January 21, 2010
CZESLAW CIAPINSKI AND HALINA CIAPINSKI, HIS WIFE, PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
CROWN EQUIPMENT CORPORATION, DEFENDANT-RESPONDENT/ CROSS-APPELLANT, AND RAYMOND OF NJ, LLC, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5847-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 18, 2009
Before Judges Stern, Sabatino and Lyons.
This case arises out of a workplace accident in which plaintiff*fn1 Czeslaw Ciapinski was injured while using a forklift. The forklift in question was manufactured by defendant Crown Equipment Corporation ("Crown"), and was serviced at plaintiff's workplace by defendant Raymond of New Jersey LLC ("Raymond"). Plaintiffs appeal the trial court's respective orders granting summary judgment to Crown and to Raymond.
Additionally, this case raises issues of spoliation. Those issues arise because the forklift was not adequately preserved by plaintiff's employer following the accident, and was altered, possibly by plaintiff's co-workers or by employees of Raymond. Plaintiffs claim that this alleged spoliation of evidence hampered their ability to determine what caused the accident. Crown, meanwhile, claimed the loss of evidence impeded its ability to defend against plaintiffs' claims. On appeal, both plaintiffs and Crown challenge the trial court's rulings concerning the alleged spoliation.
For the reasons explained in this opinion, we affirm the trial court's ultimate determinations in all respects.
The record contains the following facts and circumstances pertinent to our analysis of the issues raised on appeal.
A. The Accident and Its Immediate Aftermath
On October 21, 2004, plaintiff was employed as what is termed a "selector" in the Secaucus warehouse of a company known as VersaCold.*fn2 Plaintiff's job required him to locate products in the company's warehouse. To do so, plaintiff used a forklift, also known as a "Hi-Lo."
On the day in question, plaintiff was operating a forklift that VersaCold had owned since April 2000. The forklift, a Model RR-5020-45, was manufactured by Crown. This model is a battery-powered, side-stance forklift designed for use in narrow aisles of warehouses. While operating this model, the user is supposed to stand with his left foot on the brake pedal and his right foot on the power pedal. In addition, the user should have his left hand on the steering tiller, and his right hand on the multi-task handle, also known as a "joystick."
Plaintiff, whose native language is Polish, testified at his deposition through a Polish interpreter. He stated that he initially had only one forklift to choose from on the day of the accident. He used that forklift until he noticed that his favorite forklift, #40, the specific vehicle at issue in this case, was available, so he switched to that one. Plaintiff stated that he never had any problems before with forklift #40. He tested the forklift, including the brakes, before he took it that day, in accordance with company policy. He did not experience any trouble braking while initially using it.
After using the subject forklift for a while, plaintiff took a break. He left the forklift in the on-site maintenance room during his break. Plaintiff stated that he did so because its battery was low.
Defendant Raymond had a contract with VersaCold to service the forklifts on site. Raymond's mechanics (also known as "service technicians") had a maintenance room in the VersaCold warehouse for their use. According to Thomas Patierno, Raymond's customer service representative, VersaCold employees were not supposed to go into the maintenance room. At Raymond's request, Edward Carberry, VersaCold's safety manager, put a chain across the entrance to the room. However, after VersaCold's operators had broken the chain several times by running their forklifts through it, the chain was not replaced. According to Luis Grandal, one of Raymond's mechanics, at one time there had also been a sign by the entry to the maintenance room that said "authorized personnel only." However, one of VersaCold's employees apparently took the sign down.
According to Jose Rodriguez, another mechanic employed by Raymond, plaintiff parked his forklift outside the maintenance room at approximately 4:00 p.m. on the day of the accident. This was the normal break time for VersaCold's second shift. Rodriguez was the only Raymond mechanic working the second shift.
Plaintiff told Rodriguez that he wanted the battery on the forklift changed. Rodriguez accordingly pulled the forklift inside and replaced the battery. He then kept it inside the shop, approximately fifteen feet away from the battery racks. According to Rodriquez, if the mechanics noticed something was wrong with a forklift while doing preventative maintenance, they normally would make the necessary repairs.
Plaintiff was not sure whether the battery already had been changed during his break. He claimed that after he returned from his break, he saw that there was space for him to put the forklift in the area of the maintenance room where the batteries were usually charged. Plaintiff recalled that he had to move the forklift approximately eight to ten feet to get near the recharging area. He claimed that he was driving slowly, and that he used the joystick to stop the device.
Plaintiff recalled that the forklift came to a complete stop, at a point approximately one to one-and-a-half feet away from the battery chargers. This distance apparently was closer to the chargers than what was called for under company policy. According to Carberry, the operators were instructed to stop the forklift four to six feet away from a stationary object.
Plaintiff stated that he then "took the key and turn[ed] it off. I took my feet off from the pedal. My intention was to put it [the forklift] on the floor, and at that time it moved. I don't know what happened." When specifically asked whether he took the key out of the forklift, plaintiff responded: "I turned it off. I had a problem taking it off. I didn't have to take it off." When asked whether he turned the key off, he said: "Yes. I turned it off and it was enough."
Plaintiff did not recall how long after he turned the key off that he had attempted to step outside the forklift. Even so, he was certain that the forklift had come to a complete stop before he tried to get off.
In attempting to step off the forklift, plaintiff recalled that his left foot was leading and his right foot was still "[o]n the pedal inside." According to plaintiff, "at that moment, the Hi-Lo moved." As a result of that movement, plaintiff's left foot got caught between the forklift and the battery chargers.
According to plaintiff's responses to interrogatories, after he turned off the key, with the joystick in neutral, the forklift moved. His interrogatory response further stated that the forklift moved between twelve and eighteen inches "after the power was turned off," trapping his foot between the forklift and the battery rack.*fn3
Although Rodriguez was in the shop when the accident happened, he did not see it occur. Rodriguez did hear plaintiff scream, and he turned to see plaintiff holding his foot. The forklift was in the area, but it did not appear to Rodriguez to be in motion at the time. Because Rodriguez does not speak Polish, he did not talk to plaintiff about what had happened.
Rodriguez ran for help. He reported the accident to Krzysztof ("Chris") Chrostowski, a VersaCold supervisor who spoke Polish. Subsequently, an ambulance arrived and plaintiff was taken to the emergency room of a local hospital.
After several surgeries on his left foot and leg, plaintiff ultimately had his left extremity surgically amputated. He was thereafter fitted for a prosthesis. Plaintiff returned to work for a period of time, but he ultimately left his job with VersaCold in August 2006 due to problems with his leg.
According to Chrostowski, plaintiff told him that his foot had gotten caught between the forklift and battery chargers, and that the machine had continued to move after he got off of it. Carberry asked Chrostowski to put in writing what plaintiff had told him. According to Chrostowski, plaintiff said:
When I was backing the hi/low toward the battery charger in the maintenance shop I thought that machine will stop after I took my foot off the hi/low. I had my foot outside and I did not have enough time to move out from the machine that was still in motion.
Shortly after the accident, Rodriguez was asked to test the brakes on the forklift that plaintiff had been driving. Rodriguez got on the forklift while it was still inside the shop. According to Rodriguez, the forklift powered up as soon as he turned the key on. He moved the forklift, both forward and in reverse, using the joystick. When Rodriguez went to stop the forklift by removing his left foot from the pedal, with the joystick in neutral, the forklift immediately stopped.
Carberry then took photographs of the accident scene that same day. He immediately took the forklift out of service, because he thought there could be a lawsuit forthcoming. In accordance with Carberry's instructions, Rodriguez tagged the machine as being out of service.
Carberry instructed Karl Jager, the plant manager, that the forklift should be set aside. However, Carberry did not tell Jager specifically where to put it. Carberry assumed that the information that the forklift was "off limits" would be filtered down, and passed along to the forklift operators.
The following day, October 22, 2004, Grandal was told to do a safety evaluation on the forklift and to tag it out of service until further notice. Grandal performed the evaluation in the maintenance shop, filling out a checklist. Among other things, Grandal tested the brakes, both in forward and reverse, and also at normal and full speeds. According to Grandal, the brakes operated "100%," as did all the other parts of the forklift.
Grandal's evaluation specifically noted that the key switch on the forklift was "okay." However, he acknowledged that he sometimes saw broken ignition keys in the forklifts. He believed that the VersaCold operators intentionally broke them for purposes of convenience, so that they did not have to carry keys with them, and that such key breakage was an "ongoing issue."*fn4 After his evaluation, Grandal was told to park the forklift outside of the shop, alongside a metal wall, and to "lock it out." The machine was subsequently disabled by entering a password into its computer system.
B. Inspection and Preservation of the Forklift
Plaintiff pursued a worker's compensation claim against his employer, which was defended by St. Paul's/Travelers ("Travelers"), VersaCold's insurance carrier. Travelers received a telephone call from plaintiff's worker's compensation attorney, on November 10, 2004, just several weeks after the accident, asking for maintenance information about the forklift.
On November 11, 2004, the same attorney wrote to VersaCold. He demanded that VersaCold preserve the forklift involved in the accident "in the state it was in at the time of the incident," or else VersaCold "may be liable for an action arising out of the [spoliation] of evidence."
A week later, on November 18, 2004, Daniel S. Denton, an engineer retained by Travelers, reported that he had inspected and photographed the forklift. In his report, Denton concluded that "[a]n external inspection of the vehicle did not reveal any defective components as they would relate to the vehicle's operation." Tests of the vehicle's braking system resulted in "continued motion of less than six inches" after the brake pedal was released. The precise cause of the accident was not clear to Denton.
On January 14, 2005, Carberry wrote to plaintiff's attorney indicating that the forklift had been taken out of service and that it would be available for inspection during the week of January 17, 2005. On January 17, 2005, the attorney responded that he was unable to retain an expert on such short notice, but that he was renewing his demand to VersaCold that the machine be preserved.
About a week later, on January 25, 2005, Hal Leddy, the regional vice president of VersaCold wrote back to plaintiff's attorney. He advised that, in light of counsel's failure to schedule an inspection, the forklift was being put back in service on January 31, 2005. Plaintiff's attorney responded in letters to both VersaCold and Travelers, in which he requested that Travelers share the results of its expert's inspection. Counsel also demanded that VersaCold not put the forklift back in service. He threatened to not honor a workers' compensation lien, and also to sue both VersaCold and Travelers for spoliation in the event that the forklift was not preserved.
On March 16, 2005, Denton supplemented his report. Although the cause of the accident was still unclear to him, Denton reported that he was confident to a reasonable degree of engineering certainty that a mechanical failure or defect did not contribute to the incident.
On April 13, 2005, plaintiffs' current attorney wrote to VersaCold, seeking accident and investigative reports and a "complete copy of [plaintiff's] personnel file." Counsel also asked that VersaCold contact him to arrange a date when he could inspect the machine. In addition, the letter stated:
Also we are putting you on notice that we are requesting that you retain all evidence in your possession with reference to this incident and that you preserve and retain the hi-lo which caused [plaintiff's] catastrophic injuries. Your failure to have preserved and retained this hi-lo, along with any of its accessories and/or paperwork to do with this hi-lo and the incident and the investigation conducted will be considered spoliation of evidence.
In response, Carberry notified plaintiffs' attorney that VersaCold's interests were being represented by a law firm. Consequently, plaintiffs' attorney wrote a similar letter to that law firm on April 27, 2005.
On November 15, 2005,*fn5 one of plaintiffs' engineering experts, Howard Sarrett, inspected the forklift at the VersaCold site. Although the expert was allowed to examine the forklift visually and to photograph it, pursuant to restrictions imposed by Travelers, he was not allowed to mount or to operate it.
Eight months later, on July 31, 2006, plaintiffs' attorney wrote to the law firm representing VersaCold and repeated his demand, previously expressed in his letters in April 2005, that the forklift in question be preserved.
On October 24, 2006, plaintiffs' attorney wrote to Crown's attorney, regarding a letter he had just received, indicating that Crown intended to inspect the truck the following day. Plaintiffs' attorney was unable to have his own expert available on such short notice, and he was not aware of the testing protocol that Crown's expert intended to use at the inspection.
Plaintiffs' counsel again demanded that the forklift be preserved and retained in its then-existing condition. By letter of October 25, 2006, plaintiffs' attorney reminded VersaCold's attorney of this same demand.
Crown attempted inspection on October 25, 2006 but found that the forklift had already been altered. Plaintiffs' experts did not conduct a further inspection of the forklift until December 2006.
According to Patierno, the forklift was initially kept inside the charger room at VersaCold. About two to three months later, it was moved outside the room, because space was needed inside for repairs. The forklift still had its tag on, noting that it was out of service. At some later point it was moved to the back of the warehouse, where the charger room for the PRW*fn6 side of the facility was located. The forklift still had its tag on. Jager admitted that nothing prevented anyone from entering this area.
At some point, Grandal told Patierno that people were stripping parts from the forklift involved in plaintiff's accident, as well as from other forklifts, and using them for scrap. Patierno reported this problem to Jager. Patierno believed that the stealing of parts from forklifts had occurred prior to plaintiff's accident, and that he had told both Jager and Carberry about it. When Patierno specifically told Jager about the alteration of forklift #40, Jager allegedly replied, "that's what happens here."
In April 2006, Jager asked Carlos Diaz, a Raymond mechanic who replaced Grandal, to check the forklift to see if it could be operated. At the time, the forklift was inside the charging room*fn7 and no parts were missing from it. Diaz first had to get the key from Jager to unlock the battery. Diaz then removed the old battery from the forklift and replaced it with a new one. He discovered that the forklift apparently operated fine, including the brakes at full speed.
Diaz claimed that, thereafter, in May 2006, he saw the forklift for the first time located on the PRW side of the building. The device then was still apparently intact and no parts were missing from it.
In June 2006 Diaz noticed that parts were missing from other forklifts. He reported these incidents to Jager, who told him that certain forklifts--but not the one involved in plaintiff's accident--had been left outside the building on the loading dock because they were being scrapped.
In August or September 2006, Diaz first noticed that forklift #40 had been altered and that parts had been removed from it. In particular, the power cables and fuses were missing and there was no longer a control handle or a display module.
Carberry did not know who had removed the parts from forklift #40. Rodriguez contended that someone would have to be specially trained to remove certain of the parts. However, Rodriguez had no personal knowledge of any Raymond or VersaCold employee taking parts off of a forklift to use on another machine.
In February 2007 Diaz noticed that forklift #40 had been moved again. This time it was moved to the ERS side of the building. The forklift apparently has remained in its altered condition since that time.
C. The Experts' Analyses of The Forklift
Plaintiffs retained two engineering experts to evaluate potential liability claims arising out of the accident: Irving U. Ojalvo, Sc.D., P.E., and Howard Sarrett, P.E. Dr. Ojalvo is a professional engineer licensed in Connecticut, New York, and Florida. He obtained his doctorate from New York University and is a former professor of mechanical engineering at the University of Bridgeport. Sarrett is a professional engineer licensed in New Jersey. He holds a masters degree in engineering from the Rensselaer Polytechnic Institute, and has operated a consulting practice in safety and engineering matters since 1992. Both Dr. Ojalvo and Sarrett have previously testified as expert witnesses, and their qualifications as experts are not challenged by defendants for purposes of the issues raised on appeal.
Dr. Ojalvo visited the VersaCold site on only one occasion, on December 27, 2006--after the forklift had already been altered. Dr. Ojalvo also visited the Crown facility on July 5, 2007. He took photographs on both occasions and produced an initial expert report in June 2007 and a supplemental report in November 2007.
Dr. Ojalvo explained that the forklift operator would enter sideways, at the rear of the machine, with his right side entering first. There were two pedals on the floorboard. The left one released the brake and had to be depressed in order for the forklift to begin moving. The operator would activate the brake by raising his foot off this pedal. The right pedal was known as the "presence control."
A strip at the entrance to the operator compartment was designed to prevent operators from riding with one foot outside the forklift. Although Dr. Ojalvo believed that this strip should have been painted a contrasting color, he did not know whether plaintiff was operating the forklift with his foot outside the compartment on the day in question.
Dr. Ojalvo noted the joystick controlled the direction of travel and the speed of the forklift. It also raised and lowered the forks. Although the forklift could also be stopped by moving this handle in the opposite direction from which the truck was traveling (a procedure known as "plugging"), Dr. Ojalvo noted that using the brake pedal would stop the forklift more quickly and within a shorter distance.
In Dr. Ojalvo's opinion, the two pedals on the floorboard of the forklift were defectively designed because they were too close together, they were too small, and their vertical travel was too slight. These alleged defects, according to Dr. Ojalvo, would allow an operator to easily and unwittingly have one foot on both pedals, or to depress the left pedal accidentally with his right foot while exiting the forklift. Although a rigid bar separated the two pedals, it was still possible for an operator to "straddle" (i.e., touch simultaneously) both pedals as he exited.
Dr. Ojalvo admitted that there were no design standards that required any particular distance between foot pedals. Even so, he believed that there should have been at least two inches of separation. He opined, however, that there was no need for a two-pedal design.
Dr. Ojalvo further acknowledged that there were no design standards for the size of the pedals or for their vertical travel. However, the vertical travel of these pedals was only half an inch. Dr. Ojalvo believed they should have been at least two inches. Ojalvo noted that subsequent forklift designs by Crown used a single brake pedal and incorporated a substantial vertical lift, so that the operator was certain to know when his brakes became activated.
Dr. Ojalvo also opined that the joystick was defectively designed because it had springs that would return it to a neutral position, rather than requiring a positive motion by the operator for that action. The problem with this design, according to Dr. Ojalvo, was that the operator might assume that the stick returned to neutral when it did not.
Dr. Ojalvo admitted that because he never inspected the handle on the actual forklift that was involved in the accident, he did not know whether there was anything wrong with the springs in the handle on the day of the accident. He acknowledged that it was "possible" that there was nothing wrong with them. Dr. Ojalvo also admitted that he never tested the handle to determine what effect a problem with the springs would have on the handle. He did not know which of the four springs in the handle actually returned it to a neutral position. However, after dismantling and inspecting the joystick on an example machine at Crowns manufacturing facility, Dr. Ojalvo concluded that it was possible for a sticking, cracked, or nonexistent spring to prevent the handle from returning to neutral.
With respect to the forklift's ignition, Dr Ojalvo explained that it functioned like the ignition in a car. That is, it had three positions: (1) off, (2) on, and (3) initialize/start. An operator would insert the key into the ignition, turn it clockwise to the "start" position, which was beyond the "on" position, and the key should spring back to "on" after the forklift started. If the operator turned the key to "off," all functions of the forklift were supposed to be turned off, as there would be no electric current flowing to the motor.
In Dr. Ojalvo's opinion, if the operator unknowingly stepped on both pedals with one foot, and if the control spring in the handle was defective and failed to return the handle to a neutral position, then the unit could start to move in the direction it was last released from. That is, by straddling both pedals upon exiting the forklift: when combined with the small travel of the brake pedal required to remove forklift braking and the possibility of either accidentally moving the drive handle rearward, or not returning to neutral because of the possibility of a defective spring, caused the incident unit to travel rearward, crushing [plaintiff's] left foot.
In addition, Dr. Ojalvo asserted that the combination of the spring-loaded multi-function control handle and the broken key switch provided a "logical explanation" of how the accident occurred. Had the key switch not been broken, the operator could have removed the key and guaranteed that the machine was off and would have remained stopped.
As further support for his opinion of defective design, Dr. Ojalvo noted that Rodriguez had testified, in his deposition, that when he tested the brakes right after the accident, he stopped the truck by picking his left foot off the brake while the handle was in neutral. According to Dr. Ojalvo, the forklift should not have been moving while Rodriquez had the handle placed in neutral.
Sarrett, plaintiffs' other engineering expert, first inspected the truck at VersaCold on November 15, 2005. At that time, he was allowed to examine and photograph the unit. However, as we have already noted, pursuant to instructions from Travelers, Sarrett was not allowed to mount or to operate the machine. Sarrett examined the forklift again more than a year later on December 22 and 27, 2006, after it had already been "cannibalized," having had its ignition switch, brake systems, and floor boards removed.
Although Sarrett's initial assignment had been to render an opinion regarding the design and operation of the forklift, his forensic role changed when it became apparent in 2006 that he could not conduct an adequate inspection, due to the machine's having been dismantled. Sarrett thus was asked to look at maintenance issues regarding the forklift.
In Sarrett's opinion, Raymond failed to ensure that there was not a broken key in the ignition. However, Sarrett admitted that he had no actual knowledge of whether the key was actually broken on the day in question. He also acknowledged that a photograph taken on the date of the accident appeared to indicate that the key was not broken. According to Sarrett, whether a broken key would prevent the machine from being turned off would depend on how the key was broken.
Sarrett opined that Raymond should have actively prohibited VersaCold employees from entering the maintenance room. Even so, Sarrett admitted that he did not know whether or not Raymond had any authorization over VersaCold's employees. He opined that Raymond should have done something more than merely post a sign warding off unauthorized entrants.
D. Design Information From Crown's Product Safety Manager
Additional perspectives concerning the forklift's design features are supplied in the record by Dan Dunlap, the manager of product safety for Crown. Dunlap had been involved in designing the model of the forklift that plaintiff drove on the date of the accident, the RR 5000. Dunlap explained that the operator of this side-stance model faces perpendicular to the direction of travel. The left side of the operator's body should be towards the compartment opening, which is the rear of the forklift. According to Dunlap, the maximum unloaded speed of the forklift was 7.6 miles per hour.
As Dunlap explained, the forklift's brake pedal was closer to the "back," or the left side, of the forklift, toward the compartment opening. The presence pedal, meanwhile, was closer to the "front," or right side, of the forklift, toward the forks. The operator's foot on the presence pedal allowed for all functions of the device, other than travel. To travel, the operator's foot also had to be simultaneously depressing the brake pedal. The presence pedal was designed to be operated with the right foot, so that someone could not operate the forklift from outside the compartment. In addition, there was an entry bar, which should have prevented the operator from driving while his foot was outside the forklift. As Dunlap explained, this bar was designed so that if the operator depressed the bar between 1/16th and 1/8th of an inch, traction would be cut and the forklift would coast to a stop.
In Dunlap's view, as designed and tested, the operator of the forklift could straddle both the brake pedal and presence pedal with one foot, but he could not do so "unknowingly." In other words, the operator could straddle both pedals only if he tried to do so. According to Dunlap, there was a very noticeable ledge between the two pedals that indicated to the operator where his foot was, so that he would not accidentally press both pedals. However, Dunlap admitted that this bar was not a different color than the rest of the floorboard.
Although the two pedals were the same color as each other and were only a slightly different color than the floorboard, Dunlap noted that the brake pedal had contours that showed the international brake symbol, and the presence pedal had a bubble texture.
Crown did not issue any warning to operators to avoid covering both pedals with one foot. However, the operating manual does instruct operators to use the left foot with the brake pedal and the right foot with the presence pedal. According to Dunlap, Crown did not receive any information from the field that operators were intentionally using one foot to cover both pedals.
Dunlap noted that the brake pedal had to travel approximately 3/10th of an inch for the brake switch to be contacted. The pedal had a maximum "travel" of one-half of an inch. The same measurements applied to the presence pedal.
Dunlap acknowledged that the prior forklift model, the RR 3500, had a larger brake pedal, one that was sixteen to eighteen inches long and six inches wide and that covered almost the entire width of the compartment. Crown subsequently decided to use a smaller brake for the RR 5000 for several reasons: in order to allow a flexible stance within the forklift, to permit activation of the pedal with either the heel or toe or the side of the foot, and to give the operator a greater ability to stand in different places within the compartment. The newer design configuration also allowed for a wider range of operators, such as female operators or operators who might tend to be of smaller stature. It also required only four to five pounds of pressure to activate the pedal, as opposed to the thirty-five to forty pounds required on the RR 3500.
According to Dunlap, the faster the forklift was traveling, the longer it would take to come to a stop when the brake is applied. Assuming the forklift was not loaded, at one mile per hour, its stopping distance was about two to three inches. At two miles per hour, that distance rose to nine to twelve inches. At three miles per hour, the stopping distance was twenty to twenty-four inches. If an operator lifted his left foot from the brake pedal while the forklift was moving, Dunlap noted that the forklift should stop, after a "proper amount of time and deceleration."
Dunlap confirmed that "plugging" with the joystick was an alternate way to stop the forklift. Such a maneuver causes a reverse current to the motor, which would slow the forklift down and eventually stop it.
Dunlap reviewed all accident reports prior to October 2004 for this model. His review showed no reported accidents like the one at issue here, where the driver turned the forklift off, got out of the forklift, and the forklift allegedly kept moving. Although there were instances where the joystick physically broke, Dunlap found no accidents where it failed to operate properly and allowed the forklift to continue to move after being put in neutral. Dunlap noted that the normal, stationary position of the handle was neutral, and the springs in the handle were designed to return the handle to this position if the operator let go of it.
E. Plaintiffs' Complaint, Discovery, and the Ensuing Summary Judgment Motions
In November 2005, plaintiffs filed a complaint for damages in the Law Division. Plaintiffs asserted various claims of product liability against defendant Crown, alleging failure to warn, and negligent design and manufacture, which they contend caused the forklift accident. Thereafter, in February 2006, plaintiffs filed an amended complaint, which added fictitious defendants and a claim for negligent repair and maintenance. They subsequently filed a second amended complaint, in June 2006, which added Raymond as a defendant on all claims.
Crown and Raymond both denied liability. However, Crown admitted manufacturing the forklift involved in plaintiff's accident and Raymond admitted having serviced that particular machine.*fn8
Following a period of discovery, Crown and Raymond each moved for summary judgment. The trial court denied those original motions, finding at that time that there were genuine questions of material fact that bore on the issues of liability. Among other things, the judge rejected Crown's argument that Dr. Ojalvo's expert testimony was an impermissible net opinion, because it was based on the deposition testimony of various witnesses, the design of the machine, Crown's inspection of the forklift, and Dr. Ojalvo's inspection of an exemplar of the same model of forklift involved in the accident.
The judge initially perceived that triable issues existed as to whether a design defect in the forklift resulted in plaintiff's accident and whether Crown failed, in particular, to warn users not to stand on both pedals with their right foot. Additionally, the judge denied Crown's claim that it was entitled to summary judgment based solely on the forklift's spoliation. The judge noted that witnesses other than the parties' experts had examined the forklift immediately after the accident, and that Dr. Ojalvo had been able to look at an identical model of the forklift.
With respect to Raymond's initial summary judgment motion, the judge noted in his original ruling that Raymond's liability was based solely on the "broken-key" theory. In that regard, the judge found that both Sarrett and Dr. Ojalvo were qualified to render their opinions as to that whether the key was actually broken and had contributed to the accident.
Crown and Raymond then moved for reconsideration. After further reflecting upon the record, the trial judge granted Raymond's motion and entered summary judgment in its favor. In granting Raymond that relief, the judge noted that plaintiff's counsel and plaintiff's two engineering experts had conceded that there would be no electric power being carried through the forklift with the ignition key in the "off" position. Consequently, the judge determined that--in light of plaintiff's testimony that he had turned the machine off using the key to do so, and the other employees' use of the key to move the forklift after the accident--no reasonable factfinder could conclude that the key mechanism was actually inoperable at the time of the accident.
Moreover, the judge also found that even if Raymond had a duty to keep VersaCold's employees out of the repair shop, its breach of that alleged duty could not have been a cause of the accident because nothing in the repair shop contributed to the forklift moving. The judge further recognized that Raymond, which had only serviced the forklift and did not manufacture it, could not be liable to plaintiffs under theories of product liability.
The judge continued at that point, however, to hold Crown in as a potentially viable defendant on the products liability claims. The judge also was unpersuaded that those claims against Crown should be dismissed because of the apparent spoliation of the forklift by third parties.
These judicial determinations prompted a final round of motion practice. Plaintiffs moved for reconsideration of the court's dismissal of their claims against Raymond. At the same time, Crown renewed its motion for reconsideration.
Among other things, Crown argued that the logic of the court's dismissal of the "broken key" theory against Raymond, also impelled the dismissal of plaintiffs' claims against Crown. Crown argued that, even assuming, arguendo, there was a design flaw with respect to the forklift's pedals and joystick, there could be no causation that could make Crown liable. Crown emphasized that the court had already found, in connection with Raymond's own motion, that the key was not broken and that the forklift was turned off. Crown argued that if plaintiff had one foot on both pedals and the multi-task handle did not spring to neutral, plaintiffs' own experts agreed that the forklift could not begin moving if it had been turned off.
Assessing these liability issues one last time, the motion judge ultimately concluded that plaintiffs and their experts had failed to demonstrate viable theories of causation against both Raymond and Crown. The judge discerned no basis to set aside his prior order granting summary judgment in favor of Raymond. As to Crown, the judge relied upon his prior determination that there was no dispute that the forklift was not powered at the time of the accident. That being the case, the judge reasoned that plaintiffs' various criticisms of the forklift's design did not support a reasonable theory of causation that warranted presentation to a jury.*fn9 Summary judgment was therefore entered in favor of Crown on final reconsideration.
F. The Appeal and Cross-Appeal
In their appeal, plaintiffs argue that the motion judge erred in essentially two significant respects. First, plaintiffs assert that the court erred in dismissing their liability claims against Crown and Raymond, respectively.
Plaintiffs maintain that their engineering experts have presented viable theories of deficient conduct and causation against both defendants. Second, plaintiffs argue that any perceived deficiencies in their liability proofs against defendants should be excused because of the post-accident spoliation of the forklift that was not their fault.
Crown has filed a protective cross-appeal, reiterating that it is entitled to summary judgment--regardless of the substantive and causation analysis--because the spoliation of the forklift prejudiced its defense of plaintiffs' lawsuit. Raymond has not filed a cross-appeal, but it continues to assert that it was neither responsible for the accident itself nor the post-accident alteration of the forklift.
Because it is logical to do so, we address the issues relating to spoliation first.
Spoliation is "the term that is used to describe the hiding or destroying of litigation evidence, generally by an adverse party." Rosenblit v. Zimmerman, 166 N.J. 391, 400-01 (2001). In the case of intentional spoliation, one civil remedy available to the aggrieved party is the spoliation inference. Id. at 401. This is an inference that is used "during the underlying litigation as a method of evening the playing field where evidence has been hidden or destroyed. It essentially allows a jury in the underlying case to presume that the evidence the spoliator destroyed or otherwise concealed would have been unfavorable to him or her." Id. at 401-02.
Another remedy available to a litigant who has been prejudiced by intentional spoliation is a discovery sanction pursuant to Rule 4:23-2(b). Id. at 402. This rule allows a court to "order that designated facts be taken as established, refuse to permit the disobedient party to support or oppose designated claims or defenses, prohibit the introduction of designated matters into evidence, dismiss an action, or enter judgment by default." Id. at 402-03.
A third remedy available for the destruction of litigation evidence is a separate tort action against the spoliator. Id. at 403. The Court in Rosenblit limited its analysis to intentional, rather than negligent, spoliation, ibid., and to plaintiffs, rather than defendants, who have suffered the destruction of evidence in the underlying litigation. Id. at 407 n.3. The Court held that the spoliation tort is akin to that of fraudulent concealment, and that it requires a plaintiff to prove:
(1) That defendant in the fraudulent concealment action had a legal obligation to disclose evidence in connection with an existing or pending litigation;
(2) That the evidence was material to the litigation;
(3) That plaintiff could not reasonably have obtained access to the evidence from another source;
(4) That defendant intentionally withheld, altered or destroyed the evidence with purpose to disrupt the litigation; [and]
(5) That plaintiff was damaged in the underlying action by having to rely on an evidential record that did not contain the evidence defendant concealed.
[Id. at 406-07.]
In Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 119 (2008), the Court clarified the relationship between the various methods for addressing spoliation. The Court noted in Tartaglia a distinction to be drawn based on the alleged spoliator. Ibid. "[A]cts of spoliation by parties [to the litigation] may give rise to the court's use of discovery and evidentiary sanctions and may also support separate counts in the nature of fraudulent concealment claims that are bifurcated for determination after the verdict is returned on the other substantive claims." Ibid. (footnote omitted).
"On the other hand, an act of spoliation by a third party, including a reckless one, . . . instead will be addressed in a separate proceeding." Id. at 120 (emphasis added). See also Viviano v. CBS, Inc., 251 N.J. Super. 113, 117 (App. Div. 1991), certif. denied, 127 N.J. 565 (1992) (involving claims of spoliation that a plaintiff asserted against her employer, based upon that employer's intentional concealment of information concerning the plaintiff's personal injury claims that she was pursuing against other parties for work-related injuries).
In Gilleski v. Community Med. Ctr., 336 N.J. Super. 646, 648 (App. Div. 2001), the alleged spoliator was a medical center that owned a chair that collapsed and injured the plaintiff. The center subsequently disposed of the chair, which was critical to the plaintiff's potential suit against the chair's manufacturer. Ibid. We first noted in Gilleski that the "existence of a duty to preserve evidence is a question of law to be determined by the trial court." Id. at 653. We held that if the third party knew of "a pending or potential lawsuit and accept[ed] responsibility for the evidence that would be used in that lawsuit, it should be held liable for damage resulting from the loss or destruction of that evidence." Id. at 654. Additionally, a duty may be created if the spoliator voluntarily agreed to preserve the evidence and the plaintiff reasonably and detrimentally relied on that agreement. Id. at 654. However, "[a] third party's constructive notice of a pending or potential action is not sufficient to force upon the third party the duty to preserve evidence." Id. at 655. In addition, a party desiring to preserve evidence prior to instituting suit may seek the relief provided by Rule 4:11-1(a), including the pre-action inspection of the evidence. Ibid.
Applying those principles in Gilleski, we rejected the plaintiff's spoliation claim because that plaintiff had never asked the medical center to preserve the chair. Ibid. Nor did she notify the center of an intention to pursue a lawsuit against either the hospital or a third party. Ibid.
With these governing legal principles in mind, we now turn to the spoliation issues presented by the record in this case. Plaintiffs do not seek any affirmative relief on their spoliation claims. Rather, they argue that it can be inferred circumstantially that Raymond's employees were responsible for altering the forklift, and that this inference should have weighed more heavily in plaintiffs' favor on the summary judgment motions. They specifically note that it was only after Raymond was added as a party defendant that the parts of the forklift that were most relevant to plaintiffs' claims were removed or changed. In addition, plaintiffs note that Raymond's employees had access to the forklift following the accident.
Meanwhile, Crown emphasizes that it was completely innocent in the spoliation of the evidence. Crown argues that it did not even know what plaintiffs' specific claims were until after the forklift was altered. Based upon those innocent circumstances, Crown asserts that it was entitled to summary judgment dismissing plaintiffs' claims, on the ground that it would be virtually impossible for it to defend against these claims. Crown further argues that plaintiffs could have taken greater steps to assure that the forklift was preserved by VersaCold. In any event, Crown suggests that plaintiffs might be compensated for their losses by pursuing a separate action for spoliation against VersaCold.
Plaintiffs admit that Crown's ability to defend the case has been negatively impacted by the spoliation of the forklift. However, they assert that they were just as innocent as Crown in the loss of the evidence. Plaintiffs maintain that they took all reasonable steps to preserve the forklift, in making appropriate demands upon VersaCold and its agents to preserve the machine in its original post-accident state. They therefore argue that the spoliation of the evidence by third parties should not result in the dismissal of their substantive claims.
In response to both plaintiffs and Crown, Raymond asserts that there is no evidence that its employees were responsible for altering the machine. Raymond argues that the record shows that its employees notified VersaCold as soon as they discovered the spoliation, and that VersaCold simply did nothing about it.
Although Crown disputes the inferences from the evidence asserted by Raymond, it acknowledges that the two co-defendants have no claims against one another.
The motion judge did not ultimately resolve who was responsible for the spoliation, or whether plaintiffs took reasonable steps to safeguard the forklift following the accident. However, the spoliation issue did not manifestly affect substantive resolution of the summary judgment motions. Although the destruction of the forklift hampered plaintiffs' experts' ability to say why the accident happened, this fact did not preclude the court from fairly analyzing plaintiffs' liability claims on the proofs that were adduced.
The pertinent chronology shows that beginning in November 2004, or several weeks after the accident, and continuing until October 2006, plaintiffs' attorneys made numerous demands of VersaCold to preserve the condition of the forklift. Raymond's mechanics tested the forklift both on the day of the accident and the day following the accident. Although plaintiffs' New Jersey engineering expert, Sarrett, examined the forklift before it was altered, he was not permitted to operate it at that time. Plaintiffs filed suit against Crown later that month. The forklift was in preserved condition as of April 2006, when one of Raymond's technicians again tested it. It was moved to a different location a month later and was still intact. Raymond was brought into the case in June 2006. The forklift was apparently "cannibalized" some time in August or September 2006. Neither Crown's experts nor plaintiffs' experts were able to fully inspect and test the forklift before it was so altered.
Plaintiffs put VersaCold on notice from the very beginning that there would be a lawsuit arising out of the accident, and that they wanted the forklift preserved. VersaCold in fact took steps to do that, albeit not very effective ones.
Even so, the record shows that plaintiffs never pursued any pre-litigation action under Rule 4:11-1(a) against VersaCold to assure that the forklift would be preserved for inspection. Nor did plaintiffs pursue any discovery sanctions against Raymond prior to the summary judgment motion practice for its alleged participation in the vandalism of the forklift. Plaintiffs never amended their complaint to include a count for intentional or negligent destruction of evidence by either VersaCold or Raymond.
Plaintiffs also delayed for over a year before dispatching Dr. Ojalvo to inspect the forklift. The record suggests that plaintiffs could have done even more to protect their interests in the integrity and preservation of the machine in a timely manner.
Raymond was put on notice of plaintiffs' lawsuit in June 2006. Plaintiffs theorize that Raymond's employees might have been responsible for the vandalism to the forklift that occurred thereafter. However, that theory is purely conjectural. Moreover, plaintiffs cite to no authority to support the notion that Raymond, as a repair contractor on VersaCold's property, had an ongoing duty to preserve a piece of equipment that it did not own.
Assessing the situation as a whole, we are not persuaded that the motion judge acted unfairly in declining to hold any of the three parties in the present appeal accountable for the non-preservation of the forklift evidence, or, conversely, in declining to have that spoliation excuse their respective obligations under the applicable substantive law of products liability and negligence. If anything, it appears that VersaCold, which is not a party to this litigation, was in the best position to preserve the forklift. However, we do not decide on this incomplete record whether VersaCold's action or inaction would sustain any direct spoliation claims against it by plaintiffs, or any third-party claims by Crown or Raymond. In any event, no such claims against VersaCold had been asserted as of the time of oral argument before us.
Although the post-accident alteration of the forklift was unfortunate, we perceive no manifest injustice in the motion judge's disposition of the spoliation issues. The non-preservation of the machine essentially disadvantaged all of the parties in this litigation to some extent, and that disadvantage did not appreciably weigh more heavily in either plaintiffs' direction or defendants' direction. We therefore affirm the motion judge's ruling, without prejudice to any recourse that plaintiffs or, for that matter, defendants, may ultimately endeavor to pursue on a timely basis against VersaCold.
We now consider the propriety of the trial court's issuance of summary judgment to defendants Crown and Raymond. In doing so, we apply the well-established standards governing summary judgment, an application that should be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). The motion judge must consider whether "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). This standard requires a weighing of evidence to determine whether a genuine issue of material fact exists. Id. at 536. We apply the same standards on appeal in reviewing summary judgment orders. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007).
As a preliminary matter, we reject plaintiffs' contention that the trial court was constrained from ultimately granting summary judgment to Crown and Raymond on reconsideration, after initially denying each of them such dispositive relief. The prior orders of denial were merely interlocutory in nature. "Denial of summary judgment preserves rather than resolves issues; therefore, later reconsideration of matters implicated in the motion, including the reasons in support of the denial, are not precluded." Blunt v. Klapproth, 309 N.J. Super. 493, 504 (App. Div.), certif. denied sub nom., Blunt v. Wirtz, 156 N.J. 387 (1998). An order denying summary judgment "decides nothing and merely reserves issues for future disposition." Gonzalez v. Ideal Tile Importing Co., Inc., 371 N.J. Super. 349, 356 (App. Div. 2004), aff'd, 184 N.J. 415 (2005), cert. denied sub nom., Gonzalez v. Komatsu Forklift, U.S.A., Inc. 546 U.S. 1092, 126 S.Ct. 1042, 163 L.Ed. 2d 857 (2006).
The fact that Crown and Raymond renewed their applications for summary judgment relief by revising and reformulating their motion papers is inconsequential. The trial court had the authority to reflect further on its earlier dispositions, before requiring the parties to devote the time and expense to what most likely would have been a lengthy jury trial.
That being stated, we turn to the substance of the claims asserted against Crown and Raymond, respectively. Plaintiffs' claims against Crown were predicated on theories of product liability, in particular that Crown misdesigned the forklift and that the product lacked adequate safety warnings. Under the Product Liability Act, N.J.S.A. 2A:58C-1 to -11, a plaintiff must demonstrate, among other things, that: " the product was defective,  that the defect existed when the product left the manufacturer's control, and that  the defect proximately caused injuries to the plaintiff, a reasonably foreseeable or intended user." Myrlak v. Port Auth. of N.Y. & N.J., 157 N.J. 84, 97 (1999) (construing and applying the elements of the Product Liability Act).
In an industrial accident setting such as this one, a plaintiff's own comparative negligence is not a defense. N.J.S.A. 2A:58C-3(a)(2). However, plaintiff is still not relieved from establishing the core liability requirements of defect, proximate causation, and injury. Grier v. Cochran Western Corp., 308 N.J. Super. 308, 312 (App. Div. 1998) (sustaining judgment for a manufacturer in workplace accident case involving alleged design defects and failure-to-warn). The law provides for strict liability if the requisite statutory elements are proven, but not absolute liability simply because an injury has occurred in the use of a product. Myrlak, supra, 157 N.J. at 97.
As to Raymond, plaintiffs' claims hinge upon proof of the well-established elements of a negligence action: (1) duty of care, (2) breach of that duty, (3) proximate causation, and (4) injury. Weinberg v. Dinger, 106 N.J. 469, 484 (1987). The mere happening of an accident, apart from res ipsa loquitor scenarios not present here, does not automatically bespeak a cause of action for negligence, Eaton v. Eaton, 119 N.J. 628, 642 (1990). Plaintiffs contend that Raymond was negligent in several respects, mainly its failure to restrict employee access to the maintenance area where the accident occurred.
A critical element common to both a products liability action (as against Crown) and a negligence action (as against Raymond) is proof of proximate causation. The Supreme Court has noted that "[c]ausation is a fundamental requisite for establishing any product-liability action." Coffman v. Keene Corp., 133 N.J. 581, 594 (1993). Where, as here, theories of defective design are asserted, a plaintiff must prove that "the defect in the product was a proximate cause of the injury." Ibid.; see also Michalko v. Cooke Color & Chem. Corp., 91 N.J. 386, 394 (1982). The same is true as to alleged failures to warn of a product's dangerousness. Coffman, supra, 133 N.J. at 594; see also Campos v. Firestone Tire & Rubber Co., 98 N.J. 198, 209 (1984).
Hence, "[e]ven in a strict-liability action, a plaintiff must prove causation." Cruz-Mendez v. ISU/Ins. Servs. of San Francisco, 156 N.J. 556, 574 (1999). "First, a plaintiff must show that the defendant's act or omission was the factual, or 'but for,' cause of the injury." Ibid. "Second, even under a strict-liability standard, a plaintiff must prove that this factual cause was a proximate cause of the injury." Ibid.
Likewise, it is axiomatic that plaintiff asserting a negligence claim must establish that the asserted unreasonable acts or omissions by the defendant proximately caused his or her injuries. Rappaport v. Nichols, 31 N.J. 188, 203 (1959); Camp v. Jiffy Lube No. 114, 309 N.J. Super. 305, 309-11 (App. Div.), certif. denied, 156 N.J. 386 (1998).
Where a record does not present genuine factual issues regarding the critical element of proximate causation, it is improper for a court to allow a plaintiff's claims to be presented to a jury. Vega ex rel. Muniz v. Piedilato, 154 N.J. 496, 509 (1998). The summary judgment procedure exists to winnow out such untenable claims where a critical element of the cause of action reasonably cannot be proven. Brill, supra, 142 N.J. at 540-41.
Viewing the record here, as we must under Rule 4:46-1, in a light most favorable to plaintiffs, we concur with the motion judge that plaintiffs have not established viable substantive claims against either Crown or Raymond. The critical deficiency is plaintiffs' failure to establish proximate cause as to either defendant, particularly given plaintiff's sworn factual responses insisting that he had turned the ignition key off on the forklift before attempting to come off of the machine.
Plaintiffs' product liability expert, Dr. Ojalvo, attempts to provide a variety of reasons why the forklift was defectively designed, and why it contained inadequate safety warnings. Among other things, he criticizes the configuration of the machine's two foot pedals, the design of the multi-task handle, and the ignition key mechanism. All of those theories of deficiency, however, have no evidential value, absent proof that they actually caused plaintiff's unfortunate mishap when he dismounted from the forklift.
The expert's theories hinge upon a premise that the forklift was still activated by electric power when plaintiff's leg was trapped between it and the industrial batteries stacked by the repair shop wall. Yet plaintiff repeatedly asserted at his deposition and in his interrogatory responses that he had turned the key to the machine "off." A litigant's discovery responses are presumed to be a correct recitation of that litigant's factual position. Shelcusky v. Garjulio, 172 N.J. 185, 199-202 (2002). Plaintiff's post-deposition certification dated January 5, 2008 states that he had meant in his deposition to say that he had a problem taking the key out of the machine. However, the certification does not address or refute plaintiff's sworn assertions that he had turned the machine "off."
Plaintiff argues that it was physically impossible for the accident to have occurred unless, in fact, the forklift was "on" rather than "off" because the proofs show that the forklift moved across the shop floor as plaintiff was getting off of the device. In essence, plaintiff's argument suggests that his answers in discovery must have been mistaken, and that the forklift's ignition key must have still been in the "on" position at the time of the accident. The problem with this revisionist contention is that the physical characteristics of the forklift, as described by Dunlap's unrefuted testimony, are such that the machine can continue to "coast" for some distance even after the electric current powering the device has been switched off.
The record indicates that the forklift has a stopping distance of up to several feet, depending on the speed. Plaintiff, according to his account, turned off the forklift only twelve or eighteen inches away from the wall. However, Dunlap, the product designer, testified that the forklift could coast for nine to twelve inches if braked at two miles per hour, and for twenty to twenty-four inches if braked at three miles per hour. Hence, it is entirely plausible, and not physically impossible, that the forklift coasted to a point that plaintiff's foot was pinned against the wall, even after the electric power was turned off.
The reports of plaintiffs' experts do not contend that the coasting property of the forklift amounts to a design defect. Nor do they assert that the accident was caused by the unsafe coasting of the machine after it was powered off. Absent such competent expert opinion, and in light of plaintiff's discovery responses attesting that he turned off the machine, plaintiffs' product liability claims involving this complex instrumentality are not sustainable. Apuzzio v. J. Fede Trucking, 355 N.J. Super. 122, 130-31 (App. Div. 2002); Macri v. Ames McDonough Co., 211 N.J. Super. 636, 642-43 (App. Div. 1986). This is not a res ipsa loquitor situation in which the presence of the design defect or the warning deficiency is a non-technical matter that can be determined by lay jurors with specialized expert testimony. Cf. Jerista v. Murray, 185 N.J. 175, 197-99 (2005). Consequently, the trial court correctly granted summary judgment in Crown's favor.
Plaintiff's negligence claims against Raymond also suffer from a failure to demonstrate wrongful conduct that proximately caused plaintiff's injuries. The "broken key" theory discussed at length in the litigation is, for the reasons we have already explained and as the trial court essentially found, a red herring. Plaintiff repeatedly averred under oath that the forklift was switched off before he attempted to come off the machine.
Plaintiffs' theory that Raymond somehow negligently caused the accident because it should have better restricted access to the maintenance room is illogical. The exact location of the accident is irrelevant to the fact that plaintiff's leg was crushed. The incident could have just as readily happened in the general area of the shop as in the maintenance room. We therefore affirm summary judgment in favor of Raymond as well.
Having fully considered the balance of plaintiffs' arguments on appeal, we find that they lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
In sum, although this was an unfortunate and serious workplace accident, we concur with the trial court's conclusion that plaintiffs failed to demonstrate a viable cause of action that would make either Crown or Raymond legally responsible for plaintiff's injuries. Based on the record amassed before us, plaintiffs are legally precluded from recovering any sums from Crown or Raymond beyond what plaintiff recovered from his employer in the Division of Workers' Compensation.