Before Judges Havey, Wefing and Lefelt.
On appeal from Superior Court of New Jersey, Law Division, Ocean County,
The opinion of the court was delivered by: Havey, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this personal injury action, judgment was entered on a jury verdict in the amount of $38,000 and $7,500, in favor of plaintiffs Dolores and Vincent Gilleski respectively.*fn1 Plaintiff sustained injuries while in a hospital x-ray room when a chair collapsed and she fell to the floor. After the accident, defendant Community Medical Center disposed of the chair. Over defendant's objection, the trial court instructed the jury on the theory of negligent spoliation of evidence; that is, defendant negligently disposed of the chair which was critical evidence in a potential law suit against the chair manufacturer. The jury concluded that plaintiffs met each element of the tort and returned a verdict in plaintiffs' favor.
No New Jersey appellate court has recognized the tort of negligent spoliation of evidence. We conclude that negligent spoliation need not be recognized as a separate tort, since such a claim may be resolved by applying traditional negligence principles. Applying those principles, we hold that defendant owed no duty to preserve the chair as evidence. Consequently, the trial court erred in denying defendant's motion to dismiss the case at the close of the proofs. See R. 4:37-2(b). We reverse and remand for entry of judgment dismissing plaintiffs' complaint.
On August 26, 1995, plaintiff accompanied her eighteen-month old niece to defendant Community Hospital to have the niece's finger x-rayed. While in an x-ray room, plaintiff sat on a chair with her niece on her lap while a technician attempted to x-ray the niece's hand. The chair collapsed and plaintiff fell, injuring her back. The left front leg of the chair had broken. Steven Abbott, the x-ray technician, testified that as he was taking the child from plaintiff the chair gave way when plaintiff stood to get up. Two incident reports were marked into evidence, both dated August 26, 1995. The first, signed by plaintiff and, initially, by Steven Abbott,*fn2 indicated that "chair broke while sitting & holding child." The second report, signed by Abbott and William Goodman, a supervisor in the radiology department, states that "chair leg broke while said person was trying to get up. Was not holding child." Both reports state that plaintiff had suffered an injury to her lower back.
The broken chair was placed in the office of Polly Quinn, the Acting Director of Radiology. Goodman testified that, in accordance with hospital policy, the chair was preserved for inspection, and remained in Quinn's office for possibly three or four weeks before it was discarded. Goodman did not know whether the chair had ever been inspected.
Dolores Merceron, the hospital's Regional Risk Manager, testified that she was notified of the August 26 incident on August 28, 1995, when she received the incident report signed by Abbott and Goodman. She noted that the proper procedure in such instances is for the staff to "isolate" and "mark" the furnishing or equipment involved in an accident. However, this policy was for the purpose of inspection to determine whether the furnishing should be repaired or discarded, not for the purpose of preserving it as evidence in a potential law suit.
Plaintiff Vincent Gilleski, plaintiff's husband, called Merceron on two occasions within days of the accident. Gilleski complained that the hospital had failed to provide adequate medical care to plaintiff, including taking x-rays of her back. However, no mention was ever made during these calls of a potential law suit against the hospital or the manufacturer of the chair as a result of plaintiff's fall, nor was any request made that the hospital preserve the chair as evidence. Defendant was not given notice of a potential law suit until it received a letter from plaintiffs' attorney dated October 21, 1996, fourteen months after the accident. The letter made no mention of preservation of the chair or that plaintiffs intended to institute suit against the manufacturer of the chair. When she received the letter, Merceron checked and determined that the hospital had already disposed of the chair.
Plaintiffs' case was presented to the jury based on two theories: (1) defendant's negligence in permitting plaintiff to utilize a defective chair; and (2) negligent spoliation of evidence; that is, defendant negligently disposed of the chair which was critical evidence in a potential law suit against the chair manufacturer.
The trial court denied defendant's motion to dismiss the negligent spoliation charge, stating that according to New Jersey case law, a cause of action for such a tort is recognized. The court observed that an action for negligent spoliation consists of six elements: (1) the existence of a potential law suit; (2) a legal or contractual duty or an undertaking to preserve the evidence that is relevant to the potential law suit; (3) the negligent destruction or loss of that evidence; (4) significant impairment in the ability to prove the cause of action; (5) causal relationship between the evidence negligently destroyed or lost and the inability to prove the law suit; and (6) damages. The court decided two of the elements as a matter of law (elements (4) and (5)), holding that plaintiffs had satisfied these elements. The jury was instructed to decide:
(1) Did there exist a potential law suit?
(2) Was there a legal or contractual duty or undertaking to preserve evidence for ...