Case Law Summaries

McGoey v. Rogers

• Opinion Date: October 23, 2001
• Real Property Law
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CONTRACTS; DAMAGES—Repairing of building defects by a new property owner before its seller or inspector has an opportunity to examine the alleged problems can bar the new owner from collecting damages from them unless other evidence of the damage, such as photographs, would enable the other party to defend the lawsuit.

A homeowner discovered, after closing, that hidden behind a pegboard there were large cracks in the foundation. The homeowner claimed that the previous owner had prior knowledge of the cracks and intentionally and fraudulently concealed the damage. The homeowner also claimed that the home inspector was negligent in failing to discover the cracks in the foundation. The homeowner sued. While the lawsuit was pending, the homeowner was advised by its expert that the basement wall needed to be replaced prior to the beginning of winter or it would be in danger of collapse. The homeowner took pictures and a videotape of the condition of the basement wall and then commenced repair of the wall. The homeowner did not notify the previous owner or the home inspector that it was replacing the basement wall. The previous owner and the home inspector did not inspect the damage before the wall was replaced. The previous owner and the home inspector then made a motion to preclude the homeowner from introducing evidence at trial about the previous condition of the basement wall because of “spoliation of evidence.” They argued that the homeowner had a duty to preserve the evidence of damage so that they could have an opportunity to inspect the damage and prepare a defense for trial. The homeowner contended that the previous owner and the home inspector never asked to inspect the wall and that the homeowner provided the previous owner and the home inspector with numerous photographs, videotapes, and several cinder blocks from the original foundation which could be used to prepare a defense for trial. The lower court excluded the introduction of the homeowner’s evidence. On reconsideration, the lower court again rejected the homeowner’s argument. On appeal, the Appellate Division reversed, and remanded. The Appellate Division found that by barring the introduction of evidence of the damage, the lower court effectively dismissed the homeowner’s complaint. Before dismissing a complaint, a court must consider if there are any less severe remedies available. The previous owner and the home inspector did not review the photographs, videotapes or other evidence supplied, so it was unclear whether or not those items would be helpful in defending the lawsuit. Until the previous owner and the home inspector reviewed that evidence, it was premature to dismiss the homeowner’s claims for failure to preserve the damaged basement wall.

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