United States District Court, D. New Jersey
RAYMOND BENKOVICH and LINDA BENKOVICH, wife, per quod, Plaintiffs,
GORILLA, INC. and CABELA'S WHOLESALE, INC., Defendants.
WILLIAM J. MARTINI, U.S.D.J.
Raymond Benkovich and his wife, Linda Benkovich, bring this
action against Defendants Gorilla, Inc. and Cabela's
Wholesale, Inc., alleging that Defendants violated New
Jersey's Product Liability Act in manufacturing and
distributing a defective hunting tree stand. This matter comes
before the Court upon Defendant Cabela's motion to
dismiss the Complaint with prejudice as a sanction for
spoliation of material evidence. There was no oral argument.
Fed.R.Civ.P. 78(b). For the reasons set forth below,
Cabela's motion to dismiss is DENIED.
following facts are drawn from the Complaint unless otherwise
stated. On November 4, 2014, Raymond Benkovich was hunting in
a wooded area of Basking Ridge, NJ, when he fell roughly
twenty feet from his tree stand to the forest floor. He is
now a paraplegic. Shortly after the fall, officers responded
to Mr. Benkovich's 911 call and helped EMTs transfer him
to a nearby ambulance. The officers then photographed the
area in immediate proximity to the fall and catalogued
various pieces of evidence. Although Plaintiff insists that
he fell from his model Gorilla tree stand (the “Gorilla
stand”), the only stand appearing in the police
photographs and tagged by police as evidence was a
“Loc-On” tree stand. See Def. Mot.
Dismiss, Ex. C.
to the Complaint, Plaintiff was preparing to set up his
Gorilla tree stand when he happened upon a Loc-On stand that
had been left in a tree by another hunter. Hoping to sell the
Loc-On tree stand for a profit, Plaintiff removed the stand
and placed it at the base of a different tree from which he
planned to hunt. He then climbed the tree, strapped the
Gorilla stand around the tree trunk, and fell within seconds
of placing himself in the seat. Depo. Raymond Benkovich
166:23-25, 244:23-245:10, Pl. Opp., Ex. C, ECF No. 47-1.
According to a report taken later that day, Police retrieved
the following items from the scene of the accident: a Loc-On
tree stand, a crossbow, binoculars, a hunting knife, a flash
light, and a camouflage face mask. See Def. Mot.
Dismiss, Ex. B. Conspicuously absent from the police report
was the Gorilla tree stand that Plaintiff alleges he was
using when the injury occurred. Officer Chistopher M.
Albanese testified that the Loc-On was the only stand he
observed at the scene of the accident. See Def. Mot.
Dismiss, Ex. D, 33:12-13. According to Plaintiff, the Gorilla
stand was retrieved from the wooded area the following day by
his friend, Tom Buffalowski. Benkovich Dep.
months after the accident, Plaintiff sold most or all of his
roughly ten tree stands, except for the Gorilla stand.
See Benkovich Depo. 53:18-20. He believes that he
sold the Loc On stand to an unknown buyer on Craigslist.
Id. Before selling the Loc On stand, Plaintiff
removed the police evidence tag and placed the tag on the
Gorilla stand. Plaintiff alleges that he did not foresee that
someone would care to inspect the Loc On stand, since it was
the Gorilla stand which (allegedly) caused his accident.
Id. at 55:21-24, 279:14-23.
and his wife filed the Complaint on October 30, 2015, against
the manufacturer of the stand, Gorilla, Inc., and wholesaler
Cabela's, Inc., alleging that the fall was caused by a
design defect in the clasp mechanism of the “dual
claw” tree strap. ECF No. 1. Defendant Cabela's filed
the pending motion to dismiss on March 22, 2017. Cabela's
argues that Plaintiff spoliated evidence and that dismissal
is warranted because Defendant is unable to inspect the Loc
On tree stand that it believes Plaintiff was using when he
fell. ECF No. 45. Defendant observes from police photographs
that the Loc On stand was “an older,
‘chain-on' model . . . [with] a rusty chain
attached to it.” Id. ¶ 20. Cabela's
suggests that Plaintiff fabricated the story because he knew
that Loc On had gone out of business and was thus unlikely to
pay a judgment. Def. Mot. Dismiss ¶ 17. Plaintiff,
however, notes that Gorilla, Inc., had also entered
bankruptcy as of October 28, 2013. Pl. Opp. ¶
occurs where: the evidence was in the party's control;
the evidence is relevant to the claims or defenses in the
case; there has been actual suppression or withholding of
evidence; and, the duty to preserve the evidence was
reasonably foreseeable to the party.” Bull v.
United Parcel Serv., Inc., 665 F.3d 68, 73 (3d Cir.
2012). District courts have “inherent authority”
to impose a variety of sanctions, including dismissal with
prejudice, suppression of evidence, making an adverse
inference, fines, and fee-shifting. Mosaid Tech. Inc. v.
Samsung Elec. Co., Ltd., 348 F.supp.2d 332, 336 (D.N.J.
2004). “[D]ismissal with prejudice is only appropriate
in limited circumstances and doubts should be resolved in
favor of reaching a decision on the merits.”
Id. In particular, dismissal with prejudice should
be granted only where a party has acted in bad faith.
Bull, 665 F.3d at 79; First Sr. Fin. Grp.,
12-cv-1247, 2014 WL 1327584, at *7 (E.D. Pa. Apr. 3, 2014).
Court's task is to decide whether spoliation occurred,
and, if so, what sanction to impose. Finding spoliation
requires proof of four factors: “the evidence was in
the party's control; the evidence is relevant to the
claims or defenses in the case; there has been actual
suppression or withholding of evidence; and, the duty to
preserve the evidence was reasonably foreseeable to the
party.” Bull v. United Parcel Serv., Inc., 665
F.3d 68, 73 (3d Cir. 2012).
first two factors are met. The Loc On tree stand was
“in [Plaintiff's] control” before he sold it
on Craigslist in the months following his accident, and the
Loc On stand was relevant to Defendant's theory that
Plaintiff fell from the Loc On stand, not the Gorilla stand.
Had Defendant been given an opportunity to inspect the Loc On
stand, it might have uncovered evidence of a defect and
produced additional expert testimony to that effect.
establish the third factor-“actual suppression or
withholding”-a party “must prove that evidence
was intentionally withheld, altered, or
destroyed.” First Sr. Fin. Grp., LLC., 2014 WL
1327584, at *7 (citing Bull, 665 F.3d at 79). The
Third Circuit has held that “a finding of bad faith is
pivotal to a spoliation determination.” Bull,
665 F.3d at 79. Although Plaintiff's actions-particularly
his decision to remove the evidence tag from the Loc On stand
and place it on the Gorilla stand-may raise eyebrows, the
Court is unable to conclude at this time that Plaintiff made
“a deliberate attempt to impede a potential
defense.” MicJan v. Wal-Mart Stores, Inc.,
Civ. No. 14-855, 2016 WL 738052, *10 (W.D. Pa. 2016).
Plaintiff has explained that he sold most of his hunting
equipment because he no longer planned to hunt following his
accident, and he needed cash. As the record stands, the Court
cannot say there exists “no plausible
explanation” for non-production other than bad faith.
Bull, 665 F.3d at 80.
evidence that is considered relevant by a defense counsel in
a products liability action may not have seemed relevant to a
lay person in the aftermath of a catastrophic injury.
Defendant's claim that Mr. Benkovich discarded the Loc On
tree stand because it would have “undermine[d] his
product liability claims” reflects an underlying
assumption that Benkovich is ...