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Swick v. New York Times Company

February 07, 2003

JOHN J. SWICK, JR., AND DEBORAH SWICK, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
THE NEW YORK TIMES COMPANY, DEFENDANT-RESPONDENT, AND NOLAN PRODUCTS, INC., NOLAN INDUSTRIES, INC., NOLAN SYSTEMS, INC., XYONICZ CORPORATION, CUTLER HAMER, INC., AND EATON CORPORATION, DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-10516-98.

Before Judges Wallace, Jr., Ciancia, and Axelrad

The opinion of the court was delivered by: Wallace, Jr., J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: December 17, 2002

Plaintiff John Swick, Jr. *fn1 and his wife, Deborah Swick, appeal from a judgment of the Law Division dismissing their claim against defendant, The New York Times Company. We affirm.

The facts in this controversy are undisputed. On November 15, 1996, plaintiff seriously injured his left arm, hand, and fingers when he attempted to inspect and repair the newspaper conveyor system of his employer, The New York Times (The Times). Plaintiff filed suit against various defendants. In his amended complaint, plaintiff alleged that defendants Nolan Products, Inc., Nolan Industries, Inc., and Nolan Systems, Inc. (collectively Nolan), and defendant Cutler Hamer, Inc. (Cutler), were negligent in the design, manufacture, repair, maintenance, and inspection of the conveyor system which caused his injuries. Plaintiff further alleged that defendant Xyonicz Corporation merged with and is the successor-in-interest to Nolan and is responsible for the liabilities of Nolan, and that defendant Eaton Corporation is the successor-in-interest to Cutler and is responsible for the liabilities of Cutler.

Plaintiff was aware as early as April 1997 that the Times intended to dismantle the conveyor due to a plant closing. In preparation for filing a products liability action against Nolan and Xyonicz, plaintiff's attorney wrote the Times, beginning in April 1997, requesting that plaintiff be afforded an opportunity to inspect the equipment. After no reply was forthcoming, plaintiff's counsel wrote on July 11, 1997, that "we are continuing our request to inspect the machinery involved in the above referenced accident before it is dismantled and moved."

On August 5, 1997, plaintiff's attorney spoke with Vernon Byrd of the Times's legal department. Byrd advised counsel to make a written request regarding the preservation and inspection of the equipment. Plaintiff's attorney then sent a certified letter and facsimile requesting that the Times advise plaintiff "(i) whether the machine has been preserved, (ii) where it is located, (iii) when it is available for inspection, and (iv) to whom we should address our request to inspect the machine." Plaintiff's attorney followed up this request, but Byrd never arranged an inspection of the equipment.

On November 20, 1997, plaintiff filed a petition in New York against the New York Times seeking pre-lawsuit discovery. By letter dated January 15, 1998, the Times indicated it no longer possessed the subject conveyor and had sold it to the Manila Post Publishing Company in the Philippines. On January 16, 1998, the New York court ordered the Times to provide additional information about the conveyor, and on January 30, 1998, the Times informed plaintiff's counsel that the conveyor had been sold on September 17, 1997, and removed by the Manila Post in the fall of 1997. The letter also listed the address of the buyer in the Phillippines. On October 23, 1998, plaintiff commenced this action in New Jersey against the manufacturers of the equipment and asserted claim of intentional and negligent spoliation of evidence against the Times, asserting that the Times had irreparably prejudiced his opportunity to prove a products liability action against the manufacturers because the conveyor had been sold. The Times filed an Answer denying liability while acknowledging that the conveyor had been sold in September 1997 and removed thereafter.

In April 2001, both parties moved for summary judgment on the spoliation claim. The court ordered a plenary hearing to determine if the Times had a duty to preserve the conveyor. Following a plenary hearing the court concluded that defendant had a duty to preserve the conveyor as of August 5, 1997, the date plaintiff's attorney wrote the Times requesting inspection of the conveyor. Following the denial of the Times's motion for leave to appeal, the matter was scheduled for trial.

Prior to trial, plaintiff dismissed his complaint against all defendants except the Times. On the first day of trial, the Times moved to dismiss the complaint on the ground that plaintiff could not prove damages since all the other defendants in the underlying products liability action had been dismissed. The manufacturer of the machine, Nolan, had declared bankruptcy in the 1980's and did not have any insurance, and other than the Times, the remaining defendants had been dismissed allegedly because plaintiff could not establish a case against them without the opportunity to inspect the conveyor.

The next day, the court dismissed plaintiff's complaint, concluding that plaintiff could not establish a prima facie case of spoliation. The court noted that the Supreme Court in Rosenblit v. Zimmerman, 166 N.J. 391 (2001), held that New Jersey does not recognize intentional spoliation as a separate cause of action but that a claim for fraudulent concealment could be maintained. Id. at 406. Further, the trial court noted that in Gilleski v. Community Medical Center, 336 N.J. Super. 646 (App. Div. 2001), the court held that a claim for negligent spoliation of evidence was not a separate cause of action, but a claim could be maintained under traditional concepts of negligence. Id. at 652. The trial court then focused on the element of damages, stating that the case law on negligent and intentional spoliation: seem[s] to indicate that -- really that the first determination . . . has to be whether or not the plaintiff can -- can prove damages against the defendant and if there is a finding of no cause in the products liability case, then the spoliation or the intentional . . . concealment or negligence, case would then be brought to determine whether or not there would be a viable cause of action against the surviving defendant in this case. The problem I have here is that we can have no trial on the issue of whether or not the products liability case would result in a finding of no cause, or whether in fact there could be damages and I say that because all of the defendants in this case have been dismissed out, so there can be no trial of making that determination.

The court also noted that there was no remedy available to plaintiff since the traditional remedies available in spoliation cases, such as a negative inference against the spoliator or sanctions, were not applicable to the circumstances of this case. Consequently, the court entered judgment in favor of the Times dismissing plaintiff's complaint. On appeal, plaintiff contends:

POINT I: THE TRIAL COURT ERRED PREJUDICIALLY IN DISMISSING PLAINTIFFS' COMPLAINT ON THE GROUND THAT PLAINTIFFS HAD TO FIRST PROCEED TO TRIAL AGAINST THE MANUFACTURER OF THE DEFECTIVE PRODUCT, AND ONLY AFTER JUDGMENT IN FAVOR OF THE MANUFACTURER COULD THEY THEN COMMENCE A ...


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