On appeal from Superior Court of New Jersey, Law Division, Sussex County, L-153-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Lihotz.
Plaintiff, Francine Sklenar, guardian ad litem for Brandon Feakins, a minor, appeals from an order dismissing with prejudice, as the result of spoliation of evidence, the product liability action filed by Sklenar on her son's behalf against defendants, Rubbermaid, Inc. and RoNetco Supermarkets, Inc. t/a Shop-Rite of Netcong #201.*fn2 The matter arises from injuries to Feakins's hand sustained on February 21, 1998 when melted Hershey's chocolate that had been microwaved in a Servin'Saver food container manufactured by Rubbermaid allegedly leaked out from a hole in the bottom of the container, causing second-degree burns and resultant scarring.
Shortly after the accident, Sklenar retained counsel who, on April 13, 1998, informed Rubbermaid of the incident and requested that Rubbermaid's insurer be notified of a potential claim. Counsel's correspondence was acknowledged by a letter, dated April 22, 1998, which stated that counsel's notification had been forwarded to Rubbermaid's insurer, Kemper Insurance Company. On June 18, 1998, a Kemper claims representative requested that counsel provide medical reports or an authorization to obtain medical records, and that "future correspondence substantiating your client's demand" be sent to her for "review, evaluation and disposition." The Kemper claims representative met with counsel at his office on June 16, 1998, and a week thereafter, was provided with "original photographs in [counsel's] possession depicting the product and injury to Brandon," as well as medical records to date. A further request for medical invoices was made by Kemper on February 19, 1999, and supplied on March 23, 1999, with a letter that concluded: "Please contact me upon receipt of this information and we can discuss a resolution of this matter."
Following Rubbermaid's change of insurer to AIG, on May 23, 2000, counsel wrote an additional letter, enclosing photographs of the container and Feakins's hand and suggesting settlement discussions. An October 15, 2001 letter by counsel to Sklenar stated that he had "scheduled an appointment for AIG adjusters to travel to my office to inspect the Rubbermaid product." He continued, by stating: "If [the adjusters] do not make a settlement offer thereafter, we will have no alternative but to place this matter in litigation. This requires the use of an expert witness and I was hoping to avoid this cost." The substance of the visit by AIG's representatives, if it occurred, has not been specified. Further letters to AIG, dated July 11, 2003, threatened suit, which was filed on March 15, 2005.
By letter dated September 2, 2005, written in response to correspondence of August 18, 2005, counsel notified the attorneys for co-defendant Shop-Rite that: "Unfortunately, the bowl in question was inadvertently discarded and taken away by the cleaning staff of my office."
At a deposition of Sklenar, conducted on May 11, 2006, she testified that she had purchased the Rubbermaid container, labeled as microwavable, in November 1997, and that it had not been used prior to the incident at issue. She described the incident as follows:
I broke off approximately three, four chocolate bars of a chocolate, you know, big chocolate bar like this, three, four bars, and placed it in the bowl, placed the bowl in the microwave, put it on 40 seconds, took the bowl out . . . . My son's hands were on the counter below . . . the microwave shelf.
Took the bowl out, and the chocolate dripped on his hands that were below, his right hand that was below the counter, and burned his right hand.
Sklenar claimed that there was a hole in the bottom of the bowl. However, after she did so, the following exchange occurred:
A: I can't tell you how big the hole was because of the ...