Jerista v. Murray,185 N.J. 175, 883 A.2d 350 (N.J. 2005)

Summary
In April 1989, the defendant filed on behalf of plaintiffs husband and wife a complaint against a supermarket based upon injuries allegedly caused by a malfunctioning electronic door in 1987. The supermarket filed a third party complaint against the company that serviced the electronic door.

In July 1989, the supermarket served defendant with discovery requests. When the defendant failed to respond to the requests, the supermarket moved to dismiss. The motion was granted in June 1990, but the defendant never informed the plaintiffs of the dismissal.

Grown tired of waiting, the plaintiffs ultimately retained a new attorney to take over the case. When the defendant finally relinquished the file, the plaintiffs learned for the first time that the case had been dismissed nine years earlier. The new attorney’s motion to reinstate the case was denied.

In July 1999, the plaintiffs filed a malpractice action against the defendant for his negligent failure to prosecute the lawsuit against the supermarket. During discovery, the plaintiffs located only skeletal records regarding the offending door. The defendant moved for summary judgment, maintaining that the plaintiffs could not prove causation without expert testimony establishing that there was a defective condition which caused the door to malfunction. The plaintiffs filed a cross-motion for summary judgment, complaining about the lack of available records and contending that an expert was not necessary in a situation in which an automatic door malfunctioned and caused injury to a person. The defendants’ motion for summary judgment was granted, and the ruling was affirmed by the appellate court.

The New Jersey Supreme Court reversed the grant of summary judgment for the defendant and remanded the case for further proceedings. The court agreed with the plaintiffs that it is common knowledge that people ordinarily pass through automatic doors at supermarkets without injury and that it is therefore reasonable to assume that an automatic door would cause injury to a customer only as a result of negligence or malfunction. Thus, the plaintiffs were entitled to argue res ipsa loquitur.

The plaintiffs also argued that the defendant should not be allowed to benefit from his own wrongdoing on the ground that the plaintiffs could not present as evidence that which the defendant had, in effect, allowed to be destroyed. The court agreed:

Assuming arguendo that defendant misled plaintiffs about the true status of the Shop Rite case and failed to conduct discovery in that case, such 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 plaintiffs for nine years about the status of their case, defendant can be said to have consciously disregarded a substantial risk that key evidence would not be available when needed by plaintiffs.

If plaintiffs can make a threshold showing that defendant's recklessness caused the loss or destruction of relevant evidence in the underlying personal injury lawsuit, the jury should be instructed that it may infer that the missing evidence would have been helpful to plaintiffs' case and inured to defendant's detriment. (883 A.2d at 366.)

Significance of the Case
The essence of this decision is straightforward: at least in aggravated circumstances, an attorney whose malpractice injures a client has a duty to help avoid further harm through the destruction of evidence that would help prove the attorney’s malpractice and the resultant damages.

This alert has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.