stated that the condition of the subject ladder in the
photographs was the same as when the subject ladder was used by
himself and plaintiff. Global Terminal & Container Services, Inc.
and the Bayonne Police Department each prepared an accident
report. Neither of the reports mention broken or loose rungs on
the ladder. See Defs.' Br. at 4.
Cihangiroglu stated that once he learned of the accident, he
notified defendants' claims representatives, Ship Owners Claim
Bureau, who sent a Marine Surveyor ("defendants' surveyor") on
board the vessel. Defendants surveyor did not take a statement
from any of the witnesses to the accident, including Cihangiroglu
and the four (4) seamen in the hatch.
Defendants' surveyor, however, took photographs of the ladder
lying flat on a snowy icy deck the same day that the accident
occurred.*fn7 Plaintiffs claim that defendants knew from the
onset both that there was a claim that this accident was caused
by a defective ladder, supplied by the ship to a longshoreman and
that a lawsuit would follow. Plaintiffs contend that the ladder
disappeared after plaintiff filed this Federal Complaint in
September 1997. Plaintiffs claim further that they were not
provided with an opportunity to examine the photographs, which
the surveyor took, until some time after the accident, pursuant
to the direction of Magistrate Haneke. Plaintiffs allege that it
would be impossible for them to determine the current condition
of the ladder, and to determine whether or not the ladder
required a metallurgical inspection.
Plaintiffs stated that after looking at the photographs of the
ladder, it is clear that this ladder should not have been used at
any time prior to, or subsequent to, plaintiff's accident.
Furthermore, plaintiffs' expert, John Keefe, stated that when an
accident occurs and the offending parties are aware of the
accident, the vital evidence, such as the ladder in this case,
should be kept safe, taken off of the ship, and put into a place
where it could be produced for inspection by the parties'
experts. Even so, Keefe confirmed that in his experience, where
the subject apparatus is not available for litigation,
photographs of the apparatus are sufficient. See Keefe
Dep.,*fn8 Ex. K at 100-02.
Defendants claim that Luard & Company issued a report, dated
March 8, 1996, with photographs, which declared that the subject
ladder "had uneven side rails, . . . rungs [that] . . . turn[ed]
in their sockets, and . . . [that some of the rungs had the]
plastic coating shifted from the center towards one side." Defs.'
Br. at 3-4. Luard & Company reported that it did not note that
anything was wrong with the ladder.
Plaintiffs commenced this lawsuit on May 8, 1997, approximately
fifteen months following the subject events. As of September
1996, the ladder remained on board the vessel and was in use by
the vessel's crew*fn9. Defendants' claims adjuster contends that
the ladder was aboard the vessel as late as July 1997. According
to defendants, plaintiffs did not request inspection of the
ladder until February 17, 1998, approximately two years after the
accident. Defendants claim also that plaintiffs' lawyers failed
to make a request to defendants' insurer's claims adjuster to
produce the ladder or to have it tested by a metallurgist. Also,
defendants claim that plaintiffs never requested that defendants
"hold and keep safe" the subject ladder. Plaintiffs concede,
however, that they are "probably not" prevented . . . from
proving at trial a necessary element of their underlying cause of
action for negligence by the absence of the ladder. Unger Decl.,
Ex. B at 1-5.
Defendants argue that New Jersey state law does not recognize
causes of action for spoliation of evidence relating to claims
between the plaintiff and the defendant to a primary action.
Defs.' Br. at 5. Specifically, defendants assert that New Jersey
has not recognized the causes of action for either negligent or
intentional spoliation of evidence claims "when the spoliation
affects the ability of a party to the primary action to establish
its claims." Id. Defendants contend further that New Jersey
recognizes spoliation of evidence claims only "when the
spoliation cause of action between a plaintiff and defendant in
the primary action is based on either the plaintiff's or
defendant's ability to properly prosecute a claim against a
In Counts three and four of plaintiffs' Amended Complaint,
dated July 27, 1998, plaintiffs allege negligent spoliation and
intentional spoliation, respectively. See Pls.' Am. Compl. at
3-4. Defendants have moved for partial summary judgment on the
third and fourth causes of action in plaintiffs' Amended
Complaint. For the following reasons, this Court grants
defendants' motion for partial summary judgment.
STANDARD FOR SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56(c) provides for summary
judgment when the moving party demonstrates that there is no
genuine issue of material fact, and the evidence establishes the
moving party's entitlement to judgment as a matter of law. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548,
91 L.Ed.2d 265 (1986); Orson, Inc. v. Miramax Film Corp.,
79 F.3d 1358, 1366 (3d Cir. 1996). In making this determination, the
court must draw all reasonable inferences in favor of the
non-movant. See Hullett v. Towers, Perrin, Forster & Crosby,
Inc., 38 F.3d 107, 111 (3d Cir. 1994); National State Bank v.
Federal Reserve Bank of New York, 979 F.2d 1579, 1581 (3d Cir.
Once the moving party has satisfied its initial burden, the
party opposing the motion must establish that a genuine issue as
to a material fact exists. See Jersey Cent. Power & Light Co. v.
Township of Lacey, 772 F.2d 1103, 1109 (3d Cir. 1985). The party
opposing the motion for summary judgment cannot rest on mere
allegations, but must present actual evidence that creates a
genuine issue as to a material fact for trial. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986);
Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125,
1130-31 (3d Cir. 1995). "[U]nsupported allegations in [a
plaintiff's] memorandum and pleadings are insufficient to repel
summary judgment." Schoch v. First Fidelity Bancorporation,
912 F.2d 654, 657 (3d Cir. 1990); see also Fed.R.Civ.P. 56(e)
(requiring non-moving party to "set forth specific facts showing
that there is a genuine issue for trial"). In determining whether
there are any issues of material fact, the Court must resolve all
reasonable doubts as to the existence of a material fact against
the moving party. See Smith v. Pittsburgh Gage and Supply Co.,
464 F.2d 870, 874 (3d Cir. 1972). "In other words, the inquiry
involves determining, whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law." Pitak
v. Bell Atlantic Network Svcs., Inc., 928 F. Supp. 1354, 1366
(D.N.J. 1996) (citations and internal quotations omitted). The
Court will address each claim separately.
A. INTENTIONAL SPOLIATION OF EVIDENCE
The tort of Spoliation of Evidence has its origin in California
in Smith v. Superior Court. 151 Cal.App.3d 491, 198 Cal.Rptr. 829
(1984). In that case, the plaintiff was injured when the left
rear wheel flew off of a van and smashed through the plaintiff's
car's windshield. See id. at 494,
198 Cal.Rptr. 829. The impact forced glass to hit the plaintiff
in her eyes and face, causing permanent blindness in both eyes
and impairing her sense of smell. See id. The plaintiff was
permitted to amend her personal injury complaint to allege
Tortious Interference with Prospective Civil Action By Spoliation
of Evidence against the car dealer who had customized the van
with special wheels. See id. at 494-95, 198 Cal.Rptr. 829. The
car dealer had promised to maintain the tire and other automotive
parts of the van, (i.e. physical evidence), but had failed to do
so.*fn10 See id. at 494, 198 Cal.Rptr. 829. The court held
that there were "sound and practical reasons for allowing
[plaintiff's] cause of action for intentional spoliation of
evidence." Id. at 503, 198 Cal.Rptr. 829. A number of
jurisdictions have followed California's lead. See e.g., Holmes
v. Amerex Rent-A-Car, 710 A.2d 846 (D.C.App. 1998) (certifying
answer that, for first time, DC recognizes tort of negligent
spoliation of evidence); Coleman v. Eddy Potash, Inc., 120 N.M. 645,
905 P.2d 185, (1995) (stating New Mexico recognizes tort of
intentional spoliation of evidence); Smith v. Howard Johnson
Co., 67 Ohio St.3d 28, 615 N.E.2d 1037, (1993) (certifying
answers to District Court that Ohio would recognize tort of
negligent spoliation of evidence); Hazen v. Mun. of Anchorage,
718 P.2d 456 (Alaska 1986) (stating Alaska recognizes intentional
spoliation tort where defendant altered tapes); Boyd v.
Travelers Ins. Co., 166 Ill.2d 188, 209 Ill.Dec. 727,
652 N.E.2d 267 (1995) (stating claim for negligent spoliation could be
stated under existing Illinois law).
Other Courts, however, have declined to recognize the tort of
spoliation. See, e.g., Elias v. Lancaster Gen. Hosp.,
710 A.2d 65 (Pa.Super. 1998) (stating Pennsylvania does not recognize tort
of negligent spoliation); Monsanto Co. v. Reed, 950 S.W.2d 811
(Ky. 1997) (stating that Kentucky will not recognize new cause of
action of spoliation of evidence); Beers v. Bayliner Marine
Corp., 236 Conn. 769, 675 A.2d 829 (1996) (stating that at most,
negative inference may arise for spoliation of evidence); Koplin
v. Rosel Well Perforators, Inc., 241 Kan. 206, 734 P.2d 1177
(1987) (stating absent contract, agreement, or special duty to
preserve evidence, Kansas will not hold a third party liable for
spoliation of possible evidence for another party to aid that
other party in some future legal action against a third-party.)
The California Supreme Court, however, in a case subsequent to
Smith, noted that the tort of spoliation is teeming with
incertitude. In Youst v. Longo, the California Supreme Court
stated that "Smith may represent the most speculative advantage
that has heretofore been recognized by the California appellate
courts." 233 Cal.Rptr. 294, 729 P.2d 728, 734-35 (1987). Even so,
New Jersey, influenced by California's Smith and its progeny,
recently recognized the tort of spoliation of evidence. Prior to
1991, spoliation claims were not recognized in New Jersey. In
1991, following California's lead, New Jersey, in Viviano v.
CBS, Inc., recognized a tort of fraudulent concealment.
251 N.J. Super. 113, 597 A.2d 543 (App. Div. 1991), cert. denied,
127 N.J. 565, 606 A.2d 375 (1992).
The Appellate Division in Viviano was presented with a claim
of fraudulent concealment of evidence. See id. at 119-120,
597 A.2d 543. In Viviano, the plaintiff worked for the defendant
CBS and operated a record press, which through an accident caused
by a defect in a component part, destroyed three and a half of
her fingers. See id. at 117, 597 A.2d 543. The plaintiff sued
CBS for fraudulently concealing a memo containing information
relevant to her product liability suit against the manufacturer
of the defective part of the press. See id. at 119-20,
597 A.2d 543. The Appellate Division analogized the plaintiff's fraudulent
concealment cause of action to, and adopted the elements of, "a
recently recognized cause of action for destruction of evidence
which has been dubbed `spoliation of evidence.'" Id. at 125,
597 A.2d 543. Thus, the Appellate Division substituted
concealment of evidence with destruction of evidence, and stated
that "[i]mmunizing the willful destruction or concealment of
evidence would not further the policy of encouraging testimonial
candor." Id. at 126, 597 A.2d 543. In addition, the court
stated that "[d]estruction of evidence known to be relevant to
pending litigation violates the spirit of liberal discovery.
Intentional destruction of evidence manifests a shocking
disregard for orderly judicial procedures and offends traditional
notions of fair play." Id. at 127, 597 A.2d 543. Thus, the
Appellate Division held that an employer "who fraudulently
concealed information relevant to another employee's suit against
third parties for work-related [personal] injuries are answerable
in damages to the injured employee." Id. at 117, 597 A.2d 543.
Viviano delineated the elements of the tort of spoliation of
evidence as follows: (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; (4) disruption of the plaintiff's
case; and (5) damages proximately caused by the defendant's acts.
251 N.J. Super. 113 at 126, 597 A.2d 543 (citations omitted).
In Larison v. City of Trenton, a federal court here in
Trenton faced the issue of whether to permit a plaintiff to amend
his complaint to add tort claims for negligent and intentional
spoliation of evidence. 180 F.R.D. 261 (D.N.J. 1998). There, the
court noted that
the existence of an affirmative cause of action for
spoliation of evidence is a matter of state law. As
such, this court must be guided by the decisions of
New Jersey's highest court. See Gares v. Willingboro
Tp., 90 F.3d 720, 725 (3d Cir. 1996). Although
several Appellate Division cases have recognized the
affirmative cause of action for fraudulent
concealment of evidence established in
Viviano*fn11, there is no New Jersey Supreme Court
case which has considered this newly recognized tort.
Nor do the few cases considered by the federal courts
in the District of New Jersey offer much guidance.
See Trump Taj Mahal Assoc. v. Costruzioni
Aeronautiche Giovanni, 761 F. Supp. 1143 (D.N.J.
1991) (declining to adopt the tort of intentional
spoliation prior to adoption by the New Jersey state
courts.) [, aff'd 958 F.2d 365 3d 1992), cert.
denied, 506 U.S. 826, 113 S.Ct. 84, 121 L.Ed.2d 47
(1992)]; PBA Local No. 38 v. Woodbridge Police
Dep't, 832 F. Supp. 808 (D.N.J. 1993) (noting that it
is not entirely clear that New Jersey recognizes the
tort of spoliation of evidence, but assuming it does,
[it recognizes the tort] in the limited context of
ruling on motion to amend to add a claim for
spoliation of evidence).
Larison, 180 F.R.D. at 265. Because the New Jersey Supreme
Court had not yet faced this issue, the New Jersey District Court
in Larison determined that "this court must base its decision
on a prediction of how the New Jersey Supreme