FRANCINE SKLENAR, Guardian Ad Litem for BRANDON FEAKINS, a Minor v. RUBBERMAID, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5209-05T35209-05T3

FRANCINE SKLENAR, Guardian Ad

Litem for BRANDON FEAKINS, a

Minor,

Plaintiff-Appellant,

v.

RUBBERMAID, INC.,

Defendant-Respondent,

and

RONETCO SUPERMARKETS, INC., t/a

SHOP-RITE OF NETCONG #201,

Defendant.

_________________________________________________

 

Submitted May 15, 2007 - Decided

Before Judges Payne and Lihotz.

On appeal from Superior Court of New Jersey,

Law Division, Sussex County, L-153-05.

Laddey, Clark & Ryan, attorneys for

appellant (Andrew A. Fraser, of counsel,

Lauren D. McFadden, on the brief).

James D. Butler, attorney for respondent

(Mr. Butler and Warren C. Farrell, on the

brief).

PER CURIAM

Plaintiff, Francine Sklenar, guardian ad litem for Brandon Feakins, a minor, appeals from an order dismissing with prejudice, as the result of spoliation of evidence, the product liability action filed by Sklenar on her son's behalf against defendants, Rubbermaid, Inc. and RoNetco Supermarkets, Inc. t/a Shop-Rite of Netcong #201. The matter arises from injuries to Feakins's hand sustained on February 21, 1998 when melted Hershey's chocolate that had been microwaved in a Servin'Saver food container manufactured by Rubbermaid allegedly leaked out from a hole in the bottom of the container, causing second-degree burns and resultant scarring.

Shortly after the accident, Sklenar retained counsel who, on April 13, 1998, informed Rubbermaid of the incident and requested that Rubbermaid's insurer be notified of a potential claim. Counsel's correspondence was acknowledged by a letter, dated April 22, 1998, which stated that counsel's notification had been forwarded to Rubbermaid's insurer, Kemper Insurance Company. On June 18, 1998, a Kemper claims representative requested that counsel provide medical reports or an authorization to obtain medical records, and that "future correspondence substantiating your client's demand" be sent to her for "review, evaluation and disposition." The Kemper claims representative met with counsel at his office on June 16, 1998, and a week thereafter, was provided with "original photographs in [counsel's] possession depicting the product and injury to Brandon," as well as medical records to date. A further request for medical invoices was made by Kemper on February 19, 1999, and supplied on March 23, 1999, with a letter that concluded: "Please contact me upon receipt of this information and we can discuss a resolution of this matter."

Following Rubbermaid's change of insurer to AIG, on May 23, 2000, counsel wrote an additional letter, enclosing photographs of the container and Feakins's hand and suggesting settlement discussions. An October 15, 2001 letter by counsel to Sklenar stated that he had "scheduled an appointment for AIG adjusters to travel to my office to inspect the Rubbermaid product." He continued, by stating: "If [the adjusters] do not make a settlement offer thereafter, we will have no alternative but to place this matter in litigation. This requires the use of an expert witness and I was hoping to avoid this cost." The substance of the visit by AIG's representatives, if it occurred, has not been specified. Further letters to AIG, dated July 11, 2003, threatened suit, which was filed on March 15, 2005.

By letter dated September 2, 2005, written in response to correspondence of August 18, 2005, counsel notified the attorneys for co-defendant Shop-Rite that: "Unfortunately, the bowl in question was inadvertently discarded and taken away by the cleaning staff of my office."

At a deposition of Sklenar, conducted on May 11, 2006, she testified that she had purchased the Rubbermaid container, labeled as microwavable, in November 1997, and that it had not been used prior to the incident at issue. She described the incident as follows:

I broke off approximately three, four chocolate bars of a chocolate, you know, big chocolate bar like this, three, four bars, and placed it in the bowl, placed the bowl in the microwave, put it on 40 seconds, took the bowl out . . . . My son's hands were on the counter below . . . the microwave shelf. Took the bowl out, and the chocolate dripped on his hands that were below, his right hand that was below the counter, and burned his right hand.

Sklenar claimed that there was a hole in the bottom of the bowl. However, after she did so, the following exchange occurred:

Q How big was the hole?

A I can't tell you how big the hole was because of the chocolate on the bottom.

Q Did you ever examine the bowl after you took it out of the microwave?

A Yes.

Q Did you ever look at the bottom of it?

A Yes.

Q Was there in fact a hole in the bottom?

A Couldn't see, once again, because there was chocolate surrounding the hole. It was apparently there.

Sklenar could not say whether the chocolate had been boiling while in the microwave. She remembered no spillage from the bottom of the bowl when she removed it from the microwave, and no stain on the microwave's glass turntable. The microwave itself had been left in Sklenar's house when the home was sold at some point subsequent to the accident. It was never examined or offered for examination.

At oral argument, Sklenar's counsel could not say how big the hole in the container was, stating when asked: "You can't tell because there's chocolate on both sides of it." Although pictures of the container were taken, chocolate obscured the hole.

THE COURT: Can you see the hole through the picture or just the chocolate?

[COUNSEL]: You just see the chocolate on both sides.

THE COURT: So the photos don't show the hole[?]

[COUNSEL]: Right.

Because the chocolate obscuring the hole was never removed, no insurance representative had ever viewed the alleged defect in the container. No expert for any party had removed the chocolate and examined the container prior to its loss.

In support of Rubbermaid's motion to dismiss Sklenar's action, Rubbermaid produced the affidavit of David Zak, the Materials Development Manager for Rubbermaid Foodservice Products, who stated that an inspection of the bowl could determine whether there were any defects in the materials or manufacturing processes utilized in producing the product at issue. Zak claimed that the loss of the bowl with its melted chocolate, as well as the loss of the microwave itself, had adversely affected the defense of Rubbermaid in the litigation. The motion judge agreed, finding that the defendants had been severely prejudiced by the loss of the evidence, and that the photographs did not constitute suitable substitutes for use in scientific examination of the product. The judge further found that no lesser remedy than dismissal was available to cure the prejudice to defendants, and thus the relief of dismissal with prejudice was required.

On appeal, Sklenar raises the following arguments:

POINT I

THE COURT ERRED IN DISMISSING PLAINTIFF/APPELLANT'S CLAIM AGAINST RUBBERMAID INC. BECAUSE RUBBERMAID INC. WAS NOT SUBSTANTIALLY PREJUDICED BY THE LOSS OF THE CONTAINER.

A. DEFENDANT/RESPONDENT IS NOT SUBSTANTIALLY PREJUDICED IN THE DEFENSE OF ITS CASE WHEN BOTH PARTIES ARE EQUALLY PREJUDICED BY THE LOSS OF THE EVIDENCE AND PHOTOGRAPHS SERVE AS AN ADEQUATE SUBSTITUTE FOR THE LOST EVIDENCE.

B. DEFENDANT/RESPONDENT IS ESTOPPED FROM CLAIMING IT IS SUBSTANTIALLY PREJUDICED AND THE DOCTRINE OF LACHES ATTACHES WHEN IT FAILED TO RE-INSPECT THE CONTAINER OVER THE COURSE OF SEVEN YEARS PRIOR TO THE FILING OF LITIGATION.

POINT II

THE COURT ERRED IN APPLYING THE ULTIMATE

SANCTION OF DISMISSAL WHEN OTHER APPROPRIATE

SANCTIONS WERE AVAILABLE TO CURE ANY

PREJUDICE TO THE DEFENDANT RESULTING FROM

THE INADVERTENT DISCARDING OF THE SUBJECT

RUBBERMAID CONTAINER.

A. THE MOTION JUDGE ABUSED HER DISCRETION BY UNIVERSALLY DISMISSING THIS CASE WHEN ONLY THOSE CAUSES OF ACTION CLAIMED BY THE PLAINTIFF/APPELLANT WHICH WOULD HAVE REQUIRED PHYSICAL EXAMINATION OF THE CONTAINER NEEDED TO BE STRICKEN.

B. OTHER EVIDENCE IN THIS CASE CAN SERVE TO ADEQUATELY SUBSTITUTE FOR THE SUBJECT CONTAINER WITHOUT PREJUDICE TO EITHER PARTY AND WITHOUT HAVING TO DISMISS THIS CASE IN ITS ENTIRETY.

POINT III

THE COURT ERRED IN DISMISSING PLAINTIFF/APPELLANT'S CLAIM AGAINST RUBBERMAID INC. BY RELYING UPON REPRESENTATION THAT IT HAD REQUESTED INSPECTION OF THE MICROWAVE OVEN USED IN THIS MATTER WHEN NO REQUEST HAD EVER BEEN MADE AND THE MICROWAVE WAS NO LONGER AVAILABLE.

We affirm.

Asserting that there was a hole in the bottom of Rubbermaid's container through which melted chocolate had leaked, Sklenar filed suit against Rubbermaid under theories of product liability, failure to warn, breach of warranty, misrepresentation, and negligence. The existence of a product defect necessarily underlay each of Sklenar's claims. Yet, even if it is assumed that some sort of hole existed in the bottom of the container, the loss of that container prevented visualization of the hole and a scientific exploration as to its cause. For all that is known, the hole could have been created by Sklenar herself in breaking up the chocolate prior to melting it. The chocolate could have been subjected to unreasonably high temperatures. Or, as Sklenar claims, the container could have been defective. The facts, unilluminated by any effort on Sklenar's part to pin-point the cause of the alleged leakage, thus do not permit the invocation of the doctrine of res ipsa loquitur. Jerista v. Murray, 185 N.J. 175, 192 (2005); Szalontai v. Yazbo's Sports Caf , 183 N.J. 386, 401 (2005).

In a situation such as this in which a multiplicity of potential causes for the accident existed, some attributable to Sklenar and some to defendant Rubbermaid, examination of the container was essential to distinguish whether grounds for liability existed or not. When the container was discarded, that examination was foreclosed. Photographs, which failed to demonstrate the hole or its characteristics and could not be utilized either to establish or negate a manufacturing defect, were a wholly inadequate substitute for the lost item. Manorcare Health Servs., Inc. v. Osmose Wood Preserving, Inc., 336 N.J. Super. 218, 230 (App. Div. 2001). Prejudice to Rubbermaid as a result is apparent. Aetna Life and Cas. Co. v. Imet Mason Contractors, 309 N.J. Super. 358, 368-69 (App. Div. 1998).

As we held in Imet, the "existence of a duty to preserve evidence is a question of law to be determined by the court." Id. at 365 (citing Hirsch v. General Motors Corp., 266 N.J. Super. 222, 249 (Law Div. 1993)). In Hirsh, the court concluded that:

a duty to preserve evidence, independent from a court order to preserve evidence, arises where there is: (1) pending or probable litigation involving the defendants; (2) knowledge by the plaintiff of the existence or likelihood of litigation; (3) foreseeability of harm to the defendants, or in other words, discarding the evidence would be prejudicial to defendants; and (4) evidence relevant to the litigation.

[Id. at 250.]

The factors contained in Hirsh's formulation, which we have accepted, Imet, supra, 309 N.J. Super. at 366, are clearly met in the present case by evidence of a suit in which discovery was ongoing at the time of the loss of the container; the focus of the litigation on that container; and the absence of alternative means to determine what had caused the container to leak. Sklenar's duty to preserve the evidence that was key to her case was thus breached. That the loss was unintentional is immaterial. Manorcare Health Servs., supra, 336 N.J. Super. at 226.

Sklenar claims that Rubbermaid was likewise at fault as the result of its failure to thoroughly inspect the container in the period between notification of the accident in 1998 and the commencement of suit in 2005, and that such fault should have precluded the sanction of dismissal. We disagree. The testimony of Sklenar and her attorney demonstrates that, while calling to Rubbermaid's attention the fact that one of its containers had leaked, causing injury, Sklenar had made no effort to determine the cause of the leakage. Whether there was a good faith basis for an actionable claim or for Sklenar's demand that Rubbermaid provide compensation for Feakins's injuries thus remained unknown throughout the period prior to the institution of suit and, indeed, thereafter. We are aware of no precedent that would require, in circumstances of a hidden alleged defect, that the projected defendant, rather than the plaintiff, assume the burden of demonstrating one way or another whether suit were justified. The duty remained with Sklenar to prove her claim. In this case, Sklenar did not do so, gambling that a settlement could be reached prior to retention of an expert, thereby achieving a cost savings. Although that course may have been financially justified, we find no ground for penalizing Rubbermaid for its failure to reach a settlement or conduct pre-suit discovery when confronted with Sklenar's proofs.

Additionally, we note that any complete pre-suit inspection by Rubbermaid would have required the removal and analysis of at least some of the chocolate surrounding the alleged hole, as well as likely destructive testing of portions of the container itself. If such had been proposed, Sklenar, undoubtedly, would have been required to retain her own expert to monitor the forensic activities of Rubbermaid's experts and to independently verify or refute their findings. Sklenar has proffered nothing that would suggest a willingness to undertake that effort and expense prior to the time that the container was lost. In fact, it appears that when the loss took place, Sklenar still had not retained an expert to determine whether a defect in the container existed.

Sklenar has also argued that a less severe sanction than dismissal should have been imposed by the trial judge, claiming in this regard that an adverse spoliation inference charge would appropriately level the playing field. See Rosenblit v. Zimmerman, 166 N.J. 391, 401-02 (2001). In a sense, Sklenar is correct, since neither Sklenar nor Rubbermaid would have the benefit at trial of expert testimony as to the cause of the leakage that injured Feakins, and some advantage might accrue to Rubbermaid from the charge. However, we regard that tactical advantage as insufficient when the absence of expert evidence would otherwise render impossible any defense on Rubbermaid's part. A sufficient justification for the "ultimate sanction" that was imposed thus exists. Imet, supra, 309 N.J. Super. 368-69. Of even greater significance, however, the absence of any evidence of defect, expert or otherwise, renders it impossible for Sklenar to go forward with her case. Because she bears the burden of proof of product defect, dismissal was warranted. Myrlak v. Port Auth. of N.Y. and N.J., 157 N.J. 84, 96-99 (1999); N.J.S.A. 2A:58C-7 (Products Liability Act does not alter burdens of proof).

We decline to address Sklenar's remaining arguments, finding them to be of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

Improperly designated in the complaint as "Shop-Rite of Netcong, Wakefern Food Corp."

A stipulation of dismissal was entered by Sklenar as to RoNetco Supermarkets, Inc. t/a Shop-Rite of Netcong #201 on August 22, 2006.

(continued)

(continued)

13

A-5209-05T3

July 19, 2007