The Appellate Division on November 27, 2019 rendered an unpublished Opinion on the issue of alleged spoliation of evidence. The matter is Promise v. Khubani Enterprises, Inc., 2019 WL 6353644 (App. Div. Nov. 27, 2019).
In July of 2014, Plaintiff Betty Promise was reportedly seated in a chair in the basement of the laundry room of her apartment building for approximately 30 minutes before a leg on the chair gave way. The building was owned by Defendant Khubani and the chairs in the laundry room were installed and maintained by Defendant Mac Gray Services.
The chair in question was part of a set of chairs that were connected to each other. Plaintiff had reportedly been seated on an end chair. She alleged that the leg of the chair “collapsed,” causing Plaintiff to become caught between the chair upon which she had been sitting and the chair connected to it, on her right, before she fell all the way to the floor. Plaintiff was reportedly alone in the laundry room at the time of this incident, and could not free herself, so she called out for help. Two employees of Defendant Khubani came to Plaintiff’s aid. One of those employees, named Osuva, was responsible for maintenance work in the building.
Plaintiff claimed injuries to her shoulder, arm, neck, back and knees.
Members of Plaintiff’s family reportedly took photographs of the chair shortly after the incident and gave those photographs to Plaintiff’s attorney. Thereafter, on August 6, 2014, Plaintiff’s counsel wrote to Defendant Khubani advising of his representation and requesting that Khubani “kindly preserve the chair in question as it is evidence in this case.”
Thereafter, on September 16, 2014, while the chair was still in the possession of Khubani, an individual who identified himself as an attorney for Defendant Khubani reportedly photographed the chair.
Mr. Osuva reportedly stated he did not remember seeing the chair after the photographs were taken in September 2014, and said that he did not know to where the chair had been moved.
At some point in 2016, the laundry room chairs were replaced with new ones by Defendant Mac Gray. Thereafter, the parties realized that the chair was missing, though Defendant Khubani acknowledged that the chair went missing while in its possession.
Plaintiff originally filed a Complaint against Defendant Khubani and the manufacturer of the chair, Caco Manufacturing Corp., and subsequently filed an Amended Complaint including Defendant Mac Gray.
At his subsequent deposition, Mr. Osuva confirmed that a photograph presented to him depicted the chair upon which she found Plaintiff, acknowledging that the left leg of the chair was “a little bent.” He identified another Khubani employee named Sean as an individual who cleaned the chairs and table in the laundry room every morning. Mr. Osuva said that he had never noticed any problems with the chair, and the Plaintiff had apparently not noticed any, either, while she had been seated on the chair. Plaintiff said she had never sat in the chairs before herself, but had seen other people sitting in them.
While the Appellate Division stated it was not clear from the record if or when Plaintiff attempted to examine the chair or have an expert do so, Caco, Khubani and Mac Gray all moved for Summary Judgment. Plaintiff opposed Khubani’s Motion on the grounds that the chair was “destroyed or otherwise disposed of” by Khubani, which required an adverse inference due to spoliation, requiring the same to be left to the jury.
The Trial Judge granted Summary Judgment to Khubani and Mac Gray, finding that while Plaintiff presented a sufficient argument for spoliation, the destruction of the chair was only relevant to a product liability claim on the part of the manufacturer, and neither Khubani or Mac Gray were the designer or manufacturer of the chair. As such, Plaintiff was required to provide evidence that either Khubani or Mac Gray knew or constructively knew or should have known that the chair was defective. The Court found that Plaintiff produced no such evidence.
Plaintiff thereafter appealed only as to Defendant Khubani, arguing that the spoliation of the chair that allegedly caused the injury raises an inference sufficient to preclude Summary Judgment. The Appellate Division disagreed and accordingly affirmed.
The Appellate Division noted that there are different remedies for spoliation of evidence which are dependent in part on the timing of the discovery of the spoliation. Robertet Flavors, Inc. v. Tri-Form Const., Inc., 203 N.J. 252, 273-74 (2010). When the alleged spoliation is discovered in time for the underlying litigation, remedies include a “spoliation inference,” which “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.” Rosenblit v. Zimmerman, 166 N.J. 391, 401-02 (2001)
Further, a Plaintiff may be permitted to file an Amended Complaint to add a fraudulent concealment Count. If added, bifurcation is required because the fraudulent concealment remedy depends on the jury’s assessment of the underlying cause of action. In that instance, after the jury has returned a verdict in the bifurcated underlying action, the jury is then required to determine whether the elements of the tort of fraudulent concealment have been established, and, if so, whether damages are warranted.
Conversely, in circumstances where the spoliation is not discovered in time for the underlying action, Plaintiff may file a separate tort action where he or she is required to establish the elements of fraudulent concealment, and “[t]o do so, the fundamentals of the underlying litigation will also require exposition.” Id. at 408. Specifically, to make a claim of fraudulent concealment, a plaintiff must show: (1) [t]hat the Defendant in the fraudulent concealment action had a legal obligation to disclose evidence in connection with an existing or pending litigation; (2) [t]hat the evidence was material to the litigation; (3) [t]hat plaintiff could not reasonably have obtained access to the evidence from another source; (4) [t]hat defendant intentionally withheld, altered or destroyed the evidence with purpose to disrupt the litigation; [and] (5) [t]hat plaintiff was damaged in the underlying action by having to rely on an evidential record that did not contain the evidence defendant concealed. Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 118 (2008) (citing Rosenblit, 197 N.J. at 406-07).
In Promise, the alleged spoliation of the missing chair was discovered during the underlying litigation. But, because Plaintiff only appealed the Summary Judgment Order as to Khubani, the property owner, any adverse inference about the chair had to be considered in the context of a premises liability/negligence claim.
In a negligence claim, “the landlord of a multiple-family dwelling is subject to the same basic duty as an owner or occupant of commercial property. …” Drazin, N.J. Premises Liability, § 5:2-2 (2019) (citations omitted). An owner of a business property has a duty of care to “discover and eliminate dangerous conditions, to maintain the premises in safe condition, and to avoid creating conditions that would render the premises unsafe.” Arroyo v. Durling Realty, LLC, 433 N.J. Super. 238, 243 (App. Div. 2013) (quoting Butler v. Acme Mkts., Inc., 89 N.J. 270, 275 (1982)). If a Plaintiff cannot show that an owner of a business property had actual or constructive notice of a dangerous condition, “[t]he absence of such notice is fatal to Plaintiff’s claims of premises liability.” Ibid. (citations omitted).
Accordingly, in this matter the Appellate Division held that the record revealed no evidence Khubani had actual or constructive notice of a defective chair in the laundry room. Rather, to the contrary, there was evidence that the chairs were cleaned every morning by a Khubani employee, and nothing in the record indicated the employee ever noticed a problem with the chairs or reported a problem with the chairs to Khubani. Further, Plaintiff herself had seen others sitting in the chairs with no issues, and did not notice anything out of the ordinary during the thirty minutes she sat in the chairs.
Therefore, the Court held that any factual dispute that could arise out of any possible adverse inferences regarding the chair, when considered in the light most favorable to Plaintiff, still could not alter the conclusion that Plaintiff did not demonstrate Khubani had actual or constructive notice of a prior problem with the chair. Therefore, Summary Judgment was appropriate as a matter of law.
Thus, this Opinion is an instructive reminder from the Appellate Division on the applicability of the various aspects of a potential spoliation claim, and what a Plaintiff is required to prove in order to pursue the same.