STEPHANEE THOMPSON v. STATE OF NEW JERSEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STEPHANEE THOMPSON, individually, as General Administratrix and Administratrix ad Prosequendum of the Estate of Brandon Thompson, deceased,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY, COUNTY OF

CAMDEN, STATE OF NEW JERSEY OFFICE

OF INFORMATION TECHNOLOGY, OFFICE OF EMERGENCY TELECOMMUNICATIONS SERVICES, and DONALD LINDSEY,

Defendants,

and

CITY OF CAMDEN and CAMDEN POLICE DEPARTMENT,

Defendants-Respondents.

___________________________________________

September 17, 2015

Argued March 2, 2015 Decided

Before Judges Lihotz and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3879-10.

Stephen W. Guice argued the cause for appellants.

James H. Waller argued the cause for respondents.

PER CURIAM

Plaintiff Stephanee Thompson, individually and as administratrix of her deceased minor son's estate, appeals from the Law Division's entry of summary judgment in favor of defendants City of Camden and Camden Police Department, dismissing her complaint. Plaintiff's complaint sought damages arising from her four-year-old boy's fatal injury during a shootout between her brother and another on the streets of Camden. The day before the shooting, plaintiff called the police when she saw the shooter riding his bike with a machine gun near her home. She did not give the police her home address or correct name, but told them where she saw the suspect and what he looked like. She claimed the police did not conduct a thorough investigation because they did not speak to anyone or adequately look for the shooter; if they had, they would have arrested him and the shooting would never have occurred.

Plaintiff also raised as a defense to summary judgment the municipality's spoliation of evidence from a police department internal affairs (IA) investigation. During depositions, defendants' witnesses revealed the investigation conducted five years earlier. Despite plaintiff's repeated demand for any related documents nothing related to the investigation was supplied.

On summary judgment, the motion judge found plaintiff's claim was barred by immunities provided by the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, and plaintiff's spoliation claim lacked merit because the information she sought concerning the IA investigation was obtainable through other sources.

On appeal, plaintiff argues the Law Division should not have granted summary judgment because of defendants' spoliation of the IA investigation materials, the TCA immunities did not apply to the police officers' conduct, and material issues of fact existed that precluded the entry of summary judgment. Defendants disagree and argue summary judgment was properly entered, regardless of the spoliation claim, as the TCA barred plaintiff from recovering, and the police were not negligent, as they did not owe plaintiff a duty to apprehend and detain the shooter. Even if they did, defendants argue the police's actions were not the proximate cause of the tragic death of plaintiff's son.

We have considered these arguments in light of our review of the record and applicable legal principles. We affirm.

We discern the following facts and procedural history from the record, viewed in the light most favorable to plaintiff, the non-moving party. Robinson v. Vivirito, 217 N.J. 199, 203 (2014) (citations omitted).

Plaintiff's four-year-old son, Brandon Thompson, was killed on August 4, 2008, when a stray bullet fatally struck him during a shootout on Norris Street in Camden between plaintiff's brother, Martin Pierce, and Donald Lindsey. Plaintiff knew Lindsey s first name was "Donald," but did not know his last name. She was familiar with Lindsey, having seen him "[j]ust about every day" near his girlfriend s residence, which was across from plaintiff s sister s home on Norris Street and "[a]round the corner" from plaintiff s residence on Sheridan Street.

The day before this tragedy, plaintiff was walking to the corner store, about three or four houses from her sister's residence, when she saw Lindsey ride past her on a bicycle brandishing a firearm. She knew her brother was involved in prior altercations with Lindsey, but had never seen Lindsey with a firearm. She immediately entered her sister's home to retrieve her cell phone, went back outside, and called 911 to report her observations.

The transcript from the 911 call indicated plaintiff described Lindsey s appearance, but stated she "d[id]n't know his name." Plaintiff advised she saw him displaying a gun "right around the corner" of Sheridan Street while she "was coming out [of] the corner store on Cove [sic] and Sheridan." However, she did not give Lindsey s girlfriend's address his "most likely" location and provided a false name, identifying herself as "Stephanee Bates."

After making the call, plaintiff immediately returned to the corner store to await the police's arrival, which never occurred. She explained if the police had responded before her return, she would have seen them drive directly past her. Plaintiff stated she "kn[e]w they did not respond"1 because she waited outside the store "almost all day." She "s[aw] cops periodically go this way, go that way," but they did not stop or appear to be "looking for a suspect to a point [where she] could waive them down." She thought the police would call her back if they had questions or difficulty investigating.

The police record, entitled "Call [f]or Service Detail Report" (Detail Report), included the description plaintiff provided the 911 operator and noted the incident occurred at "COPE@SHERIDAN." Two units were dispatched to the scene: unit 285, which was manned by Officer Ella Roberts,2 and unit 289, which was manned by Officers John Kelly and Douglas Rowand. According to the Detail Report and the units' patrol logs, both units were dispatched at approximately 4:48 p.m.; unit 289 arrived at approximately 4:51 p.m. and completed the call at approximately 5:02 p.m.; and unit 285 completed the call at approximately 4:55 p.m.3 Kelly stated the Detail Report indicated his unit "circulated the area . . . based on the information received," but was "unable to locate" the suspect. Kelly cleared the call and drove to nearby Louis Street to continue surveying the area, but was still unable to locate the suspect.

Kelly recognized policy typically required officers responding to shots fired to interview "anyone in the area," but clarified interviews are not conducted absent shots fired and an identified complaint or suspect. Nevertheless, he "[a]bsolutely" would have interviewed anyone he saw in the area. He explained police can request dispatch call back a 911 caller if a suspect cannot be located "right away . . . especially on a gun job."

At approximately 4:00 p.m. the next day, Brandon departed plaintiff's residence and walked toward plaintiff s sister s home. Plaintiff and her other sister watched over Brandon and other children from a house at the corner of Norris and Sheridan Streets. Before Brandon entered her sister s residence, plaintiff saw Lindsey arrive on a bicycle. She ran towards Brandon as Lindsey "pulled [a] gun out and started shooting." A shootout between Lindsey and Pierce ensued, and, within seconds, Brandon was shot and was lying in a "pool of blood." Brandon and plaintiff were transported to Cooper Hospital where Brandon was pronounced dead.4

Kelly and Rowand both testified at deposition IA conducted a follow-up investigation into the department's response to the 911 call. Kelly did not recall being questioned during the investigation, and did not know anything about the investigation other than its occurrence. Rowand reported he and Kelly were instructed to write a report of the incident, but noted he could not recall whether they jointly or separately composed a report. He stated he was not interviewed by IA and was unaware of any IA report generated using his written response to the incident. When asked other questions about the IA investigation, Rowand often responded "I don't know" or "I don't remember."

In September 2013, the motion judge considered defendants' summary judgment motion and counsels' oral arguments. The judge granted defendants motion, finding defendants immune from liability under the TCA. The judge stated

[C]ases applying immunity provisions of N.J.S.A. 59:5-4 have generally interpreted those provisions in a manner which would lead to immunity . . . here. Thus, in Lee v. Doe, [ 232 N.J. Super. 569 (App. Div. 1989),] the court found . . . the alleged wrongdoing lay in [the] alleged police inactivity, and thus, it concluded that the statutory immunity applied.

Similarly, [in] Wuethrich v. Delia, [ 155 N.J. Super. 324 (App. Div.), certif. denied, 77 N.J. 486 (1978)] . . . the court affirmed the grant of summary judgment, dismissing a claim against the municipality, based on an alleged police failure to respond . . . . The court found that the municipality was free from liability for failure to act or to arrest the culprit under the immunity granted under N.J.S.A. 59:5-4 and 59:5-5.

Based upon those immunities and the facts of this case, I believe I am constrained to grant . . . [defendants'] motion to those counts of the complaint . . . alleging negligence.

The judge also dismissed plaintiff's spoliation claim, explaining

In this case . . . plaintiff had access to all the evidence, that is, the depositions of all the individual police officers were taken. Further, I can't find that there was any fraudulent action on the part of the City in not being able to locate this particular report. All the information that was in the report was accessible from other sources, i.e., the individuals who were questioned.

In November 2013, the judge denied reconsideration, finding "no basis for . . . reconsider[ation]" as plaintiff failed to demonstrate the court "acted either [o]n . . . a palpably incorrect or irrational basis, or that there was information the [c]ourt was not aware of and did not take into consideration." This appeal followed.

"In our de novo review of a trial court s grant or denial of a request for summary judgment, we employ the same standards used by the motion judge under Rule 4:46-2(c)." Manhattan Trailer Park Homeowners Ass'n v. Manhattan Trailer Court & Trailer Sales, Inc., 438 N.J. Super. 185, 193 (App. Div. 2014) (citing Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014)). Therefore, we apply the standard articulated in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995), requiring a court, when making

a determination whether there exists a "genuine issue" of material fact that precludes summary judgment . . . to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.

[Id. at 540.]

Accord Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013); Davis v. Devereux Found., 209 N.J. 269, 286 (2012). This standard permits the court to consider "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Brill, supra, 142 N.J. at 533 (citation and internal quotation marks omitted).

"The very object of the summary judgment procedure . . . is to separate real issues from issues about which there is no serious dispute." Shelcusky v. Garjulio, 172 N.J. 185, 200-01 (2002). While we must view the evidence in the light most favorable to non-movant, "[c]ompetent opposition requires competent evidential material beyond mere speculation and fanciful arguments." Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014) (quoting Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 426 (App. Div. 2009)) (internal quotation marks omitted), certif. denied, 220 N.J. 269 (2015). A motion for summary judgment will not be precluded by bare conclusions lacking factual support, Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011), self-serving statements, Heyert v. Taddese, 431 N.J. Super. 388, 413-14 (App. Div. 2013), or disputed facts "of an insubstantial nature." Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on R.4:46-2 (2015). If "the evidence is so one-sided that one party must prevail as a matter of law," we "should not hesitate to grant summary judgment." Brill, supra, 142 N.J.at 540 (citation and internal quotation marks omitted).

We first address plaintiff's assertion that the immunities provided by the TCA are inapplicable to her claim. Plaintiff does not dispute an officer is not liable for failing to respond to a request for help, but argues an officer who does respond must not do so negligently. She contends the responding officers here negligently performed ministerial duties required during their investigation, and thus are not immunized for negligence by the TCA, which protects only the performance of discretionary duties. She relies upon the officers' failure to interview anyone and conclusion of their investigation within minutes. We disagree with this analysis.

New Jersey's common-law doctrine of sovereign immunity has been replaced by the TCA, which governs negligence claims against public entities. See Rochinsky v. State, Dep't of Transp., 110 N.J. 399, 404 (1988). "'[T]he public policy of this State is that public entities shall be liable for their negligence only as set forth in the [TCA].'" Dickson v. Twp. of Hamilton, 400 N.J. Super. 189, 195 (App. Div.) (first alteration in original) (quoting Pico v. State, 116 N.J. 55, 59 (1989)), certif. denied, 196 N.J. 461 (2008). "The Legislature provided broad immunity protection for public entities [within the TCA] because 'the area within which the government has the power to act for the public good is almost without limit and therefore government should not have the duty to do everything that might be done.'" Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 459 (2009) (quoting N.J.S.A. 59:1-2).

The TCA provides "a public entity is 'immune from tort liability unless there is a specific statutory provision' that makes it answerable for a negligent act or omission." Polzo v. Cnty. of Essex, 209 N.J. 51, 65 (2012) (quoting Kahrar v. Borough of Wallington, 171 N.J. 3, 10 (2002)). "When both liability and immunity exist, immunity prevails." Dickson, supra,400 N.J. Super. at 195 (citations omitted).

In examining whether a governmental entity is liable, "courts should employ an analysis that first asks whether an immunity applies and if not, should liability attach." Bligen v. Jersey City Hous. Auth., 131 N.J. 124, 128 (1993) (emphasis removed) (citation and internal quotation marks omitted). The public entity "has the burden to plead and prove [its] immunity under the TCA." Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 582 (2009) (citing Kolitch v. Lindedahl, 100 N.J. 485, 497 (1985)).

The TCA avers "[n]either a public entity nor a public employee is liable for failure to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service." N.J.S.A.59:5-4. Similarly, "[n]either a public entity nor a public employee is liable for injury caused by the failure to make an arrest . . . ." N.J.S.A.59:5-5; see also Lee, supra, 232 N.J. Super. at 575-78; 581 (finding police officers immune from liability for failure to arrest under N.J.S.A. 59:5-5, reasoning they did not "increase[] plaintiff's risk of harm" or "induc[e] reliance upon their protection").

The TCA further states "[a] public employee is not liable for an injury resulting from the exercise of judgment or discretion vested in him [or her]." N.J.S.A.59:3-2(a); see alsoN.J.S.A.59:2-3(a) (public entity parallel containing the same language). These sections, however, do not exonerate negligence arising out of acts or omissions in executing ministerial functions. N.J.S.A.59:2-3; N.J.S.A.59:3-2.

Accordingly, the TCA does not immunize police officers for negligence in performing ministerial duties rather than discretionary actions. S.P. v. Newark Police Dep't, 428 N.J. Super. 210, 230 (App. Div. 2012); see Suarez v. Dosky, 171 N.J. Super. 1, 10 (App. Div. 1979) (holding "N.J.S.A. 59:5-4 [will] not insulate police officers from unfortunate results of their negligently executed ministerial duties"), certif. denied, 82 N.J. 300 (1980). "A 'discretionary act . . . calls for the exercise of personal deliberations and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.'" Ibid. (quoting Kolitch, supra, 100 N.J. at 495) (emphasis removed) (citation and internal quotation marks omitted). Conversely, "a ministerial act is 'one which a person performs in a given state of facts in a prescribed manner in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety of the act being done.'" Id. at 231 (quoting Morey v. Palmer, 232 N.J. Super. 144, 151 (App. Div. 1989) (citation and internal quotation marks omitted). The public entity has the burden "to establish whether discretion was exercised." Ibid. (citing Kolitch, supra, 100 N.J. at 497).

Here, it is undisputed defendants investigated plaintiff's 911 call, and the record shows defendants performed discretionary rather than mandatory acts in doing so. Unlike Suarez, supra, 171 N.J. Super. at 1, where the officers performed the ministerial duty of assisting individuals stranded at the side of the road, the officers response here to plaintiff's emergency call required discretion. See id. at 9-10. The officers were summoned to deliberate the facts, including the limited information plaintiff provided in her 911 call, that they could not locate a witness or suspect, and the proper allocation of officer resources to this call over others. See id. at 9. Based on these facts, they reached a reasoned conclusion that a continued investigation would be fruitless. See S.P., supra, 428 N.J. Super. at 230-31 (distinguishing discretionary from mandatory acts). Moreover, leaving the area of the corner store was reasonable, as the officers knew the suspect, who was on a bicycle, could be far from the corner store upon their arrival. Therefore, the officers were performing discretionary rather than ministerial duties in investigating the 911 call. They are not exempt from immunity. See Suarez, supra, 171 N.J. Super. at 9.

Plaintiff also argues provisions in the Police Training Commission's Basic Course for Police Officers (Trainee Manual) imposed upon defendants a ministerial duty "to locate and identify all potential witnesses and to interview them for information when dispatched to a possible or actual crime scene."5 Div. of Criminal Justice Police Training Comm'n, Basic Course for Police Officers Trainee Manual, 5-1 to 5-22, 12-1 to 12-20 (Jan. 1, 2006). However, the Trainee Manual merely identifies performance objectives to be completed by police trainees, and is not a formal code of conduct or performance manual. Further, the Eyewitness Identification section plaintiff highlights addresses "procedures for conducting a proper show up, photo array, and lineup," and, thus, is irrelevant here.6 Id. at 5-19.

Plaintiff also cites the opinion of her expert, James A. Williams, Ph.D., a legal consultant, who opines defendants failed to perform ministerial duties. Williams stated the Trainee Manual "cites the duties and responsibilities of a responding officer," and concluded the responding officers willfully violated the Trainee Manual by failing to adequately investigate the 911 call. He explains Rowand, for example, was in the area for approximately ten minutes, which would have given plaintiff "ample time to walk from her residence one block, along Sheridan St. to Cope St . . . [and] given . . . Rowand time to attempt to locate any area witnesses." This, he concludes, supports plaintiff's allegations the police did not respond to her call.

Even if the Trainee Manual does impose duties upon the officers, the TCA generally "provides police with an unqualified immunity for failure to make an arrest," notwithstanding laws or policies containing mandatory language. See S.P., supra, 428 N.J. Super. at 229 (concluding the Prevention of Domestic Violence Act of 1991 did not trump the TCA s immunity by imposing a ministerial function, as police still retained discretion to determine whether the alleged victim was a victim of domestic violence). While ministerial duties include the "duty to investigate information from citizens concerning unlawful or criminal activity, the failure of the police to make an arrest as a consequence does not subject the municipality to tort liability." Wuethrich, supra, 155 N.J. Super. at 326 (citation omitted); see also Wuethrich v. Delia, 134 N.J. Super. 400, 405 (Law Div. 1975) (noting police "made no response" to citizen warnings about an individual who murdered another in the same area twelve hours later). This is because "[a] public entity such as a municipality is not liable in tort for its failure to protect against the criminal propensity of third persons." Wuethrich, supra, 155 N.J. Super. at 326 (citing Setrin v. Glassboro State College, 136 N.J. Super. 329 (App. Div. 1975)).

Here, the TCA immunizes defendants for failure to arrest. Kelly and Rowand testified, and police records confirm, two units comprised of three officers were dispatched to the corner address plaintiff provided. The officers provided they left after no suspect matching plaintiff's description of the assailant was identified, and Kelly stated they would have interviewed anyone they saw. While plaintiff maintains she did not observe any officers attempt to investigate, despite being outside near the corner address for "over an hour," she testified to being inside for a short period of time and even saw police cars drive past her. The officers were constrained by the limited information plaintiff provided. Moreover, the officers did not "increase[] plaintiff's risk of harm" or "induc[e] reliance upon their protection." Lee, supra, 232 N.J. Super. at 581. As immunity under the TCA is the general rule and liability the exception, defendants are entitled to immunity. See Dickson, supra, 400 N.J. Super. at 195.

Even if immunity did not exist, we conclude plaintiff could not establish defendants' proximately caused her child's death. Plaintiffs argued proximate cause existed because "[i]f [the police] had done any investigation, and even found him, than it probably would not have happened, and that s the substantial factor . . . in bringing about the harm." (emphasis added). She also asserted proximate cause was a question for the jury. Defendants contended plaintiff's position relied upon a litany of assumptions, such that she could not "prove proximate cause as a matter of law." Defendants asserted, in any event, the TCA precluded "liab[ility] for failure to arrest . . . because [its] specific immunities . . . supercede[d] the general immunities."

The motion judge did not specifically address proximate cause in finding defendants immune under the TCA, reasoning "a public entity is entitled to immunity, unless there is a specific provision . . . imposing liability."

On appeal, plaintiff maintains "substantial questions of fact [exist] for a jury to decide" the issue of proximate cause. Defendants disagree, arguing notwithstanding their immunity under the TCA, summary judgment was proper because there is no genuine issue defendants did not proximately cause Brandon's death. They contend the causal chain between defendants' investigation and Brandon's death is too attenuated, such that establishing a causal link requires assuming Lindsey did not ride his bicycle far from the corner store; the police located Lindsey; Lindsey was in possession of a firearm; police had probable cause to arrest Lindsey; and Lindsey was not released the next day.

Under the TCA, an exception to the general rule of public entity immunity exists for injuries "proximately caused by an act or omission of a public employee within the scope of his employment." N.J.S.A. 59:2-2; see also Townsend v. Pierre, 221 N.J. 36, 51 (2015) (explaining "[t]o sustain a cause of action for negligence, a plaintiff must establish four elements: '(1) a duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages'" (emphasis added) (quoting Polzo, supra, 196 N.J. at 584)). The Court has defined "proximate cause" as "any cause which in the natural and continuous sequence, unbroken by an efficient intervening cause, produces the result complained of and without which the result would not have occurred." Townsend, supra, 221 N.J. at 51 (citation and internal quotation marks omitted); see also Model Jury Charge (Civil), 6.10, "Proximate Cause General Charge to Be Given in All Cases" (1998).

"Generally, our concepts of causation for failure to act . . . [contemplate] whether the negligent conduct may be considered a substantial factor contributing to the loss." Conklin v. Hannoch Weisman, 145 N.J. 395, 419 (1996); see Brown v. United States Stove Co., 98 N.J. 155, 171-72 (1984) (recognizing a tortfeasor proximately causes a result where "negligent conduct [is] a substantial factor in bringing about the injuries" (citations and internal quotation marks omitted)). "The substantial factor test accounts for the fact that there can be any number of intervening causes between the initial wrongful act and the final injurious consequence and does not require an unsevered connecting link between the negligent conduct and the ultimate harm." Conklin, supra, 145 N.J. at 420. Nevertheless, an unforeseeable, intervening criminal act relieves the negligent tortfeasor of liability. Mack Trucks, Inc. v. Reading Co., Inc., 148 N.J. Super. 387, 396 (App. Div. 1977).

Questions of proximate cause are generally issues for the jury. See Komlodi v. Picciano, 217 N.J. 387, 419 (2014); Beadling v. William Bowman Assocs., 355 N.J. Super. 70, 88 (App. Div. 2002). However, a court may grant summary judgment where there is no genuine issue about proximate cause. Brill, supra, 142 N.J.at 545; Johnson v. Schragger, Lavine, Nagy & Krasny, 340 N.J. Super. 84, 91 (App. Div. 2001).

Here, the record presents no genuine issue that defendants were not a substantial factor causing Brandon's death, as their causal connection to the murder is too attenuated. That defendants were warned of Lindsey's possession of a firearm and may have had the opportunity to locate him does not transform their inability to do so into a "substantial factor" causing his decision to open fire in a public place in the middle of the day. Plaintiff's assertion that a better investigation "probably" would have prevented Lindsey's actions falls short of the standard.

While the substantial factor test does not require "an unsevered connecting link," Conklin, supra, 145 N.J. at 420, Lindsey's subsequent shooting was not reasonably foreseeable, particularly in light of plaintiff not reporting shots fired and the volume of emergency calls involving firearms to which Camden Police likely respond daily. Lindsey's unforeseeable, intervening, volitional criminal act broke the causal chain. See Mack Trucks, supra, 148 N.J. Super. at 396.

Plaintiff further claims summary judgment should be reversed because defendants' failure to produce the IA investigation file resulted in spoliation of "crucial evidence." She asserts the file would have provided "substantial additional evidence" to aid her in proving defendants negligently handled the 911 call. She argues spoliation may give rise to certain sanctions, and these sanctions could have impacted the motion judge's ruling and her ability to prove her case. We disagree because the file was not material to plaintiff's action; she had access to information contained in the report from other sources, namely the responding officers; and her case was not impaired by the absence of the file.

New Jersey does not recognize a separate tort for spoliation. Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 122 n.6 (2008). Rather, "spoliation claims, as between parties to a particular litigation, are technically claims for fraudulent concealment." Ibid. (citing Rosenblit v. Zimmerman, 166 N.J. 391, 406 (2001)). "'Spoliation of evidence . . . occurs when evidence pertinent to the action is destroyed, thereby interfering with the action's proper administration and disposition.'" Manorcare Health Servs., Inc. v. Osmose Wood Preserving, Inc., 336 N.J. Super. 218, 226 (App. Div. 2001) (quoting Aetna Life and Cas. Co. v. Imet Mason Contractors, 309 N.J. Super. 358, 364 (App. Div. 1998)).

"[A] duty to preserve evidence is a question of law to be determined by the court . . . ." Ibid.; see also Aetna, supra, 309 N.J. Super. at 366 (outlining a four-part test to determine when a duty to preserve evidence arises). A party asserting a claim of spoliation must establish

(1) That defendant in the fraudulent concealment action had a legal obligation to disclose evidence in connection with an existing or pending litigation;

(2) That the evidence was material to the litigation;

(3) That plaintiff could not reasonably have obtained access to the evidence from another source;

(4) That defendant intentionally[7] withheld, altered or destroyed the evidence with purpose to disrupt the litigation;

(5) That plaintiff was damaged in the underlying action by having to rely on an evidential record that did not contain the evidence defendant concealed.

[Tartaglia, supra, 197 N.J. at 118 (citation and internal quotation marks omitted).]

Remedies for spoliation of evidence include use of discovery sanctions, an adverse inference, or a separate cause of action for fraudulent concealment. Robertet Flavors, Inc. v. Tri-Form Const., Inc., 203 N.J. 252, 272 (2010); Tartaglia, supra, 197 N.J. at 119-23. Selection of the appropriate remedy, which is at the discretion of the trial court, must be guided by the purposes of the spoliation sanctions: "'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.'"8 Bldg. Materials, supra, 424 N.J. Super. at 472 (quoting Rosenblit, supra, 166 N.J. at 401).

Here, plaintiff cannot establish the five Tartaglia elements to establish a claim of spoliation, as there is no material dispute elements two, three, and five cannot be met. Regarding element two, the IA file's contents were not material to plaintiff's complaint, because, as previously discussed, the record contains evidence sufficiently establishing defendants' immunity under the TCA for their brief investigation and failure to arrest Lindsey. On element three, plaintiff fails to demonstrate she could not have reasonably obtained evidence from the IA file elsewhere. While she asserts the file contained "substantial [and] additional evidence of [the police's] negligence," plaintiff fails to specify the alleged information was unobtainable via other sources. Indeed, plaintiff deposed the responding officers, and was provided with copies of the Detail Report and transcript from her 911 call; it is difficult to conceive of otherwise inaccessible information contained in the file. With respect to element five, plaintiff cannot establish she was damaged in the underlying action for our same reasoning on element two.

While we sympathize with the tragedy of plaintiff's loss and suffering, we have no cause to disturb the motion judge's decision in this matter.

Affirmed.

1 Plaintiff stipulated at oral argument on summary judgment "there's no doubt [the police] responded" despite that her amended complaint maintains they failed to respond.

2 Defendants aver Roberts was deposed, but the transcript does not appear in our record.

3 The record does not reveal when unit 285 arrived at the scene.

4 The record shows both Lindsey and Pierce are serving long sentences for the crimes committed that day.

5 Plaintiff proffers no legal precedent supporting this assertion.

6 The record does not contain the complete Trainee Manual, precluding our review of any provisions concerning discretionary or ministerial functions.

7 Defendants concede a spoliation claim can arise from negligent concealment or destruction of evidence. As we explained, "[w]hen the duty to preserve evidence is violated, the party is responsible regardless of whether the spoliation occurred because of intentional or negligent conduct." Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448, 472-73 (App. Div.) (holding party liable for placing altered files among thousands of unaltered files), certif. denied, 212 N.J. 198 (2012). Nevertheless, the focus is on the impact the spoliation had on the aggrieved party's ability to present their case. Ibid.

8 Plaintiff submits use of the three factors identified in Schmid v. Milwaukee Electric Tool Corporation, 13 F.3d 76 (3d Cir. 1994), is appropriate for selecting the appropriate sanction for spoliation. Id. at 79 (listing key considerations of degree of fault, degree of prejudice, and whether a lesser sanction is appropriate). However, our State's Supreme Court has opined the Schmid factors "are important considerations, but they are not the only ones," listing many other key factors including the identity of the spoliator, manner of spoliation, timing of spoliation, and reason why spoliation occurred. Robertet, supra, 203 N.J. at 280-82. Moreover, the determination of the appropriate sanction for defendants' alleged concealment of the IA file is not relevant on this appeal.