How far might a defending entity go to skip out on fair compensation? One may be surprised how far even an innocuous business may go to prevent recovery at trial. The court allowed for a presumption the information sought to be concealed would be damaging to the defendant, Outback Steak House of Florida, Inc. (“Outback”) in Feldman v. Outback Steakhouse of Florida, Inc., Superior Court of New Jersey, Appellate Division, Docket No.: A-5099-11. Outback appealed from a June 8, 2012 judgment awarding plaintiff $552,000.93, based on a molded jury verdict in her slip-and-fall case. On appeal, Outback argued the trial judge erred in giving a spoliation charge based on defendant’s failure to produce an accident report concerning plaintiff’s fall; excluding evidence the court found was irrelevant to plaintiff’s future wage loss and calculating past lost wages for purposes of awarding plaintiff pre-judgment interest. The Superior Court found the trial court did not abuse its discretion in making the challenged rulings, the verdict was not a miscarriage of justice, and the contentions are entirely without merit.
Feldman filed a complaint alleging she was severely injured in a fall caused by a defect in the sidewalk outside an Outback Steakhouse restaurant. On November 24, 2006, Feldman had dinner with her friend, Johnson, and Johnson’s young daughter. After eating, Feldman went outside to smoke a cigarette with Johnson and her daughter. Feldman “did what [she] normally [does] when [she] smoke[s],” she “saunter[s], move[s], [and] step[s].” When Feldman took a step or two backwards, her heel caught in the sidewalk crack and she fell on her left side. Consequently, Feldman was severely injured and was transported to the hospital from the accident scene by ambulance.
According to Feldman’s orthopedic surgeon, Dr. Taffet, plaintiff “suffered permanent injuries to her hip and leg, had knee and back problems, requiring surgery, and she ‘may eventually need a hip replacement.’” She also suffered from multiple bone fragments in the top area of the femur and lumbar disc herniation. Feldman was ultimately declared totally disabled by the Social Security Administration as a result of the injuries she sustained.
Feldman also presented a civil engineering expert, Wayne Nolte, who stated 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 elaborated by saying the “vertical edge creates a trip hazard for [pedestrians].” This raised portion of the sidewalk caused the defect of the sidewalk outside the restaurant that “caused or contributed” to plaintiff’s fall.”
The appellate court reviewed the trial court’s findings under the standard of abuse of discretion. The evidentiary decisions made by a trial court must be “so wide off the mark that [they result] in a manifest denial of justice.” Bistko v. Main Pharmacy, Inc., 289 N.J.Super. 267, 284 (App.Div.1996). The court could not find that there was a miscarriage of justice as a result from the evidentiary rulings.
The trial court sanctioned Outback by giving it an adverse inference charge because the court found Outback was a “spoliator.” A spoliator is a party who hides or destroys evidence to be used in litigation. When a party is a spoliator, the court should provide the spoliation inference, which allows a jury to presume that the evidence the party destroyed or hid would have a disadvantageous effect to the spoliating party in the litigation. “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.”
Outback’s proprietor, Jeffrey Arnold (“Arnold”) stated anytime someone was injured on the premises, the business policy was to report what happened and where the injury occurred. This incident report would be filed. This procedure was confirmed by the manager on duty the night of the accident, David Weiss, (“Weiss”). “The report would include a description of the condition of the property and the exact location of the accident.” Weiss recalled filling out a report for plaintiff’s accident. This report was not produced in discovery. Feldman’s attorney requested the judge give a spoliation charge because Weiss testified he found Feldman lying some distance away from the raised sidewalk, although he claimed he could not recall where he found her at his deposition. The judge agreed the change in Weiss’ testimony made the report an important piece of evidence and that piece of evidence was distinctly absent. The defense’s poor position was worsened when Arnold claimed there was no incident report filed because Feldman admitted it was her fault. The court found it would not make sense to neglect filing a typical incident report if in fact, Feldman admitted to the accident being her fault. Plaintiff’s $552,000.93 was upheld on appeal.