Defense Digest

New Jersey Supreme Court Permits Spoliation Inference And Extends Res Ipsa Doctrine To Legal Malpractice Action Arising Out Of Underlying Product Liability Claim

In Jerista v. Murray, 2005 N.J. LEXIS 1133 (Oct. 12, 2005), the New Jersey Supreme Court held that in a legal malpractice action arising out of an underlying product liability action involving automatic doors which malfunctioned, causing injury, the Doctrine of Res Ipsa Loquitur is available to a plaintiff.

In Jerista, the plaintiff was injured when a supermarket's automatic door unexpectedly closed on her. An attorney was retained to handle the negligence lawsuit against the supermarket. The attorney allegedly failed to respond to discovery requests, and the complaint was dismissed. Over the course of nine years, the attorney concealed from his clients the complaint's dismissal, allegedly resulting in the loss of evidence necessary to prosecute the malpractice claim. The plaintiffs alleged that, but for the attorney's derelictions, they had a strong negligence case against the supermarket based on the res ipsa doctrine. The trial court granted summary judgment in the legal malpractice action, and the Appellate Division affirmed because the plaintiffs failed to present expert testimony explaining what went wrong with the automatic door and, therefore, were not entitled to res ipsa inference. The Supreme Court reversed, holding that it is a matter of common knowledge that an automatic door ordinarily does not swing closed on a customer unless the store owner negligently maintained the doors. When the average juror can deduce what happened without resorting to scientific or technical knowledge, expert testimony is not mandated. Therefore, a res ipsa inference was warranted. Accordingly, the Supreme Court reversed the Summary Judgment Order and remanded the matter for trial.

Also, the plaintiffs alleged that the attorney's negligence and dishonesty led to the loss of evidence necessary to prove their claim against the market (suit within a suit) and, ultimately, their malpractice claim against him. The plaintiffs argued that they were deceived into believing that their lawsuit was proceeding forward, when, in fact, the attorney knew it had been dismissed due to his non-compliance with discovery demands. By the time the plaintiffs learned of the suit's dismissal, twelve years had passed since the accident. The plaintiffs argued that concealment of the truth resulted in the destruction or loss of critical records kept by Shop Rite and the door company concerning the servicing of the door that malfunctioned. In fact, Shop Rite and the door company successfully opposed reinstatement of the original complaint in which they were named parties because they were hampered in their defenses due to loss of records, long-faded memories, and changed conditions at the accident site.

The Supreme Court held that if the attorney misled the plaintiffs about the true status of the Shop Rite case and failed to conduct discovery, that dishonesty and dereliction created a high probability that records would be purged and evidence lost, making it difficult, if not impossible, for plaintiffs to prosecute the "suit within a suit" malpractice action. By deliberately deceiving the plaintiffs for nine years about the status of the case, the attorney can be said to have consciously disregarded a substantial risk that key evidence would not be available when needed by the plaintiffs. Therefore, the Court ruled that if the plaintiffs can make a threshold showing that the attorney's recklessness caused the loss or destruction of relevant evidence in the underlying personal injury suit, the jury should be instructed that it may infer that the missing evidence would have been helpful to the plaintiffs' case. The Court held that the jury would be free to accept or reject that inference -- just like the permissive inference of negligence that jurors may draw under the doctrine of res ipsa loquitur. The spoliation inference, according to the Supreme Court, will ensure that one party will not benefit by recklessly depriving another party of the evidence needed to present the claim or defense.

The attorney argued that the plaintiffs' lack of cooperation led to the dismissal and he never misled them. However, the Supreme Court held that this would be a jury issue. At trial, if the jury believes that the plaintiffs were responsible for the lawsuit's dismissal, then their malpractice suit would fail. However, if the jury finds that the attorney's professional defaults caused the dismissal, then the jury would have to consider the other elements of the malpractice action and, in doing so, should consider whether the attorney's conduct led to the spoliation of the evidence.

If you have any questions regarding this opinion, please contact Jack Slimm of our Cherry Hill Office.

*Jack, a shareholder in our Cherry Hill, NJ office, can be reached at (856) 414-6021 or jlslimm@mdwcg.com.