MARTHA VALDEZ VS. BROOKLYN'S COAL BURNING BRICK OVEN PIZZERIA, LLC (L-5142-18, BERGEN COUNTY AND STATEWIDE) ( 2021 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
    internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-3294-19
    MARTHA VALDEZ and
    JOSE VALDEZ, her spouse,
    Plaintiffs-Appellants,
    v.
    BROOKLYN'S COAL BURNING
    BRICK OVEN PIZZERIA, LLC,
    JOHN GRIMALDI, and JULIE
    GRIMALDI REALTY GROUP,
    LLC,
    Defendants-Respondents.
    _____________________________
    Argued July 13, 2021 – Decided August 3, 2021
    Before Judges Hoffman and Currier.
    On appeal from the Superior Court of New Jersey, Law
    Division, Bergen County, Docket No. L-5142-18.
    Grace Elizabeth Robol argued the cause for appellants
    (Davis, Saperstein & Salomon, PC, attorneys; Lisa A.
    Lehrer, of counsel and on the briefs).
    Paul J. Endler, Jr., argued the cause for respondents
    (Methfessel & Werbel, attorneys; Paul J. Endler, Jr.,
    and David Incle, Jr., on the brief).
    PER CURIAM
    Plaintiffs Martha and Jose Valdez 1 appeal from the Law Division order
    granting the summary judgment dismissal of their personal injury action against
    Brooklyn's Coal Burning Oven Pizzeria, LLC, John Grimaldi, and Julie
    Grimaldi Realty Group, LLC, based upon alleged spoliation of evidence. For
    the following reasons, we reverse and remand for further proceedings.
    I.
    We derive the following facts from the motion record. On May 27, 2017,
    plaintiff and her husband ordered a pizza and mozzarella sticks from defendants'
    pizzeria in Hackensack. When they arrived at the pizzeria, plaintiff's husband
    went inside and picked up the food. Upon returning to the car, he placed the
    pizza on the floor in front of plaintiff; in addition, he handed a bag containing
    the mozzarella sticks and marinara sauce to plaintiff, who held the bag on her
    lap. The mozzarella sticks were in a foil pan with a cardboard top, while the
    1
    In this opinion, we refer to Martha and Jose Valdez collectively as "plaintiffs,"
    and Martha Valdez individually as "plaintiff." Plaintiff’s husband sues per
    quod.
    A-3294-19
    2
    marinara sauce was in a separate cardboard cup with a lid. Plaintiff testified she
    knew from previous trips to the pizzeria the container that held the marinara
    sauce was hot enough that she had to put the container down when holding it.
    After leaving the pizzeria, plaintiff and her husband drove fifteen minutes
    to the home of a relative to drop off water bottles for a party. During this drive,
    plaintiff did not notice any heat or wetness emanating from the bag. Upon
    arrival, plaintiff’s husband exited the vehicle to carry the water into the house,
    while plaintiff remained in the car. At that point, plaintiff "felt the burn" and
    looked down to see marinara sauce on her jeans. Feeling the sauce burning her
    thigh, plaintiff recounted, "I screamed" and "went to get out of the car, not
    realizing I still had my seat belt on." She encountered difficulty in unbuckling
    her seat belt as she "was just going crazy." At that point, plaintiff threw the
    whole bag with the mozzarella sticks and the sauce "out the window." She then
    opened the car door and told her husband, "Let's go. Let's go." Plaintiffs then
    went home, without recovering the bag.
    After they arrived home, plaintiff removed her jeans, took a photo of her
    burn, and sent it to her sister, who told her to go to the hospital "because that
    looks very bad and could get infected." Before going to the hospital, plaintiff
    called the pizzeria and reported she had been burned by the hot marina sauce .
    A-3294-19
    3
    She further recounted stating, "You guys have to be careful because somebody
    else could get hurt." Plaintiff then went to the emergency room, where she
    received treatment for the burn. According to plaintiff's medical expert, plaintiff
    sustained "a deep second-degree burn with a small element of third-degree
    burn[,]" with a resulting "hyper[-]pigmented permanent scar . . . ."
    Approximately six months after plaintiff sustained her injury, an
    investigator for plaintiffs made a purchase of mozzarella sticks and marinara
    from defendants' pizzeria. Testing of the sample cup of marinara sauce revealed
    a temperature of 178.8 degrees Fahrenheit. According to plaintiffs' medical
    expert, "a hot liquid at 162 degrees Fahrenheit contacting human adult skin
    causes second or third-degree burns."
    On July 13, 2018, plaintiffs filed a complaint against defendants, alleging
    plaintiff sustained "severe personal injuries" due to defendants' "careless,
    reckless, and/or negligent manufacturing, marketing, assembling, inspection,
    packaging, and/or sale of the marinara sauce."
    In January 2020, defendants filed the motion under review, solely based
    upon spoliation of evidence. Defendants asserted that plaintiff "spoliated and
    destroyed not only the most critical, but the only piece of evidence . . . essential
    to proceeding with her claim." Defendants further contended that summary
    A-3294-19
    4
    judgment was the only appropriate remedy, "as there's no lesser sanction that's
    available to remedy the prejudice" they suffered. Plaintiff opposed the motion.
    The motion court determined that plaintiff's act of "[d]iscarding the
    marina sauce container prejudices [defendants] in their ability to defend this
    action. Defendant[s] cannot determine if the containers were mishandled by
    [plaintiff] or assess comparative fault on behalf of [plaintiff]." The court further
    noted that
    [p]laintiff has also not produced the jeans that she was
    wearing on the day of the spill. Nor has she produced
    photographs of the same. Without either the container
    of sauce or the jeans, there is no way of determining if
    the sauce was mispackaged, or if [p]laintiff's own
    negligence contributed to the injury.           Discovery
    sanctions will not contribute to [p]laintiff being able to
    prove her claim nor provide an avenue for [defendants]
    to defend [themselves].
    Finding no genuine issue of material fact, the court granted summary judgment
    to defendants.
    On appeal, plaintiffs argue the trial court mistakenly viewed their claim
    that the sauce was too hot as a negligent packaging claim. Plaintiffs further
    argue that even under the trial court's misinterpretation of their claim, summary
    judgment was not a proper remedy for the alleged spoliation of evidence.
    A-3294-19
    5
    II.
    A spoliation claim arises when a party in a civil action has hidden,
    destroyed, or lost relevant evidence and thereby impaired another party's ability
    to prosecute or defend the action. Rosenblit v. Zimmerman, 
    166 N.J. 391
    , 400-
    01 (2001); Manorcare Health Servs., Inc. v. Osmose Wood Pres., Inc., 
    336 N.J. Super. 218
    , 226 (App. Div. 2001). When litigation is likely, a prospective party
    aware of that probability has an obligation to preserve evidence foreseeably
    important to its adversary. Aetna Life and Cas. Co. v. Imet Mason Contractors,
    
    309 N.J. Super. 358
    , 365-67 (App. Div. 1998).
    Parties are not obligated to preserve every item and document once a
    complaint is filed; however, they are required to do "what is reasonable under
    the circumstances." Hirsch v. Gen. Motors Corp., 
    266 N.J. Super. 222
    , 250 (Law
    Div. 1993) (quoting County of Solano v. Delancy, 
    264 Cal. Rptr. 721
    , 731
    (1989)). That duty to preserve evidence arises when 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, [a likelihood that] discarding the evidence would
    be prejudicial to defendants; and (4) evidence relevant to the litigation." 
    Ibid.
    The existence of a duty is a question of law. Aetna Life, 309 N.J. Super. at 365.
    A-3294-19
    6
    Trial courts have broad authority to sanction abusive discovery tactics and
    a reviewing court will not disturb the sanctions if "they are just and reasonable
    under the circumstances." Id. at 365. With respect to sanctions for spoliation,
    the goal is to make the prejudiced party whole, as much as possible, by
    "rectifying the prejudice caused by the spoliation so as to place[ ] the parties in
    equipoise." Robertet Flavors v. Tri-Form Const., 
    203 N.J. 252
    , 273 (2010)
    (quoting Hirsch, 266 N.J. at 266). Remedies for spoliation of evidence include
    use of discovery sanctions, an adverse inference, or a separate cause of action
    for fraudulent concealment. Id. at 272. Dismissal of a claim "will normally be
    ordered only when no lesser sanction will suffice to erase the prejudice suffered
    by the non-delinquent party." Id. at 274 (quoting Zaccardi v. Becker, 
    88 N.J. 245
    , 253 (1982)).
    III.
    We agree with the motion court that plaintiff had a legal duty to preserve
    the marinara sauce container and other packaging. As the court pointed out, it
    is foreseeable that a customer would bring suit after sustaining a burn from a
    prepared food, especially if the burn requires treatment at a hospital. The
    obligation to preserve evidence arises when litigation is probable, not when a
    plaintiff decides to bring suit. Hirsch, 266 N.J. at 250. Failure to retrieve the
    A-3294-19
    7
    container likely impacts both plaintiffs' ability to prove their claim and
    defendants' ability to prove that they were not negligent with regard to the
    packaging of the marinara sauce. While plaintiffs' complaint did include a
    negligent "packaging" claim, it also included a claim for the "negligent . . . sale
    of the marinara sauce." Plaintiffs' brief includes a concise statement of their
    negligent sale theory of liability, "Martha Valdez was burned because marinara
    sauce that she ordered from the Pizzeria was too hot."
    While we agree with the motion court that spoliation occurred, we
    disagree with the determination that dismissal of plaintiff's claim was the only
    appropriate sanction. The motion court incorrectly concluded that less severe
    sanctions, including the suppression of evidence related to the marinara sauce
    container, could not effectively address the spoliation in this case. In Robertet,
    our Supreme Court stressed the need for a "careful evaluation of the particular
    facts and circumstances of the litigation, in order that the true impact of the
    spoliated items can be assessed and an appropriate sanction imposed." 
    203 N.J. at 273-274
    . The motion court's failure to consider lesser sanctions is contrary
    to this fact-sensitive approach. Instead of evaluating the available remedies, the
    court mistakenly presumed that plaintiffs cannot present a viable claim without
    the missing evidence.
    A-3294-19
    8
    The record lacks evidence that the prejudice from the loss of the marinara
    sauce container cannot be remedied by precluding plaintiffs from presenting any
    evidence or claim that the container caused plaintiff's injury. The loss of the
    container does not irreparably prejudice defendants' ability to defend themselves
    against the claim the marinara sauce was too hot when sold.
    As previously noted, plaintiff submitted evidence that the temperature of
    a sample of the pizzeria's marinara sauce – obtained six months after plaintiff’s
    burn – was 178.8 degrees Fahrenheit. Furthermore, plaintiff produced a medical
    expert who opined that a liquid at 162 degrees Fahrenheit causes second or third-
    degree burns when contacting adult skin. Defendants did not address this issue.
    Accordingly, we reverse the dismissal of plaintiffs' complaint. On remand, the
    trial court shall consider the dismissal of the negligent packaging claim as a
    sanction for the spoliation of the marinara sauce cup and bag.
    Reversed and remanded. We do not retain jurisdiction.
    A-3294-19
    9
    

Document Info

Docket Number: A-3294-19

Filed Date: 8/3/2021

Precedential Status: Non-Precedential

Modified Date: 8/3/2021