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affirming trial court's order for summary judgment on fraudulent concealment claim where there was no showing that defendants intentionally demolished evidence in order to thwart potential litigation
Summary of this case from Mendez v. ShahOpinion
DOCKET NO. A-1077-13T2
03-17-2015
DANIELLE ELLISON, a/k/a DANIELLE SKINNER, Plaintiff-Appellant, v. WINTERINGHAM ASSOCIATES, L.P., WINTERINGHAM VILLAGE, INTERSTATE REALTY MANAGEMENT COMPANY, THE MICHAELS ORGANIZATION, and GENERAL ELECTRIC COMPANY, Defendants-Respondents.
Michael S. Kasanoff, attorney for appellant (Mr. Kasanoff and George H. Kachmar, of counsel and on the brief). Weber, Gallagher, Simpson, Stapleton, Fires & Newby, L.L.P., attorneys for respondents (Marc B. Zingarini and Anthony C. Nwaneri, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Hayden. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3189-11. Michael S. Kasanoff, attorney for appellant (Mr. Kasanoff and George H. Kachmar, of counsel and on the brief). Weber, Gallagher, Simpson, Stapleton, Fires & Newby, L.L.P., attorneys for respondents (Marc B. Zingarini and Anthony C. Nwaneri, on the brief). PER CURIAM
Plaintiff Danielle Ellison, also known as Danielle Skinner, suffered serious burns when a pot of hot oil in which she was cooking french fries caught fire. Plaintiff filed suit against Winteringham Associates, the owner of the apartment complex known as Winteringham Village, Interstate Realty Management Company, the manager of the complex, and The Michaels Organization, alleged to be "the parent company/affiliate" of both (collectively, defendants). Plaintiff alleged defendants were negligent in the maintenance of the premises and "in providing the information and instruction regarding the use of the apartment and its utilities and appliances." Plaintiff's complaint also included a count alleging defendants were liable for the intentional spoliation of evidence.
The complaint also included a count sounding in product liability against the General Electric Company (GE), the manufacturer of the stove plaintiff was using. GE moved for and was granted summary judgment without opposition from plaintiff in September 2012. That order is not a subject of this appeal.
On October 4, 2013, defendants moved for summary judgment. After considering the briefs and oral argument, the judge entered an order granting defendants' summary judgment motion and dismissing plaintiff's complaint.
Plaintiff appeals, arguing that she presented sufficient evidence of "a viable negligence claim against defendants." She also contends that the judge erred in dismissing her claim for spoliation of evidence. We have considered these arguments in light of the record and applicable legal standards. We affirm.
Plaintiff's brief actually argues she was entitled to "'an adverse inference'" because of defendants' actions, but we address the issue in the context of the propriety of summary judgment regarding the second count of her complaint that alleged liability under the spoliation cause of action.
I.
The standards governing our review are well known. "An appellate court reviews an order granting summary judgment in accordance with the same standard as the motion judge." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014) (citing W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012); Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010)). We "must review the competent evidential materials submitted by the parties to identify whether there are genuine issues of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law." Ibid. (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c)).
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge 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.
[Brill, supra, 142 N.J. at 540.]
We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 231 (App. Div.), certif. denied, 189 N.J. 104 (2006). We owe no deference to the motion judge's conclusions in this regard and review issues of law de novo. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995)). "The practical effect . . . is that neither the motion court nor an appellate court can ignore the elements of the cause of action or the evidential standard governing the cause of action." Bhagat, supra, 217 N.J. at 38.
A.
Plaintiff had been residing in the apartment with her mother for at least five years prior to the fire. On February 13, 2010, she was using the electric stovetop to deep fry french fries in cooking oil, something she acknowledged in her deposition testimony that she often had done before. Although there is a factual dispute as to whether plaintiff was attending to the oil or not, we accord the non-moving party the benefit of all favorable evidence and inferences and assume that she was.
Plaintiff's step-brother, who also resided in the apartment, told police investigators that he was awoken by the sound of smoke detectors activating and evacuated through a sliding screen door at the back of the apartment. He told police that plaintiff was asleep on the couch, his attempts to awaken her were unsuccessful, and he believed she might have been intoxicated. However, at his deposition, the witness denied ever telling police that plaintiff was asleep on the couch.
Plaintiff also testified that she could not remember any details of the incident. However, she made two relatively contemporaneous statements regarding the cause and origin of the fire. EMS workers who responded to the scene detailed that plaintiff said the fire originated on the stove, and, when she tried to extinguish it with water, it grew, burning her and spreading throughout the kitchen. Plaintiff related a similar version of the facts to Toms River Police Detective James Magovern, who spoke to her on February 19, 2010.
Plaintiff acknowledged that she understood the basic operations of the stove and oven. Her mother claimed the stove was newly installed in 2005, and that she did not receive any instruction manual with the appliance.
Theresa D'Amato, defendants' site manager at the time of the fire, testified that in fourteen years as manager of the 183 unit complex, she was aware of six kitchen fires that involved cooktops or ovens. D'Amato explained,
[T]he electric stoves, unless you're practicing good housekeeping, can get greasy and the electric stoves, unlike gas, when you turn them off, they stay hot. So somebody leaves something on the stove.
They are not . . . aware of that and something happens.D'Amato acknowledged that cooking with oil was commonplace, and defendants offered no "classes or courses" for tenants regarding cooking hazards.
D'Amato also testified that defendants installed two smoke detectors in the ground floor of each apartment and five on the second floor. Additionally, above each stovetop, defendants installed two fire suppression canisters, which D'Amato testified released "some sort of a bicarbonate or powder that . . . would assist in mitigating a small fire that's on the stove." Although these canisters came with manufacturer warnings indicating they would not deal efficiently with a grease fire, D'Amato admitted that this information was not given to tenants, and, instead, tenants were told to immediately call 9-1-1 in the event of a fire.
An exhibit was marked during D'Amato's deposition, and she was questioned as to whether this was a copy of the manufacturer's warnings. D'Amato was unsure it was the same information. In any event, the exhibit is not part of the record.
Defendants' maintenance supervisor testified that apartments were inspected every three months, and the fire suppressors and smoke alarms would be checked and replaced as necessary. Additionally, as part of routine maintenance, the fire suppressors were replaced every five years.
The Toms River Bureau of Fire Prevention and Police Department conducted investigations and issued reports. The fire inspector ruled out common "source[s] of ignition" for household fires, like the water heater, electric meter, baseboard heaters and electrical panel. Both reports took note of a pot on the stovetop that contained french fries and was significantly charred. The stove itself was severely damaged, with its controls and electrical components burned away. Both departments concluded that the cause of the fire was "accidental."
Defense expert Daniel T. Gottuk, Ph.D, P.E., inspected the apartment nine days after the fire, and he conducted a second site inspection on March 22, 2010, during which undisclosed "evidence was secured." In the interim, on March 15, 2010, defendants sent plaintiff's mother a letter, explaining that the apartment "ha[d] been rendered unsafe and uninhabitable," and that demolition would commence. Defendants invited plaintiff's mother to remove any personal items, particularly from the second floor of the apartment, which was relatively unscathed by the fire. Someone from plaintiff's family went to the apartment on March 18 to gather some personal belongings. It is unclear from the record who ordered demolition of the apartment, although D'Amato believed it may have occurred at the direction of the town or defendants' insurance company.
On June 7, 2010, plaintiff's attorney faxed a letter of representation to D'Amato, informing her that on June 8 plaintiff would be sending an expert to photograph the fire scene. Counsel further noted that plaintiff "fully underst[ood] the safety obligations involved [with an unsafe apartment] . . . [and] the duty to comply with those obligations, but the duty regarding spoliation[] should likewise be met to the fullest extent possible."
Plaintiff's expert, Gerard J. Naylis, of A.C. James Associates, LLC, noted in his report that when he accessed the scene on June 8, he was unable to "perform[] any evaluation or analysis of any burn patterns or assessment of the fire growth and development" because the drywall and apartment contents had been removed. Naylis recommended that all remaining electrical wiring and components be secured, and they were removed and made available to him during a subsequent site visit on June 17. In his final report, Naylis opined:
[Plaintiff] had for years used a stove to heat oil to cook food. Thus, [plaintiff] relied on her past life experiences when cooking. . . . Common knowledge, lacking any instruction or training to the contrary, is to put water on a fire to extinguish a
fire. In this case the physical evidence supports that [plaintiff] likely attempted to extinguish the fire using water. She had not received any instructions about the dangers of putting water on an oil fire. Had the landlord provided such instruction and the precautions to take while using the new stove, [plaintiff] would have taken more appropriate actions to extinguish the fire.Naylis also concluded:
The installation of the . . . fire suppressors without providing the warnings provided with the installation instructions created an additional false sense of security by misleading the apartment's occupants into believing that should a fire occur on the stove top, these fire suppressors would knock down and control a stove top fire. These devices were never intended to be used to provide fire protection from a fire involving deep fat frying.
B.
After considering the motion evidence and oral arguments of counsel, the judge noted that while "a landlord has a duty to exercise . . . ordinary care to render the premises reasonably safe for the intended use," defendants had "no duty to have that 'extinguisher'," referring to fire suppression canisters, and "no duty to anticipate a grease fire." The judge reasoned that defendant did not conceal the existence of a hazardous condition because there was no inherent danger in using the stovetop. The judge further concluded that as landlords, defendants had no duty to teach plaintiff about the hazards of a grease fire or to instruct plaintiff regarding the limitations of the fire suppression system. As to plaintiff's spoliation claim, the judge found that plaintiff did not timely request preservation of the scene, nor were defendants required to maintain the premises in anticipation of litigation because the proximate cause of the fire was clear and undisputed.
He entered the order under review, and this appeal followed.
II.
In a recent landlord-tenant premises liability opinion, we said that "[a] common law cause of action for negligence has four elements: (1) a duty of care owed to plaintiff by defendant, (2) a breach of that duty by defendant, (3) proximate cause, and (4) actual damages." Meier v. D'Ambose, 419 N.J. Super. 439, 444 (App. Div.) (citing Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 400 (2009)), certif. denied, 208 N.J. 370 (2011). The burden of proof as to each element lies with plaintiff. Ibid.
Traditionally, "premises liability [was] 'predicated on the status of the person on the property at the time of the injury': invitee, licensee, or trespasser." Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 43 (2012) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993)). Over time, however, these rigid definitions of duty, wholly-reliant upon the injured person's status, have evolved, and our courts now define a landowner's duty in a manner consistent with principles of public policy first articulated in Hopkins. Whether the owner of property has a duty in particular circumstances, and the nature of that duty, is determined by "the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." Hopkins, supra, 132 N.J. at 439.
In this case, plaintiff does not assert that defendants violated some statutory or regulatory duty regarding smoke detectors or fire suppression systems. We recognize, however, that she need not make such a claim in order to succeed. See, e.g., Scully v. Fitzgerald, 179 N.J. 114, 121 (2002) (holding that a landlord may still be liable for breach of duty even without having violated a statute or regulation).
Rather, plaintiff contends that defendants owed her a duty to warn of the dangers of grease fires on electric stoves, and in particular, the likelihood that such a fire would be exacerbated by any attempt to extinguish it with water. Plaintiff also argues that defendants' obligation was heightened because they failed to provide instructions on the proper use of the stove when it was installed, and, since they failed to provide the warnings associated with the fire suppression canisters installed above the stovetop, defendants lulled plaintiff into a "false sense of security."
It is axiomatic that "whether a defendant owes a legal duty to another and the scope of that duty are generally questions of law for the court to decide." Robinson v. Vivirito, 217 N.J. 199, 208 (2014). "The determination of the existence of a duty of care to avoid harm to another is ultimately governed by fairness and public policy." Ibid. "Regardless of how the duty is defined, its 'scope . . . is determined under the totality of the circumstances, and must be reasonable under those circumstances.'" Potomac Aviation, LLC v. Port Auth. of N.Y. and N.J., 413 N.J. Super. 212, 226-227 (App. Div. 2010) (alteration in original) (quoting J.S. v. R.T.H., 155 N.J. 330, 339 (1998)).
At common law, a landlord was not liable to his lessee for physical injuries caused by a dangerous condition after the lessee took possession, but "[o]ver time, the general rule was modified to make a landlord liable in certain circumstances," consistent with the precepts of the Restatement (Second) of Torts (1965) [hereinafter Second Restatement]. Szeles v. Vena, 321 N.J. Super. 601, 605 (App. Div.), certif. denied, 162 N.J. 129 (1999); see also Parks v. Rogers, 176 N.J. 491, 498-99 (2003) (applying principles of the Second Restatement to resolve duty owed by landlord to a social guest who fell down a dark stairwell with a shortened handrail).
In Meier, supra, 419 N.J. Super. at 447, we recognized the controlling principles contained in section 358 of the Second Restatement, supra, which provides in relevant part:
Undisclosed Dangerous Conditions Known to LessorThe Commentary to this section of the Second Restatement provides further guidance:
(1) A lessor of land who conceals or fails to disclose to his lessee any condition, whether natural or artificial, which involves unreasonable risk of physical harm to persons on the land, is subject to liability to the lessee and others . . . for physical harm caused by the condition after the lessee has taken possession, if
(a) the lessee does not know or have reason to know of the condition or the risk involved, and
(b) the lessor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to expect that the lessee will not discover the condition or realize the risk.
[Meir, supra, 419 N.J. Super. at 447 (emphasis added) (quoting Second Restatement § 358).]
The lessor must also have reason to believe that the lessee will not discover the condition, or that he will not realize the risk. The lessor is under no duty to warn
the lessee of a condition which he reasonably believes that the lessee will discover, or of the extent of the risk involved in an obvious condition, unless he should realize that the lessee is unlikely to appreciate it.
[Ibid. cmt. b.]
In this case, defendants owed no duty to warn plaintiff of the dangers of deep frying french fries on a stovetop. The risk is readily apparent, and defendants had no reason to believe plaintiff failed to appreciate it. In fact, plaintiff's own testimony was that she frequently used the stovetop in this manner. Plaintiff herself was in the best position to appreciate "the nature of the attendant risk," and she possessed the greatest "opportunity and ability to exercise care" to avoid the risk, two reasons that militate against imposing any such duty on defendants. Hopkins, supra, 132 N.J. at 439. For the very same reasons, we see no justification for imposing a duty upon a landlord to provide instructions about the added risks of pouring water on a grease fire. Defendants did not create the dangerous condition; plaintiff did. Sound policy does not support imposing a duty on landlords to warn their tenants of risks associated with routine activities of daily living, or how best to deal with adversities of the tenant's own making.
Turning to plaintiff's second theory of liability, it is undisputed that defendants were not required by any statute, regulation or code to install fire suppression canisters above the stove top. In Dowler v. Boczkowski, 148 N.J. 512 (1997), the plaintiffs, tenants in the defendants' one-family home, brought suit alleging their landlords had failed to provide a fire protection system that adequately warned of a fire that seriously injured one of the plaintiffs. Id. at 514-15. We reversed the trial court's grant of summary judgment, reasoning that the defendants' re-installation of the detector at a location too distant from the origin of the fire as to cause its activation was a negligent repair, subjecting the defendants to potential liability. Id. at 515.
The Court reversed. Id. at 524. It noted that the installation of the smoke detector was not a repair, it occurred prior to the tenants' occupancy and "there was no representation or assurance by the landlord that the premises contained an early-alert smoke detector and fire alarm system." Id. at 520. Additionally, the Court held that "[b]ecause no law required a smoke detector in plaintiffs' home, the placement of a smoke detector away from the bedroom area was not negligent as a matter of law." Id. at 524.
In this case, although it is not entirely clear from the record when the canisters were first installed, we assume it occurred after plaintiff's tenancy commenced. Nevertheless, defendants were not obligated to install the fire suppression system at all, and there is no evidence in the record that defendants ever represented that the canisters were sufficient to extinguish all types of fires, or even that they were sufficient to fully extinguish any type of fire.
Plaintiff's reliance upon Taneian v. Meghrigian, 15 N.J. 267 (1954), is entirely misplaced. In Taneian, the plaintiff was visiting one of the defendants, who owned and lived in the building. Id. at 269. She told the defendant that a light in the common stairwell between floors was not working, and he advised her that "he would have it attended to and . . . take care of it." Id. at 270 (internal quotation marks omitted). The plaintiff stayed for several hours and saw the defendant frequently leaving his apartment, thereby assuming he was fixing the light. Id. at 270-71, 282. When the plaintiff ultimately left, she fell in the darkened stairwell. Id. at 269. In analyzing the effect of any contributory negligence on plaintiff's part, the Court reasoned that "[t]he jury could have found from the proofs that [the] plaintiff had relied on assurances given by [the defendant] that he would correct the light failure." Id. at 282.
From this, plaintiff contends that, like the plaintiff in Taneian, she reasonably relied upon the installed fire suppression canisters, which resulted in a false sense of security regarding their ability to extinguish the fire. However, Taneian dealt with the landlord's duty to maintain the safety of common areas exclusively controlled by the landlord. The facts there also presented an undisputedly unsafe condition, i.e., a darkened stairwell that tenants and invitees necessarily had to utilize. Lastly, the landlord affirmatively misrepresented his intention to attend to the dangerous condition. In short, the case has no application to the facts presented here.
For the reasons expressed, we affirm the grant of summary judgment to defendants on plaintiff's negligence claim.
III.
We briefly address plaintiff's further contention that 1) she should be accorded the benefit of an adverse inference to be drawn against defendants because they destroyed potential evidence, or 2) she adduced sufficient proof to withstand summary judgment on the spoliation count of her complaint.
"Spoliation typically refers to the destruction or concealment of evidence by one party to impede the ability of another party to litigate a case." Jerista v. Murray, 185 N.J. 175, 201 (2005) (citing Rosenblit v. Zimmerman, 166 N.J. 391, 400-01 (2001)). Our courts
have expanded the remedies available to courts dealing with spoliating defendants by permitting the use of discovery sanctions and adverse inferences, and have allowed the courts to employ a bifurcated trial technique to address spoliation. We have also authorized courts to use more than one such remedy if circumstances warrant it.In this case, plaintiff's complaint alleged that defendants acted "fraudulently and intentionally" in failing to preserve the fire scene until she could do a complete inspection by an expert. We therefore confine our discussion to the elements of such a claim.
[Robertet Flavors, Inc. v. Tri-Form Constr., Inc., 203 N.J. 252, 272 (2010) (citations omitted).]
We have held that claims asserting the negligent destruction of evidence are analyzed under traditional negligence standards. Gilleski v. Comty. Med. Ctr., 336 N.J. Super. 646, 652 (App. Div. 2001)
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In this regard, a plaintiff must prove:
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 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.Whether a duty exists to preserve the evidence in the first instance is a question of law to be resolved by the court. Davis v. Barkaszi, 424 N.J. Super. 129, 148 (App. Div. 2012) (citing Cockerline v. Menendez, 411 N.J. Super. 596, 620 (App. Div.), certif. denied, 201 N.J. 499 (2010)). The duty "arises when there is pending or likely litigation between two parties, knowledge of this fact by the alleged spoliating party, evidence relevant to the litigation, and the foreseeability that the opposing party would be prejudiced by the destruction or disposal of this evidence." Cockerline, supra, 411 N.J. Super. at 620.
[Rosenblitt, supra, 166 N.J. at 406-07.]
In this case, plaintiff did not notify defendants of a desire to inspect the apartment until June 7, 2010, nearly three months after the fire. Nonetheless, she argues that defendants should have assumed there would be litigation, given the extent of the fire and her injuries, and preserved the scene. However, the contemporary investigations conducted by police and fire personnel concluded that the cause of the fire was accidental, and its origin was the pot of oil on the stove. We fail to see why, under those circumstances, defendants should have assumed litigation was likely. Moreover, there was no showing that defendants intentionally demolished the apartment and removed the appliances in order to thwart potential litigation.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION