Scott v Henny Penny Corp.
Annotate this CaseDecided on August 12, 2015
Supreme Court, Onondaga County
Gerald Scott, Plaintiff
against
Henny Penny Corporation; Guertin Distributors, Inc.; John Does 1-1- and ABC Cos. 1-10, said designation fictitious and meant to represent culpable parties as yet unknown, Defendants.
2013-3358
Joel M. Bacher, Esq.
Attorney for Plaintiff
Richard L. Weber, Esq.
Bond, Schoeneck & King
Attorneys for Defendant Henny Penny
Brian D. Wright, Esq.
Faruki Ireland & Cox, PLL.
Attorneys for Defendant Henny Penny
Sean A. Tomko, Esq.
Law Office of Santacrose & Frary
Attorneys for Defendant Guertin Dist.
Anthony J. Paris, J.
On July 6, 2010, while employed by a Third Party Defendant, Plaintiff sustained physical injuries while using the fryer manufactured and/or distributed by the Defendants. As a result, Plaintiff commenced this action by the filing of the Summons and Complaint on or abut June 24, 2013. Thereafter, Defendants interposed Answers and/or Crossclaims.
Subsequent to pretrial discovery proceedings, Defendant Henny Penny has moved pursuant to CPLR §3124 and CPLR §3126 for an Order compelling Plaintiff to produce certain component parts of the fryer that allegedly caused Plaintiff's injuries or an Order dismissing Plaintiff's Complaint or precluding certain evidence supporting Plaintiff's claim due to Plaintiff's spoliation of evidence.
Plaintiff opposes this motion.
It appears that on August 30, 2010, shortly after this incident, Plaintiff's attorney and PE Steven Thomson conducted an unnoticed and undisclosed inspection and testing of the subject fryer at the Third Party Defendant's place of business. No representatives of Defendants were present as they were not on notice of this inspection. During the course of this inspection certain component parts of the fryer were damaged, and according to Plaintiff's counsel, the demonstration could not be completed as the machine broke while attempting to recreate the procedure undertaken by Plaintiff when he was injured. Apparently the fryer was in working order up to the date of this unnoticed inspection.
It appears that certain component parts of the fryer, specifically the pressure gauge and computer board, were damaged. It further appears that Plaintiff's counsel repaired the fryer but the broken component parts were not kept and are missing despite his search for them.
Notwithstanding the fact that the re-enactment was not finished and the component parts were damaged, neither of which events were mentioned in PE Thomson's report, Plaintiff's expert nonetheless opined that the fryer was defective and caused Plaintiff's injuries.
Defendant Henny Penny contends that despite repeated requests to Plaintiff's counsel for the production of the damaged parts, they have not been produced. Furthermore, this Defendant argues that its defense is fatally impaired without said parts and the ability to test the fryer by its own experts due to the spoliation of these key elements by Plaintiff.
Plaintiff contends that there was no prejudice to the Defendant as the product had a design defect which caused Plaintiff's injuries and that defect does not necessitate the production of the missing parts.
And, it appears that the fryer was sold by a Third Party Defendant before Plaintiff commenced this action just prior to the expiration of the statute of limitations.
A Court must weigh a number of factors in determining whether or not to impose a spoliation sanction. Such factors include: 1) who allegedly spoliated the evidence; 2) was the disposal intentional or negligent; 3) the timeline as to when in the course of the action it occurred; 4) if the spoliator was on notice that the evidence would be needed for future legal proceedings; 5) whether or not the disposed materials were key evidence; 6) whether or not there was substantial prejudice to the moving party or an impairment of that party to present or defend its case; and & ) whether the spoliation warrants a sanction and what that sanction might be. Met Life Auto and Home v. Joe Basil Chevrolet, 1 NY3d 478 (2004); Ianucci v. Rose, 8 AD3d 437 (2d Dept. 2004).
Spoliation sanctions may be appropriate even if the destruction of evidence occurred through negligence rather than willfulness provided that the party was on notice that the evidence might be needed for future litigation. Wetzler v. Sisters of Charity Hospital, 17 AD3d 1088 (4th Dept. 2005); Netti v. Auburn Enlarged City School District, 309 AD2d 1143 (4th Dept. 2003).
However, preclusion from negligent spoliation is a drastic sanction and is appropriate only where the missing evidence deprives the moving party of the ability to establish its defense. Enstrom v. Garden Place Hotel, 27 AD3d 1084 (4th Dept. 2006).
When a party damages, loses or intentionally destroys key evidence, thereby depriving the non responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleadings.
The party requesting the sanctions for spoliation has the burden of demonstrating that a litigant intentionally or negligently disposed of crucial evidence and fatally compromised its ability to defend the action. Where a plaintiff negligently or intentionally destroys or loses evidence prior to the commencement of an action, spoliation sanctions are appropriate. Utica Mutual v. Berkoski Oil Co., 50 AD3d 717 (2d Dept. 2008); Conderman v. Rochester Gas & Electric (4th Dept. 1999); Mudge, Rose, Guthrie v. Penguin Air Conditioning Corp., 221 AD2d 243 (1st Dept. 1995).
Based on the record before the Court, while it does not appear that Plaintiff intentionally destroyed, lost or disposed of these component parts, it is quite obvious that said parts are no longer available due to Plaintiff's negligence. Moreover, it is most troubling to the Court that Plaintiff shortly after the incident secured the services of an attorney and an expert to inspect the fryer and reenact the incident — all without notice to the known potential parties to this action.
In addition, it does not appear that Plaintiff, through counsel, made any good faith attempt to locate or preserve these component parts which were damaged during the unnoticed inspection and well before Plaintiff commenced this action.
Finally, Plaintiff's argument that the original pressure gauge and computer board on this ten year old fryer are not material pieces of evidence as the premise of Plaintiff's theory of liability is a design defect predicated on lack of product warning and that photos are available to defendants, is unconvincing.
The availability of Plaintiff's photos and Plaintiff's expert witness report cannot adequately substitute for Defendant's own expert's inspection of the fryer. Simmons v. Pierce, 39 AD3d 1252 (4th Dept. 2007); Thornhill v. A. B. Volvo, 304 AD2d 651 (2d Dept. 2003).
Based on the foregoing, it appears that a spoliation sanction is appropriate due to Plaintiff's prejudicial impediment of Defendant's ability to inspect and test the alleged defective fryer. Therefore, Defendant Henny Penny's motion is granted. The appropriate sanction in the opinion of the Court based on the particular circumstances of this case is the preclusion of any expert testimony regarding the defective nature of the subject fryer.
Dated: August 12, 2015
ANTHONY J. PARIS
JUSTICE OF SUPREME COURT
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