  both existing and spoliated evidence, that (1) the
plain- tiff's ability to prevail in the underlying lawsuit was 
significantly impaired due to the absence of the spoliated  evidence;
and (2) there had been a significant possibility  of success in the
underlying claim against the third  party.


Holmes v. Amerex Rent-a-Car, 710 A.2d 846, 847 (D.C. 1998).  We now
apply the law of the District, as clarified, to the facts  of this


I. Background


The essential facts, as set forth in our prior opinion, are as 
follows. In November, 1988, while driving a car he had  rented from
Amerex Rent-a-Car, Ronnie Holmes was in- volved in an accident that
left him seriously injured. He 


asked Amerex, which had taken possession of the wrecked car  following
the accident, to hold it so that he could have it  inspected by an
expert. Amerex agreed to leave the car  undisturbed until June 15,
1989. On June 14, an Amerex  claims representative agreed to sell the
car to Holmes for  $200. Unbeknownst to the claims representative,
however,  another Amerex employee had already sold the car to a 
salvage company, which had destroyed its engine. Without  the engine,
it was impossible to determine whether the car  was defectively
designed or manufactured or maintained in a  way that might have


Holmes sued Chrysler (the manufacturer of the car) and  Amerex in the
District of Columbia Superior Court, alleging  that Chrysler had
negligently designed, and that Amerex had  negligently maintained, the
engine of the car. After Chrysler  removed the case to federal court,
Holmes filed an amended  complaint naming Amerex as the sole
defendant. The  amended complaint asserts claims for negligent
spoliation of  evidence and tortious interference with Holmes's
prospective  civil action against Chrysler (again by spoliation of
evidence).  In support of these claims Holmes submitted an affidavit 
from an expert in biomechanics, crashworthiness, and acci- dent
reconstruction stating that "if the vehicle were available  in the
same condition that it was immediately following the  accident,
[Holmes] would have a substantial possibility of  proving that the
[car] at issue was defectively designed and/or  manufactured and/or
maintained." The district judge grant- ed summary judgment to Amerex
on this claim, concluding  that Holmes had not met what it
(erroneously) thought was  the law of spoliation in the District of
Columbia, namely, that  a plaintiff must demonstrate that, were it not
for the destruc- tion of the evidence, it is more probable than not


Holmes's amended complaint also included counts for  breach of contract
and promissory estoppel arising out of  Amerex's sale of the car to
the salvage company. The district  court referred those claims to a
magistrate judge. After a  bench trial, the magistrate first found for
Holmes on the  contract claim but awarded him only nominal damages


cause his "purpose in seeking possession of the salvage was  not for
its intrinsic value but solely for its evidential [sic]  value in a
potential tort action against the manufacturer";  when the district
court had granted summary judgment in  favor of Amerex on the
spoliation claims, it had "removed the  basis for any damages [Holmes]
could claim" arising out of  Amerex's breach of contract. The
magistrate then rejected  Holmes's promissory estoppel claim, upon the
ground that  Holmes had been "less than diligent in protecting his own
 interests with respect to an inspection of the salvage of the 
vehicle." The district court adopted the magistrate's report  and


II. Analysis


Holmes appeals the district court's grant of summary judg- ment for
Amerex on the spoliation claims, the magistrate's  failure to award
him more than nominal damages for Ame- rex's breach of contract, and
the magistrate's denial of his  promissory estoppel claim.


In answer to our certification of questions of law, the  District of
Columbia Court of Appeals enumerated the ele- ments of a cause of
action for negligent or reckless spoliation  of evidence, as


(1) existence of a potential civil action; (2) a legal or  contractual
duty to preserve evidence which is relevant  to that action; (3)
destruction of that evidence by the  duty-bound defendant; (4)
significant impairment in the  ability to prove the potential civil
action; (5) a proximate  relationship between the impairment of the
underlying  suit and the unavailability of the destroyed evidence; (6)
 a significant possibility of success of the potential civil  action
if the evidence were available; and (7) damages  adjusted for the
estimated likelihood of success in the  potential civil action.


710 A.2d at 854. The evidence presented in this case, viewed  in the
light most favorable to Holmes, would allow a reason- able juror to
conclude that (1) Holmes had a potential civil  action arising out of
the accident in which he was involved; 


(2) Amerex had a contractual obligation to preserve the car  for
Holmes; (3) Amerex negligently allowed the car to be sold  and
dismantled; (4) Holmes's ability to prove his case in the  potential
civil action was significantly impaired; (5) the im- pairment of the
underlying suit was proximately related to  the dismantling of the car
and the attendant loss of evidence  relating to the design,
manufacturing, and maintenance of the  car; (6) Holmes would have had
a significant possibility of  success in the potential civil action if
the evidence were  available; and (7) Holmes suffered damages.


In concluding that a reasonable juror could find that  Holmes would
have had a "significant possibility" of success  in his underlying
lawsuit if the evidence had not been lost, we  are mindful that the
District of Columbia has, unlike some  states, see, e.g., Smith v.
Superior Court, 198 Cal. Rptr. 829,  836 (Cal. Ct. App. 1984),
rejected the requirement that a  plaintiff demonstrate a "reasonable
probability" of success.


A "reasonable probability" of success still requires a  showing that
success was probable. In our view, this  comes too close to requiring
that the plaintiff show  success by what amounts to "a preponderance
of the  evidence." ... [T]his standard is too high. Instead, we 
believe we should require that the plaintiff show that the  underlying
lawsuit enjoyed a significant possibility of  success. We choose this
term as it implies a showing  higher than the already recognized
standard of "signifi- cant evidence" but lower than the standard of
"prepon- derance of the evidence." The plaintiff must demon- strate a
substantial and realistic possibility of succeeding,  but need not
cross the threshold of demonstrating that  such success was more
likely than not, something that  would be realistically impractical of


710 A.2d at 852.


Holmes submitted the affidavit of an expert in accident  reconstruction
who, after reviewing photographs of the car  taken after the accident,
determined that the car appears to  have lacked reasonable
"crashworthiness." He therefore con- cluded that "if the vehicle were
available in the same condi-


tion that it was immediately following the accident, [Holmes]  would
have a substantial possibility of proving that the [car]  ... was
defectively designed and/or manufactured and/or  maintained." We think
a reasonable jury could find that the  evidence that led Holmes's
expert to conclude that he would  have a "substantial possibility" of
success gives rise to the  "significant possibility" of success Holmes
needs in order to  recover for the negligent spoliation of his
evidence. It follows  that the district court erred in granting
summary judgment  in favor of Amerex on the negligent spoliation
claim. It  follows as well that the magistrate judges's decision to
award  Holmes only nominal damages on his breach of contract  claim,
upon the premise that his spoliation claim could not  succeed, must be
reconsidered in light of the ultimate resolu- tion of the spoliation


Turning to the promissory estoppel count, we affirm the  judgment in
favor of Amerex. The judge first found that  Holmes unreasonably
failed to inspect the car despite having  had ample opportunity to do
so. He then held that judgment  for Amerex was appropriate because
promissory estoppel  "requires the promisee to have acted reasonably
in justifiable  reliance on the promise." Although Holmes urges us to 
reverse the judge's decision, he challenges neither step of this 
reasoning. Instead, he focuses upon evidence showing that  he relied
upon Amerex's representation that it would pre- serve the car and that
he was injured when that representa- tion proved false. That may be
so, but it does nothing to  undermine the magistrate's finding that he
was unreasonably  dilatory in inspecting the car. Therefore, we are
constrained  to approve the magistrate's denial of the claim based
upon  promissory estoppel.


III. Conclusion


In view of the answer given by the District of Columbia  Court of
Appeals to the questions of law we certified, we  reverse the grant of
summary judgment in favor of Amerex  on the claim for negligent
spoliation of evidence, vacate the  award of nominal damages on the
claim for breach of con-


tract, and affirm the judgment of the district court on the  claim
based upon promissory estoppel. This matter is re- manded to the
district court for further proceedings consis- tent with this


So ordered.