Workers' Compensation: Spoliation of Evidence

PARTY'S DELETION OF FACEBOOK PAGE FOUND TO BE SPOLIATION OF EVIDENCE

A personal-injury plaintiff who deleted his Facebook account while the defendants were trying to access it has been sanctioned for spoliation.

The plaintiff "had a duty to preserve his Facebook account at the time it was deactivated and deleted" and the defense would be prejudiced by loss of the evidence U.S. Magistrate Judge Steven Mannion ruled Monday in Gatto v. United Airlines, 10-cv-1090.

But Mannion, who sits in Newark, declined a request for legal fees, finding the adverse-inference jury instruction he ordered was a sufficient penalty.

Frank Gatto of Brooklyn, N.Y., a baggage handler at John F. Kennedy Airport, claims he suffered serious injuries when a set of stairs used for aircraft refueling crashed into him on Jan. 21, 2008. He returned to work for a while but left that July. He claims he is permanently disabled, unable to work and limited in physical and social activities.

Gatto sued Allied Aviation Services, which owned the stairs, and United Airlines, whose plane allegedly caused the accident. The suit, filed in Middlesex County Superior Court, was removed to federal court.

The defendants first sought social media discovery in July 2011, asking for documents or records of "wall posts, comments, status updates or personal information posted or made by Plaintiff on Facebook and/or any social media website from 2008 through the present."

They also requested the same type of information about the accident and any eBay business operated by Gatto during that time frame.

United later sent forms for Gatto's signature that would authorize Facebook, MySpace, eBay and PayPal to release his information. On Nov. 21, 2011, Gatto sent them back signed, for all but Facebook.

During a conference on Dec. 1, U.S. Magistrate Judge Cathy Waldor ordered Gatto to execute the Facebook authorization, and he agreed to enable access by changing his password to "alliedunited."

The parties disagree on how the defense was supposed to access the Facebook data.

In opposing sanctions, Gatto and his lawyer, J. Silvio Mascolo, certified to their understanding that defense counsel would not access the account online but would obtain the information from Facebook's corporate offices.

Mascolo claims the defense lawyers assured him that there would be no online access and Gatto asserted that if he had known there would be, he would have objected because it would enable the lawyers to look at unrelated private information, especially his e-mail.

Gatto stated his account had been "hacked into and compromised on numerous occasions" in the past, including during his "contentious divorce."

The defendants, on the other hand, denied providing such assurances.

On Dec. 5, 2011, United lawyer Laurie Kachonick of Connell Foley in Roseland, e-mailed Mascolo, pointing out that Gatto had not changed the password and asking that it be done that day.

Kachonick admittedly went online to check on the password change and printed out some materials.

On Dec. 6, Facebook notified Gatto that his account had been accessed by an unknown IP address in New Jersey.

He told Mascolo, who e-mailed Kachonick, asking for confirmation that the records would be sought from Facebook headquarters.

Kachonick did not reply until Dec. 15. She apologized for the delay, saying she was on vacation, and explained the "account was accessed to confirm the password was changed, but will not be accessed again as we have sent the authorization to Facebook."

In response, Facebook said the Stored Communications Act barred it from disclosing the data but suggested having Gatto download the account contents.

During a telephone conference with Waldor on Jan. 6, 2012, it was agreed that Gatto would do so and turn over a copy, along with a certification that he had made no changes since the Dec. 1 conference.

Two weeks later, Mascolo e-mailed Kachonick that Gatto had deactivated the account and while he had instructed him to try to reactivate it, "I am told that once an account is deleted/deactivated, it cannot be reactivated."

It proved impossible, as he advised Kachonick on Feb. 1.

Gatto claimed he deactivated the account on Dec. 16 because "unknown people were apparently accessing my account without my permission," and Facebook automatically deleted the data 14 days later.

He claims he did not learn it was Kachonick until afterward.

The defendants moved for sanctions on June 29, contending the deletion was intentional. The lost postings would have helped refute Gatto's damage claims based on the materials printed out, which showed trips taken by Gatto, social activities and an eBay business, they claimed.

Mannion rejected the argument that the deletion was accidental.

Even if Gatto did not intend to permanently deprive the defendants of the data, he intentionally deactivated the account and failed to reactivate it within the necessary time, causing permanent loss of evidence potentially relevant to his damages and credibility, Mannion said.

He declined to award legal fees because Gatto's "destruction of evidence does not appear to be motivated by fraudulent purposes or diversionary tactics, and the loss of evidence will not cause unnecessary delay."

Mascolo, of Rebenack Aronow & Mascolo in New Brunswick, did not return a call.

Neither did defense lawyers Stacie Powers of Connell Foley in Roseland, for United, and Kenneth Gormley of Locke Lord Bissell & Liddell in New York, for Allied.

New Jersey Law Journal 3-28-13

 

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Auto Accident - Black Box to Be Included in Autos

TOYOTA SETTLEMENT SHINES LIGHT ON PROPOSED 'BLACK BOX' RULE

In the wake of Toyota Motor Corp.'s estimated $1.3 billion settlement involving claims of unintended acceleration, the National Highway Traffic Safety Administration continues to push for a rule that would require manufacturers to install "black boxes" in all new cars to record accident data. In early December, the agency proposed that event data recorders must be installed in all cars made after Sept. 1, 2014, at an estimated cost of $20 per vehicle. The devices capture safety-related data including vehicle speed and whether the brakes were activated in the seconds before a crash. NHTSA pointed to its investigation of the Toyota claims as one justification for the rule.

 

Link to article

 

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Injured Drivers Can Sue for Medical Expenses Beyond Personal Injury

Drivers who opt for lower personal injury protection amounts can sue for medical expenses that exceed their Personal Injury Protection coverage, a Union County judge has ruled in a published opinion. Superior Court Judge Kenneth Grispin's decision, in Wise v. Marienski, UNN-L-2741-09, means two women injured in a 2007 car crash can pursue claims for nearly $50,000 in uncompensated medical costs after the available $15,000 in PIP coverage was exhausted. The only other known case to address the question — Kim v. Kim, BER-L-5471-08, an unpublished decision of May 24, 2010 — reached the opposite conclusion.

 

DRIVERS CAN SUE FOR MEDICAL EXPENSES BEYOND PIP LIMITS

 

NJLJ 2/21/2012

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Tort Law - Liquor Liability - New Trial for S. Plainfield Nightclub

TORTS — LIQUOR LIABILITY
36-2-5177 Davis v. Barkaszi, App. Div. (Koblitz, J.A.D.) (25 pp.) In this dram shop case where the accident occurred only minutes after the driver left the defendant bar, we reverse and remand for a new trial because the trial court erred in three respects. The judge failed to charge the jury that if it found that alcohol was negligently served, that alcohol must have had time to enter the bloodstream of the driver prior to the accident to be a proximate cause. The judge also improperly charged the jury that the driver had an average tolerance to alcohol after precluding the defense from exploring this issue with lay witnesses. The judge erred as well in his spoliation charge because plaintiff failed to make the threshold showing that the bar improperly destroyed its video surveillance footage. This error was particularly harmful because the judge did not allow the jury to hear testimony concerning the reasons why the bar chose not to preserve the footage.

For further reading, click here

 

NJLJ 2/10/2012

 

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Woman Entitled to Benefits for Injury After Car Accident

INSURANCE — ARBITRATION — PIP

23-2-4384 Allstate New Jersey Ins. Co. v. Brockman, App. Div. (per curiam) (3 pp.) In this appeal of an order confirming an arbitration award in favor of defendant-medical providers to whom defendant Brockman, who had been injured in an auto accident while a passenger in a vehicle owned and operated by an Allstate insured, had assigned her rights to receipt of PIP benefits, the panel affirms for the reasons expressed below, including that there was a sufficient factual basis for the arbitration panel to find that Brockman did not intend to operate the unregistered and uninsured vehicle that she owned and thus was not subject to the law governing the denial of PIP benefits to a person who owns an uninsured auto. [Filed Nov. 23, 2011.]

To read more click here

 

NJLJ 11/19/2011

 

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Lawsuit - Potholes - Is the township liable?

CASE TESTS LOCAL GOVERNMENT LIABILITY FOR FAILURE TO POLICE FOR POTHOLES
In a case argued Monday, the state Supreme Court is considering whether county and local governments can be held liable for not fixing potholes they might not know about, or for not having detection systems in place to spot them. The case, Polzo v. County of Essex, A-74/75-10, brought by the family of a bicyclist who died of head injuries suffered on an Essex County road, reached the Court in 2008 and was remanded for fact finding on whether the county had constructive notice of a potential hazard — a requirement for meeting Tort Claims Act threshold. The trial judge answered in the negative, but the Appellate Division reversed, finding a potentially viable alternative theory of liability: that the county had no road-hazard inspection program in place.

http://www.law.com/jsp/nj/PubArticleNJ.jsp?id=1202516933540&slreturn=1

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Injury Lawsuit Exempts Immunity

TORTS — IMMUNITY

36-2-3368 Hehre v. DeMarco, App. Div. (Fuentes, J.A.D.) (12 pp.) Plaintiff was injured in a car accident while being driven to a school-sponsored track meet by a fellow student-athlete. He sued the track coach, Holy Spirit High School, and the Catholic diocese of Camden, claiming these defendants failed to provide him with a safe means of transportation to the school-sponsored event and, under principles of agency, were vicariously liable for the driver's negligence. By leave granted from the trial court's denial of defendants' motion for summary judgment based on the Charitable Immunity Act, we hold that the exemption to immunity provided in N.J.S.A. 2A:53A-7(c)(2) applies only to a "trustee, director, officer, employee, agent, servant or volunteer" of a charitable entity who causes "damage as the result of the negligent operation of a motor vehicle." By its plain and clear language, N.J.S.A. 2A:53A-7(c)(2) does not vitiate the immunity otherwise granted by the Legislature in N.J.S.A. 2A:53A-7(a) to an associated charitable entity.

NJLJ 8/18/2011

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Disability Benefits - Exception Reversed Ruling

PUBLIC EMPLOYEES — DISABILITY

33-2-2887 Hayes v. Board of Trustees of the Police and Firemen's Retirement System, App. Div. (Alvarez, J.A.D.) (16 pp.) Petitioner, a former Trenton police officer, suffered a traumatic event and resulting mental health disability that would ordinarily entitle her to accidental disability benefits. The board of trustees of the Police and Firemen's Retirement System found, however, that the disability arose, or "manifested" itself, four months shy of the five-year filing limit found in N.J.S.A. 43:16A-7. Since petitioner did not file for benefits until seven months after the expiration of the limit, the board denied the application as untimely. We reverse, concluding that the disability did not manifest itself until petitioner was told by her employer, more than five years after the traumatic event, that she was permanently disabled. Therefore, her claim fell within the "delayed manifestation" exception to the five-year filing limit pursuant to In re Crimaldi, 396 N.J. Super. 599 (App. Div. 2007).

 

NJLJ 7/14/2011

 

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Auto Accident Update 6/2/11

UNINSURED CAR OWNER INJURED AS PASSENGER CAN'T SUE, COURT SAYS
A statutory ban on auto-injury suits by uninsured drivers applies with equal force to an uninsured owner injured as a passenger in her own car, the state Supreme Court ruled on Wednesday. The Court, in Perrelli v. Pastorelle, A-22, reversed a trial judge's decision denying summary judgment to two defendants sued by a car owner whose insurance had lapsed. Plaintiff Denise Perrelli claimed the restriction did not apply to her because she was not operating her vehicle at the time of the crash. But the Court said such a literal reading of the statute would bring "a manifestly absurd result."

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Courtesy of NJLJ 6/2/11