Plaintiff Merri Chapin, while on her way home from work on a rainy and very windy day, was struck by a tree limb that came through her windshield and pierced her left arm and abdomen. The tree limb was alleged to be from one of two trees on Defendant Kathleen Samaras’s property. In Chapin v. Samaras, 2014 N.J. Super. Unpub. LEXIS 620 (App. Div. 2014), a negligence lawsuit filed by Chapin against Samaras, the plaintiff argued that Samaras’s answer should be suppressed due to the defendant trimming her trees after the accident and, thus, spoliating the evidence.
While the trial court denied the plaintiff’s motion to suppress her answer, the Appellate Division reversed and remanded. The appeals court found that a number of questions needed to be answered before a decision could be made whether there was actual spoliation and, if so, what remedy would apply.
In this case, the plaintiff’s attorney put the defendant’s homeowner’s carrier on notice 3 months after the accident that he was continuing his investigation to confirm that the tree that fell was located on its insured’s property. Further, he notified the carrier that the plaintiff’s PIP carrier would be making a subrogation claim to recover its PIP payments for this accident. The defendant’s carrier denied liability for the claim.
About one year post accident, the plaintiff filed this personal injury action, alleging that the tree limb came from a tree located in front of Samaras’s residence. Thereafter, about 18 months post accident, after the defendant was served with suit, the plaintiff’s attorney noticed that the trees on Samaras’s property were being trimmed. He immediately faxed a letter to the defendant’s attorney, demanding that the work be stopped.
Under New Jersey law, spoliation of evidence is the concealment or destruction of evidence relevant to litigation. The Appellate Division determined that, the defendant, as a potential tortfeasor who was put on notice of the claim within 3 months after it occurred, may have a duty to preserve evidence when (1) litigation is pending or likely; (2) the alleged spoliator has knowledge of such litigation; (3) the evidence is relevant; and (4) the non-spoliating party is prejudiced.
The Appellate Division remanded the matter back to the trial court to decide a number of factual issues to determine whether there was actual spoliation in this case. The trial court would need to determine: (1) when the duty to preserve the trees arose and whether the trees were significantly altered before that time; (2) whether a third party performed tree work that significantly altered the trees before the defendant trimmed them; (3) whether, absent spoliation, the plaintiff would have been able to prove the trees were negligently maintained without an expert; (4) whether the plaintiff waited an unreasonably long time to obtain evidence of the negligence and have an expert examine the trees; (5) whether the plaintiff should have had the tree stumps and any remaining portion of the trees examined by her expert; and (6) whether there was a sufficient factual basis to conclude that the trees were the cause of the plaintiff’s injury. After the trial court made these factual determinations, then it would need to consider what if any sanctions should be applied.
This case bears out the importance in preserving evidence when one is put on notice of a pending claim. When a potential claim arises and, certainly, when suit is filed, carriers and defense counsel should be diligent in reminding their insureds to preserve any pertinent evidence, which could range from hard evidence, such as a tree in this case, to digital evidence in the form of emails or other computer data.
