RONALD LEIS v. NEC CORPORATION OF AMERICA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0750-09T30750-09T3

RONALD LEIS,

Plaintiff-Appellant,

v.

NEC CORPORATION OF AMERICA

D/B/A NEC AMERICA, NEC

SOLUTIONS AMERICA and NEC USA,

individually, jointly, severally

and/or in the alternative,

Defendants-Respondents.

_________________________________

 

Argued: April 14, 2010 - Decided:

Before Judges Axelrad and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-803-07.

Stephen W. Guice argued the cause for appellant.

Barbara J. Davis argued the cause for respondents (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Ms. Davis, of counsel and on the brief; Jessica D. Wachstein, on the brief).

PER CURIAM

Plaintiff Ronald Leis appeals summary judgment dismissal of his complaint against NEC Corporation of America d/b/a NEC America, NEC Solutions America and NEC USA (collectively "NEC"), the manufacturer, installer and maintenance company for a phone system for his employer that produced an electric shock causing injuries to him. Plaintiff's complaint alleged breach of contract and negligence, and violation of the New Jersey Product Liability Act ("PLA"), N.J.S.A. 2A:58C-l to -11, and the New Jersey Consumer Fraud Act ("CFA"), N.J.S.A. 56:8-1 to -167. We reverse and remand.

We consider the facts in the light most favorable to plaintiff, the non-moving party, based on deposition testimony, witness statements and expert reports. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29, 540 (1995). On March 7, 2005, plaintiff, a floor supervisor at the Sands Hotel and Casino ("Sands"), first picked up a phone in a pit where he was working, but there was so much static that he did not even try to make a call. When he tried a second time there was much less static. He pushed one button, at which time an electrical current came out of the receiver and into his left ear. This was witnessed by Lori Wheaton, a pit manager at the Sands. Plaintiff sustained left ear tinnitus and hearing loss, a cerebral spinal fluid leak, scarring on the left side of his head and face following surgery, and aggravation of a pre-existing psychiatric condition.

Plaintiff testified in depositions that the pit had been reconfigured, the same phone had been in the pit before and after the reconfiguration and the phone had only been in that location "approximately one day, if that." He believed he may have been the first one to work in the pit after it was reconfigured. He further stated the incident occurred the first time he dialed the phone that day, and he was not aware of anyone else using the phone or having a problem with it. He also explained that immediately after the incident, Wheaton disconnected the phone and, as she picked up the base, both he and Wheaton heard a rattling in the base of the phone. Wheaton related that the phone worked fine for her even after the incident, although she heard some static on the line.

Sands' phone system was manufactured and installed by NEC and subject to an on-site maintenance contract. According to Timothy Reed, NEC's full-time, on-site technical specialist at Sands at the time of the incident, his job included "maintain[ing] the phone system and . . . do[ing] any moves, adds or changes that were required." He also testified that when a pit was reconfigured, it was his obligation to move and install any telephones necessary for the reconfiguration. Reed stated he was not required to keep any records of changes or maintenance done on the phone system, nor did NEC or Sands keep records of his work.

About three months after the incident, Sands and NEC were notified of plaintiff's injuries by letter, which also requested that the phone be held as evidence. The record does not reflect what happened to the phone after Wheaton placed it in a drawer following the incident. When she returned to work two days later, it was not in the drawer and a functioning phone was back in place. According to plaintiff, a representative of Sands sent an email stating that the "original phone disappeared shortly after the date of the incident." Reed testified he was first informed of the incident about a year after it occurred.

Plaintiff retained an expert in the field of electronic control and communications systems, Roger Boyell. Boyell examined a phone similar to the one involved in the incident, though it did not exhibit the metallic rattle. He opined that a metallic rattle would indicate that an internal component had become dislodged, which "could fracture the wires, resulting in intermittent electrical connection, or could short-circuit the wires resulting in abnormal electrical current flow." Boyell concluded that, "to a reasonable scientific certainty, the injury to [plaintiff] was due to a physically loose electrical component within the telephone instrument. The loosened component compromised its electrical connections, and during use of the telephone the resulting electrical surge generated abnormally loud noise from the earpiece."

Sands' electrical engineering consultant found "no technical basis" for plaintiff's claims. He was of the opinion the phone system was properly manufactured and installed in the casino.

Plaintiff filed a separate workers compensation claim and this action against NEC. The complaint asserts five counts against NEC and similar allegations against John Doe installers and Richard Roe maintenance. The counts appear to allege either or both defective and negligent design, manufacture and installation and failure to warn (count one); violation of the CFA (count two); defective manufacture resulting in a product not fit for its intended use (count three); breach of warranty that the product was fit for its intended use (count four); and strict liability (count five). During the course of oral argument, plaintiff's counsel described the claims as brought under "contract . . . implied and expressed warranties . . . negligence and warnings."

In granting summary judgment on all claims, memorialized in an order of July l7, 2009, the court viewed the allegations as consisting of three claims -- the CFA claim, a PLA claim and "a claim for breach of NEC's contractual responsibility to maintain as needed and repair telephones which it had the contractual undertaking to do." The court denied reconsideration in a memorandum of decision and order of August 28, 2009. This appeal ensued.

On appeal, plaintiff argues: (1) the court erred in failing to properly analyze his claims in terms of conventional common law negligence and plaintiff submits he presented evidence sufficient to raise a debatable question on that issue; (2) the court erred in concluding that NEC properly discharged its contractual duty to maintain the phone system; and (3) the court erred in not addressing his claim of spoliation of evidence.

We are satisfied plaintiff's complaint asserts a cause of action in common law tort, namely an allegation that NEC had a duty of care based on its contractual obligation to move and install the phones in a safe manner after the pit was reconfigured and it was foreseeable the failure to do so could have caused injury to someone using the equipment. See, e.g., Polzo v. County of Essex, 196 N.J. 569, 584 (2008). Based on our review of the record and applicable law, we are also satisfied the court failed to consider plaintiff's common law negligence cause of action in its analysis and grant of summary judgment to NEC. Moreover, viewing the evidence in the light most favorable to plaintiff, we find he presented evidence sufficient to raise a jury question as to whether NEC breached its duty of care. See Jerkins v. Anderson, 191 N.J. 285, 305 (2007); Brill, supra, 142 N.J. at 540.

We are also persuaded that plaintiff presented sufficient evidence to withstand summary judgment on his breach of contract claim based upon Reed's admission that he was obligated to move and install any telephones necessary for the reconfiguration. It is undisputed there was a reconfiguration of the pit shortly before the incident.

On plaintiff's claim of spoliation of evidence, we find there was no basis presented for sanctions or an adverse inference against NEC. Spoliation is a "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). Upon a finding of spoliation, a court may impose a variety of civil remedies in order to make whole, as nearly as possible, the litigant whose cause of action has been impaired by the absence of crucial evidence, to punish the wrongdoer, and to deter others from such conduct. Id. at 401. Such remedies include a spoliation inference that "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" or pay reasonable expenses resulting from his or her conduct, including attorney's fees. Id. at 401-03. Here, however, even affording plaintiff all favorable inferences, the record is devoid of any evidence that NEC had possession of the phone after plaintiff's incident, let alone evidence of any intentional act by NEC to conceal or destroy it. The record does not reflect what happened to the phone after the incident or whether it was even available when plaintiff's attorney sent the letter to Sands and NEC three months later. Nothing in the record demonstrates that Sands returned the phone to NEC for repair or replacement. Moreover, NEC's on-site technician did not inspect or repair the phone after the incident; in fact, he certified he was not aware of the incident until a year later.

Reversed and remanded.

 

At oral argument of the summary judgment motion, plaintiff essentially abandoned his CFA claim.

(continued)

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A-0750-09T3

May 6, 2010