The opinion of the court was delivered by: D'amico
Plaintiff Joseph Callahan (Callahan) alleges that on December 31, 1993, he was employed at the Woodbridge, New Jersey, store of defendant Home Depot U.S.A., Inc. (Home Depot). Callahan and another Home Depot employee, who was operating a fork lift or reach truck, were moving a pallet of storm doors between a storage rack and the selling floor. While doing so, the pallet and its load of doors tipped off the forks of the reach truck and struck Callahan, rendering him unconscious and causing him serious injuries.
Callahan originally filed suit against Stanley Works (Stanley), improperly pled as The Stanley Corporation, alleging negligent and careless packaging and shipping of the doors to Home Depot's store in Woodbridge, resulting in the creation of an unsafe and dangerous condition. Subsequently, Callahan amended the complaint to name Home Depot as a direct defendant, alleging that Home Depot negligently and carelessly lost or destroyed the pallet which may have been the instrument of the injury.
Stanley Works moves for summary judgment, arguing that the report of Callahan's expert constitutes a net opinion and is therefore inadmissible. *fn1 Home Depot moves to dismiss Callahan's complaint, arguing that New Jersey does not recognize the tort of negligent spoliation of evidence.
NEGLIGENT SPOLIATION OF EVIDENCE
When determining whether to dismiss a complaint pursuant to Rule 4:6-2(e), "a reviewing court 'searches the complaint in depth and with great liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.'" Printing Mart v. Sharp Electronics Corp., 116 N.J. 739, 746, 563 A.2d 31 (1989) (quoting Di Cristofaro v. Laurel Grove Memorial Park, 43 N.J. Super. 244, 252, 128 A.2d 281 (App. Div. 1957)). A motion to dismiss for failure to state a claim should only be granted in the rarest of instances and if granted, it should be without prejudice in order to allow the plaintiff to file an amended complaint. See Printing Mart, supra, 116 N.J. at 772.
In the present case, Callahan alleges in count four of his complaint that he has been damaged in his ability to demonstrate and prove the liability of Stanley due to Home Depot's alleged loss or misplacement of the subject pallet. The loss prevention supervisor employed by Home Depot, Michael Ippolito, states in his deposition testimony that he placed an evidence tag on the subject pallet shortly after the accident and put it away. Home Depot needed the pallet to investigate Callahan's workers' compensation claim in order to determine the cause of the accident. The complaint alleges that Home Depot lost or misplaced the pallet, thereby impairing Callahan's ability to prove his negligence claim against Stanley.
To date, New Jersey has not recognized the tort of negligent spoliation of evidence. In Hirsch v. General Motors Corp., 266 N.J. Super. 222, 628 A.2d 1108 (Law Div. 1993), the trial court noted:
New Jersey courts have not recognized negligent spoliation of evidence as an independent tort. See Nerney v. Garden State Hosp., 229 N.J. Super. 37, 550 A.2d 1003 (App. Div. 1988). In Nerney v. Garden State Hosp., supra, plaintiff alleged that defendant Dr. Eugene Cohen negligently misdiagnosed a wrist fracture. Plaintiff sent his X-rays, which Dr. Cohen had originally examined, to Dr. Paul Friedman. Dr. Friedman concluded that the X-rays evidenced a fractured wrist, but they were later lost or misplaced and unavailable for trial. The Appellate Division stated that "the negligent loss of evidence is comparable to a party's failure to comply with discovery obligations, which may result in an order barring introduction of evidence at trial . . ."
In Viviano v. CBS, Inc., 251 N.J. Super. 113, 597 A.2d 543 (App. Div. 1991), a malfunctioning machine used to press plastic phonograph records malfunctioned, destroying three and a half of plaintiff's fingers. Defendant employer failed to produce a potentially incriminating memorandum which plaintiff needed in order to recover for her injuries in a products liability action against the manufacturer. The Appellate Division held that defendants who fraudulently conceal information relevant to a lawsuit for work-related injuries are liable in damages to the injured employee. In doing so, the Viviano court stated:
Plaintiff's cause of action in the present case is analogous to a recently recognized cause of action for destruction of evidence which has been dubbed 'spoliation of evidence'....The elements of that tort are:
(1) pending or probable litigation involving the plaintiff; (2) knowledge on the part of the defendant that litigation exists or is probable; (3) willful or, possibly negligent destruction of evidence by the defendant designed to disrupt the plaintiff's case; and (5) damages ...