The New Jersey Appellate Division recently reversed a trial court’s dismissal of a falldown case, raising some instructive points. The plaintiff had slipped and fallen on black ice near a metal drainage grate in her employer’s parking lot and sued the owner of the building and lot.The trial court judge found that prior complaints of ice in the parking lot were insufficient to constitute constructive notice of icing conditions in the area of the lot where the plaintiff fell. The plaintiff’s attorney argued against dismissal of the case, indicating that the owner did have notice of the icing conditions, and also claiming that the defendants committed spoliation of evidence when they failed to produce a complete copy of the incident report.
The court found that the defendants’ witnesses admitted that information was missing from the incident report and that defendants’ building engineer was aware of prior complaints about ice in the parking lot. The plaintiff also provided evidence that precipitation and temperatures rose above and fell below freezing over a three day period before plaintiff’s fall.
The Appellate Division noted that the trial court judge never addressed the plaintiff’s spoliation claim. It also found that there was sufficient evidence from which a reasonable jury could conclude that defendants had notice of ice in the lot and failed to remediate the problem.
This decision points out the need generally for plaintiffs’ attorneys to gather evidence that the property owner knew or should have known of the dangerous condition but failed to address it. It also demonstrates that a defendant’s concealment or destruction of relevant evidence in the case may have severe consequences, up to and including an instruction to the jury that it might infer from the spoliation that the evidence tended to prove the defendant’s negligence.