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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...