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NJ Court Won?t Dismiss Defect Claim Despite Destroyed Evidence

Monday, October 04, 2010 03:42 am


Ideally, construction defects are quickly identified, the culpable party alerted, the cause investigated and a solution achieved. Clearly, that?s not how it goes when time is of the essence to correct costly problems. However, proceeding with repairs, before the defects can be properly documented and investigated, destroys (or spoilates) evidence. A court?s goal when dealing with evidence spoilation is to level the playing field; that is, to "make whole" the claim that?s been impaired by the absence of evidence and to punish the wrongdoer. Rosenblit v. Zimmerman, 166 N.J. 391, 401-03, 411, 766 A.2d 749 (2001). That?s difficult to do. Courts may be forced to dismiss though that remedy can be unfair.

Courts balance culpability and prejudice

In Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994), the U.S. Court of Appeals for the Third Circuit found dismissal inappropriate. It applied a threeprong test that considered (1) the degree of the spoliator?s fault, (2) the prejudice to the other party and (3) whether lesser sanctions existed that would avoid unfairness. Here, alleged design defects caused an electric saw to injure a workman. An expert discerned that the saw?s guard mechanism allowed in debris, which caused the accident. The expert did not retain the debris. Nevertheless, the court found that there was sufficient evidence to try the claim and that the expert had not acted egregiously or out of ill will.

Non-spoilator may bear some responsibility [...]

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