On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3227-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Winkelstein.
Plaintiffs appeal from a jury verdict in defendant's favor in a trip and fall personal injury action.
On November 24, 2002, plaintiff Sharon Jones and a fellow church member went to the home of Ernest Raynor, who was infirm, to deliver a Thanksgiving basket. Upon knocking on the door, plaintiff's companion asked if they could come inside and Raynor permitted them to enter. Once inside, they placed the basket on the kitchen table and then sang songs and read scripture to Raynor. While leaving the home, plaintiff allegedly caught her heel on something, fell through the storm door, down one step, and landed on the walkway. Plaintiff suffered personal injuries as a result of the fall.
Before this personal injury action was filed, Raynor died. Consequently, his estate was named as the defendant in the action.
Plaintiff's theory of liability at trial was that a "transition strip" between the edge of the carpeting and front door of the Raynor residence had been negligently installed backwards, which created a tripping hazard, and that plaintiff's accident was caused by this condition. Plaintiff's claim was based on the opinion of an engineering expert. This expert inspected the Raynor residence two years after the accident, but the carpeting and transition strip had been replaced by the time of that inspection. Consequently, the expert's opinion was based solely on a photograph of the carpeting and transition strip taken before it was replaced.
Plaintiff filed a pretrial motion for an order "declaring the pneumatic door closure device and the threshold area of the door in this matter was defective." The trial court denied the motion, but indicated it would give a jury instruction on spoliation of evidence.
On appeal, plaintiff argues that the spoliation of evidence instruction the trial court gave the jury did not provide an adequate remedy for the loss of evidence that resulted from the replacement during the pendency of the litigation of the carpeting in the area where plaintiff fell. Plaintiff contends that the court should have directed a verdict on liability or instructed the jury it should presume the decedent's knowledge of the alleged dangerous condition caused by the transition strip.
"Spoliation typically refers to the destruction or concealment of evidence by one party to impede the ability of another party to litigate a case." Jerista v. Murray, 185 N.J. 175, 201 (2005). Where spoliation is demonstrated, "the jury should be instructed that it may infer that the missing evidence would have been helpful to plaintiffs' case and inured to defendant's detriment" -- an inference the jury is "free to accept or reject." Id. at 203. However, a party may not obtain such an instruction simply by showing that evidence has been lost or destroyed. There must be a showing that the destruction was wilful or reckless. See id. at 202-03.
We question whether plaintiff established the requisite foundation for a spoliation of evidence instruction. The only effort plaintiff made to inspect the scene of the accident was to send a private investigator to the Raynor residence three times before defendant was served with the complaint. The first two times, May 14, 2004 and July 19, 2004, no one answered the door. The third time, November 25, 2004, nine days after the complaint was filed, an elderly lady, apparently Raynor's widow, answered the door but refused to allow the investigator to enter her home. There is no indication plaintiff made any further effort to inspect the scene of the accident until more than a year later, on January 13, 2006, when both parties' experts inspected the Raynor home. During the intervening period, on September 26, 2005, Raynor's son, Leonard, replaced the carpet. If plaintiff considered an inspection of the Raynor residence necessary for preparation of her case, she should have made a motion for inspection of the residence pursuant to Rule 4:18-1(a)(2) or made informal arrangements for such an inspection through defendant's counsel, rather than simply sending a private investigator to the house unannounced before the complaint was filed.
Furthermore, plaintiff's complaint and answers to interrogatories, which were defendant's only sources of information regarding plaintiff's claim before replacement of the rug, did not indicate plaintiff alleged she had tripped on the transition strip. Plaintiff's complaint alleged that "she tripped and fell after her foot got caught on a piece of the door jam which was sticking up and the screen door which had a broken or non-functioning closure device gave way[.]" Similarly, her answers to interrogatories alleged: "Plaintiff was leaving the home of the Defendant when her foot got caught on the door jam and she fell. The lack of a closing device on the screen door contributed to the accident." Therefore, defendant could reasonably have assumed at the time the carpeting was replaced that plaintiff's negligence claim related solely to the screen door and door jamb, and not to the carpeting or transition strip.
In addition, both plaintiff's and defendant's liability experts were able to inspect and render expert opinions based on the same photograph of the accident scene taken before the carpeting was replaced. Although this photograph lacked clarity, it provided a sufficient foundation for plaintiff's expert to express an opinion regarding the alleged negligently installed transition strip. The factual foundation for the opinions of defendant's liability expert was limited to ...