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Superior Court of New Jersey, Appellate Division.


DOCKET NO. A–5099–11T1

Decided: June 12, 2013

Before Judges Reisner, Yannotti and Harris. Norman W. Briggs argued the cause for appellants (Briggs Law Office, L.L.C. attorneys;  Mr. Briggs and Adrienne Chapman, on the brief). Kenneth G. Andres, Jr., argued the cause for respondent (Andres & Berber attorneys;  Mr. Andres, Jr., of counsel;  Tommie Ann Gibney, on the brief).

Defendants Outback Steakhouse of Florida, Inc., Outback Mid Atlantic–I, L.P., and OSI Restaurant Partners, L.L.C., (collectively, defendants or Outback) appeal from a June 8, 2012 judgment awarding plaintiff Gail Feldman $552,000.93, based on a molded jury verdict in her slip-and-fall case.

On this appeal, defendants contend that the trial judge erred in:  giving a spoliation charge based on defendants' failure to produce an incident report concerning plaintiff's fall;  excluding evidence that the court found was irrelevant to plaintiff's future wage loss;  and calculating past lost wages for purposes of awarding plaintiff pre-judgment interest.   Defendants also challenge a July 28, 2010 protective order directing that defendants' counsel return certain privileged materials that plaintiff's counsel inadvertently sent to defendants' insurance company during settlement negotiations.   Having reviewed the record, we conclude that the trial court did not abuse its discretion in making the challenged rulings, the verdict was not a miscarriage of justice, and defendants' appellate contentions are entirely without merit.   Accordingly, we affirm.


Plaintiff filed a complaint alleging that she was severely injured in a fall caused by a defect in the sidewalk outside an Outback Steakhouse restaurant.   She presented the following pertinent trial evidence.

On November 24, 2006, plaintiff had dinner at Outback with her friend, Susan Johnson, and Johnson's seven year old daughter, Nicole.   After finishing the meal, plaintiff went outside to smoke a cigarette, accompanied by Johnson and Nicole.

Plaintiff moved “to the left to move away from the doors,” Nicole “moved to the right,” and Susan “was behind” plaintiff.   Plaintiff “did what [she] normally [does] when [she] smoke[s],” she “saunter[s], ․ move[s], ․ [and] step[s].”  Plaintiff “[t]ook a step or two backwards.  [Her] heel caught in the sidewalk, in the wedge, the crack, the sidewalk, and [she] went down on [her] left side.”   She fell “backwards ․ [o]n [her] left side.”   As a result of the fall, she was severely injured, and was transported to the hospital from the accident scene by ambulance.

Plaintiff presented the videotaped deposition of board certified orthopedic surgeon Robert Taffet, M.D., to detail the extent of plaintiff's injuries and treatment.   According to Dr. Taffet, plaintiff suffered permanent injuries to her hip and leg, had knee and back problems, and required multiple procedures to deal with her injuries.   She had a severe hip fracture which required surgery, and she “may eventually need a hip replacement.”   She also had “multiple fragments, of the ․ top area of the femur, and she sustained lumbar disc herniation.”   Plaintiff was ultimately declared totally disabled by the Social Security Administration, retroactive to the date of her accident.

Plaintiff also presented civil engineering expert Wayne F. Nolte, Ph.D., P.E., who opined that “a safe sidewalk is one that has elevation differentials that are no more than one quarter of an inch high.   Anything above that needs some type of treatment.”   He explained that the “vertical edge creates a trip hazard for [pedestrians].”   Nolte concluded that a raised portion of the sidewalk outside the restaurant caused the sidewalk to be defective and dangerous and “caused or contributed” to plaintiff's fall.


Defendants' appeal focuses on several of the trial court's evidentiary rulings.   We review those decisions for abuse of discretion.  Hisenaj v. Kuehner, 194 N.J. 6, 10 (2008);  Benevenga v. Digregorio, 325 N.J.Super. 27, 32 (App.Div.1999), certif. denied 163 N.J. 79 (2000).   We will not reverse a trial court's evidentiary decisions unless they are “so wide of the mark that [they result] in a manifest denial of justice.”  Bitsko v. Main Pharmacy, Inc., 289 N.J.Super. 267, 284 (App.Div.1996).   We cannot find that any of the trial court's rulings produced a miscarriage of justice in this case.

We begin by addressing the spoliation issue, which concerned a missing incident report.   Spoliation “is the term that is used to describe the hiding or destroying of litigation evidence, generally by an adverse party.”   Rosenblit v. Zimmerman, 166 N.J. 391, 400–01 (2001).   Courts frequently sanction a spoliator by giving the jury an adverse inference charge:

The best known civil remedy that has been developed is the so-called spoliation inference that comes into play where a litigant is made aware of the destruction or concealment of evidence during the underlying litigation․  Courts use the spoliation inference during the underlying litigation as a method of evening the playing field where evidence has been hidden or destroyed.   It essentially allows a jury in the underlying case to presume that the evidence the spoliator destroyed or otherwise concealed would have been unfavorable to him or her.

[Id. at 401–02 (citations omitted).]

A spoliation charge may be appropriate whether the adverse party has destroyed the evidence intentionally or negligently, if the party had a duty to preserve the evidence.   See Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J.Super. 448, 472 (App.Div.), certif. denied, 212 N.J. 198 (2012);  Manorcare Health Servs. v. Osmose Wood Preserving, Inc., 336 N.J.Super. 218, 226 (App.Div.2001).

At the trial, plaintiff presented deposition testimony from the restaurant's proprietor, Jeffrey Arnold, stating that any time someone was injured on its premises, Outback's policy was to complete an incident report and retain the report for its files.   Called as a defense witness at trial, David Weiss, who was the restaurant manager on the night of the incident, also testified that Outback's policy was to prepare an incident report if an accident occurred.   The report would include a description of the condition of the property and the exact location of the accident.

Weiss testified that he was called to the scene of plaintiff's accident by a restaurant employee.   He found plaintiff lying on the sidewalk in “extreme pain” and “called an ambulance.”   He recalled filling out a report concerning plaintiff's accident.

However, Outback failed to produce the report in discovery.   As a result, at the end of the trial, plaintiff's counsel asked the judge to give a spoliation charge.   He argued that the charge was justified because at trial, Weiss testified that he found plaintiff lying at some distance from the raised sidewalk, while at his deposition he could not recall where she was lying.   The missing incident report would probably have indicated where Weiss found plaintiff.

The judge agreed that the change in Weiss's testimony made the report an important piece of evidence.   He therefore agreed to give a spoliation charge.

On this appeal, defendants argue that the judge should have permitted their attorney to read the jury an additional portion of Arnold's deposition.   In that deposition excerpt, Arnold claimed that no incident report was prepared about plaintiff's accident, allegedly because plaintiff admitted the accident was her fault and he and Weiss believed it was unnecessary to complete a report.   At the trial, Weiss testified that Arnold was still the proprietor of the restaurant, but the defense did not make a request to call Arnold as an additional defense witness or as a rebuttal witness.1  We agree with the judge's ruling that Arnold's deposition testimony was hearsay, and no hearsay exception would permit defendant to present it in lieu of Arnold's trial testimony.

Defendants further argue that they were unfairly surprised because, before the spoliation issue was raised, the parties agreed to present Arnold's deposition testimony in lieu of his trial testimony.   Our reading of the transcript reveals no such agreement.   In fact, early in the trial, defense counsel argued that if plaintiff's counsel read other portions of Arnold's testimony to the jury, he should be required to read the testimony about the missing report as well.   The judge disagreed.   Therefore, the defense was on notice that if it wanted to present evidence about the missing report, it would have to present Arnold as a trial witness.   Outback fails to explain why it did not call Arnold as a witness.   Moreover, as noted previously, when Weiss unexpectedly gave trial testimony that varied from his deposition testimony, the missing report became more significant to plaintiff's case.

We find no error in the judge's decision to give a spoliation charge.   However, even if it was error, it was harmless.   Arnold's explanation for the missing incident report was preposterous and if offered would likely have hurt rather than helped the defense.   No reasonable juror would believe that, after a patron suffered a severe injury on the restaurant's premises, its managers would fail to complete a report documenting the patron's alleged admission of fault, because they thought a report was “unnecessary.”

We next address the disclosure of privileged documents.   Before the trial, plaintiff's counsel filed a motion for a protective order, asserting that plaintiff's former attorney had inadvertently sent defendant's insurance company three privileged documents – a private investigator's report of his interview with Susan Johnson, plaintiff's unsigned draft interrogatory answers, and a letter from plaintiff to her lawyer.   Plaintiff's counsel certified that he learned of the disclosure when defense counsel began questioning plaintiff about the documents at her deposition.   He immediately objected and demanded that the documents be returned, but defense counsel refused to return them.

In her certification, plaintiff's former attorney, Alice Cupaiuolo, Esq., denied intentionally providing the documents to the defense.   Cupaiuolo explained that during pre-suit negotiations with defendants' insurer, she sent a “settlement brochure” outlining plaintiff's claims and proof of her injuries.   The brochure, which was attached to her certification, included a detailed “list of attachments.”   None of the contested documents appeared on that list.   Cupaiuolo stated that if someone in her office enclosed the documents along with the settlement brochure, it was done by mistake.

In opposing the motion, defendants produced a certification from an insurance company employee stating that she received the settlement brochure and eventually turned over the insurer's file to defense counsel.   However, her certification did not address the disputed documents.

Defendants' attorney, Norman Briggs, Esq., submitted his own certification, attesting that he received the insurer's file, and in settlement negotiations with Cupaiuolo, conducted after the complaint was filed, the two of them “spoke about the facts of the case and content of the Memo by Investigator, Willard Brown.”   He attested that Cupaiuolo did not “state that the investigative report of Mr. Brown was sent inadvertently.”   He also stated that he “reiterated the facts of the accident as set forth in the draft Answers to Interrogatories as well.   At no point did Ms. Cupaiuolo disagree with those facts or inquire as to how we knew of said facts.”   However, he did not specifically state that he told Cupaiuolo that he had the report and the draft interrogatories in his possession.

At the oral argument of the motion, neither counsel asked the judge to hold a testimonial hearing.   The judge granted the protective order.   He concluded that the documents were privileged and were inadvertently supplied, and that the privilege was not waived.   He primarily based the decision on his review of Cupaiuolo's settlement brochure, which did not list the contested documents as being attached.   He stated:  “It is clear to the Court that there was no designation of the documents having been listed as documents that were going to be released intentionally.”

We review the judge's decision for abuse of discretion.  Medford v. Duggan, 323 N.J.Super. 127, 133 (App.Div.1999).   We find none.   Defendants concede that the documents are of the type protected either by the attorney-client privilege, N.J.R.E. 504, or the work product privilege.   See R. 4:10–2(c);  Medford, supra, 323 N.J.Super. at 133–34;  Torraco v. Torraco, 236 N.J.Super. 500, 503 (Ch. Div.1989).   However, defendants claim that the privilege was waived when Cupaiuolo allegedly voluntarily disclosed them to the insurer.   See N.J.R.E. 530;  Laporta v. Gloucester Cnty. Bd. of Chosen Freeholders, 340 N.J.Super. 254, 260–61 (App.Div.2001).   We conclude the issue was essentially a factual one, which the judge resolved in a reasonable fashion.

Because neither side requested a testimonial hearing, we find no error in the judge deciding the motion on the basis of the documents presented to him.   It was reasonable for the judge to rely on the settlement brochure, because it was the only contemporaneous source that could shed light on what documents Cupaiuolo intended to provide to the insurer during settlement negotiations.   We will not disturb the judge's findings that the disputed documents were disclosed inadvertently, plaintiff's counsel demanded their return at the earliest opportunity, and the privilege was not waived.   See Schillaci v. First Fidelity Bank, 311 N.J.Super. 396, 407 (1998).   Further, even if the judge's rulings were mistaken, the error was harmless because the documents would not have made a difference to the outcome of the case.2  Defendants' arguments on this point warrant no further discussion.   R. 2:11–3(e)(1)(E).

Defendant's remaining arguments are likewise without merit and warrant only brief discussion.  Ibid. Plaintiff submitted proposed jury questions that would have required separate findings as to past and future lost income.   The judge declined to use those proposed questions.   As a result, through no fault of plaintiff, the jury returned a combined verdict awarding both past and future lost earnings.   Because pre-judgment interest can only be awarded on past lost earnings, as opposed to future economic losses, R. 4:42–11(b), the judge calculated plaintiff's past lost earnings based on the trial evidence and awarded pre-judgment interest on that amount.   We find no error in the court proceeding in that fashion.   In this case, the lost earnings were readily ascertainable from the evidence, including the testimony of plaintiff's economic expert.   We affirm the trial judge's decision for the reasons he stated on the record on May 18, 2012.

Finally, we find no abuse of the trial court's discretion in excluding testimony that a real estate law firm, where plaintiff worked from November 2007 to March 2008, went out of business several years later.   In 2007, plaintiff was offered part-time work as a paralegal at the law firm, with a promise of full-time employment at a salary of $65,000 a year.   However, after a few months, her injury-related physical limitations prevented her from continuing in the job.   Plaintiff's economic expert calculated her future lost earnings based on a $65,000 salary.

At the trial, the primary issue as to economic damages was not whether plaintiff would have kept her job at the real estate law firm for the rest of her career, but whether the $65,000 she was offered was a realistic figure to use in calculating her future salary, when her prior annual earnings had been much lower.   Moreover, on cross-examination, defendant was permitted to elicit testimony about the downturn in the real estate market, and the massive layoffs at the real estate agency with which the law firm was associated.   Finally, even if plaintiff would not have remained at the real estate law firm for the rest of her career, her salary there could be used as a measure of her future “earning capacity.”  Moore v. Pub. Serv. Coordinated Transp., 15 N.J.Super. 499, 511 (App.Div.1951) (plaintiff, who was scheduled to be laid off from her job a month after her injury occurred, could nonetheless use her salary from that job as a measure of her lost future earning capacity).   Defendant's arguments on this point provide no basis to overturn the verdict.



FN1. Because the defense did not seek to call Arnold as a trial witness, before or after plaintiff requested the spoliation charge, defendants' reliance on Davis v. Barkaszi, 424 N.J.Super.   129 (App.Div.2012), is misplaced.   In Davis, we found it was error for the trial court to bar testimony from the defense concerning the reason a security video was erased..  FN1. Because the defense did not seek to call Arnold as a trial witness, before or after plaintiff requested the spoliation charge, defendants' reliance on Davis v. Barkaszi, 424 N.J.Super.   129 (App.Div.2012), is misplaced.   In Davis, we found it was error for the trial court to bar testimony from the defense concerning the reason a security video was erased.

FN2. The jury found plaintiff 40% liable for the accident, apparently because, while she was strolling around smoking a cigarette, she stepped backward without looking.   The investigator's report suggested that plaintiff might have stepped backward because Nicole was running toward her and she wanted to shield Nicole from touching her cigarette.   That information would probably have helped plaintiff more than defendants..  FN2. The jury found plaintiff 40% liable for the accident, apparently because, while she was strolling around smoking a cigarette, she stepped backward without looking.   The investigator's report suggested that plaintiff might have stepped backward because Nicole was running toward her and she wanted to shield Nicole from touching her cigarette.   That information would probably have helped plaintiff more than defendants.


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