NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2925-19

27-35 JACKSON AVENUE, LLC,

Plaintiff-Appellant,

v.

SAMSUNG FIRE & MARINE

INSURANCE COMPANY, LTD.,

Defendant-Respondent.

_____________________________

Submitted February 22, 2021 – Decided

Before Judges Messano, Hoffman and Smith.

On appeal from the Superior Court of New Jersey, 

Law Division, Bergen County, L-6049-17.

Varcadipane & Pinnisi, PC, attorneys for appellant 

(Jeffrey William Varcadipane and Samuel S. Saltman, 

on the briefs).

Fleischner Potash, attorneys for respondent (James P. 

Ricciardi, Jr., on the brief). 

The opinion of the court was delivered by

MESSANO, P.J.A.D.

APPROVED FOR PUBLICATION

September 10, 2021

APPELLATE DIVISION

September 10, 2021
A-2925-19 2

Plaintiff 27-35 Jackson Avenue LLC owned commercial property in 

Long Island City, New York. For no apparent reason, on January 8, 2015, a 

sprinkler head discharged water on the second floor of the premises that 

eventually damaged that floor and the one below. Plaintiff's principal tenant at 

the time was the United States General Services Administration (GSA), which, 

pursuant to a long-term lease, housed offices of the Department of Homeland 

Security at the property. Within days, GSA served written notice that it was 

terminating the lease because the premises were "untenantable." Plaintiff 

claimed to have lost millions of dollars in rent, including recoupment of the 

costs of improvements made to accommodate GSA's occupancy, because of 

the flood. It filed suit against the federal government in the United States 

Court of Federal Claims alleging breach of contract.1

Defendant Samsung Fire & Marine Insurance Co., Ltd., issued a 

commercial liability policy to plaintiff that was in effect at the time of the 

sprinkler mishap. Plaintiff secured the sprinkler head and made a claim under 

1

 The Court of Federal Claims decision granted in part and denied in part the 

Government's motion to dismiss plaintiff's complaint. See 27-35 Jackson Ave 

LLC v. United States, No. 16-947C, 2017 U.S. Claims LEXIS 1204 (Fed. Cl. 

Sept. 28, 2017). We have no further information on any developments in that 

lawsuit.
A-2925-19 3

the policy.2 Defendant's subrogation counsel and claims adjuster engaged a 

professional engineer, Alan Fidellow, who inspected the premises and took 

possession of the sprinkler head. On March 2, 2015, subrogation counsel 

advised defendant that based on Fidellow's analysis, "there [wa]s no third party 

available for subrogation." 

Approximately three weeks later, plaintiff's counsel notified defendant in 

writing that it should preserve any items removed from the premises "in their 

original condition and that no destructive testing, or any other testing that 

would alter these items, be performed." He advised that plaintiff intended to 

pursue any claims it might have "to recover for any portions of its loss not 

recoverable under the applicable insurance policies," and asked defendant "to 

preserve those items in their original condition for purposes of future 

litigation."

On May 20, 2015, defendant wrote plaintiff's counsel summarizing 

Fidellow's opinions and stating, "The failed sprinkler head was retained by our 

[a]djuster. To date no destructive testing was warranted or completed on the 

sprinkler head." In October, plaintiff's counsel wrote to defendant advising of 

the pending business interruption claim under the policy and requesting 

2

 Plaintiff subsequently filed a declaratory judgment suit against defendant 

seeking coverage for business interruption losses. That suit settled.
A-2925-19 4

"access to the sprinkler head so that it may be examined by our expert." It was 

not until March 2016 that defendant's newly-assigned claims manager 

responded, writing that defendant did "not have in its possession any property 

that may have been taken from this risk" and specifically did not have the 

sprinkler head.

Plaintiff filed this complaint, alleging defendant intentionally or 

negligently lost or destroyed the sprinkler head, and plaintiff suffered damages 

as a result. Defendant filed its answer and discovery ensued, after which 

defendant moved for summary judgment. Plaintiff opposed the motion and 

cross-moved seeking "an [a]dverse [i]nference based on [d]efendant's 

spoliation of evidence." 

After hearing oral argument, the Law Division judge reserved decision. 

She subsequently issued a written opinion in support of her order granting 

defendant's motion and dismissing plaintiff's complaint with prejudice. The 

judge subsequently denied plaintiff's motion for reconsideration, and this 

appeal followed.

I.

When reviewing the grant of summary judgment, we limit our review to 

the record before the motion judge, Ji v. Palmer, 333 N.J. Super. 451, 463–64

(App. Div. 2000), and apply the same standard that she did. Globe Motor Co. 
A-2925-19 5

v. Igdalev, 225 N.J. 469, 479 (2016). That standard mandates that summary 

judgment be granted "if the pleadings, depositions, answers to interrogatories 

and admissions on file, together with the affidavits, if any, show that there is 

no genuine issue as to any material fact challenged and that the moving party 

is entitled to a judgment or order as a matter of law." Templo Fuente De Vida 

Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) 

(quoting R. 4:46-2(c)). We owe no deference to the motion judge's legal 

analysis and "review issues of law de novo." The Palisades At Fort Lee 

Condo. Ass'n v. 100 Old Palisade, LLC, 230 N.J. 427, 442 (2017) (citing 

Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009)). Relevant to this appeal is 

recognition that "[t]he practical effect of [Rule 4:46-2(c)] is that neither the 

motion court nor an appellate court can ignore the elements of the cause of 

action or the evidential standard governing the cause of action." Bhagat v. 

Bhagat, 217 N.J. 22, 38 (2014). 

A.

The motion record additionally reveals that after inspecting the sprinkler 

head, Fidellow eliminated the possibility that the discharge resulted from a fire 

or "freeze up." He noted that the building manager had not reported any 

ceiling stains in the area nor accidental impact injuries to the sprinkler head. 

Fidellow attributed some discoloration of the sprinkler head to its age, but he 
A-2925-19 6

removed the heads of nearby sprinklers, and they did not exhibit similar 

discoloration. He said that "the pipe dope3 on the threads that were visible 

appeared to have aged more than other areas which could mean that the head 

had been existing or been reused."

Fidellow contacted the manufacturer which had discontinued the product 

in 2013; there had been no reported recalls. He concluded in a February 28, 

2015 email:

When the head discharges the guts of the head 

are pushed out with the water release. Inspection of 

the head did not show any distortion and therefore 

there is nothing that can be determined from the head. 

Without any physical evidence we can only 

surmise that there was some weakness in the internal 

elements of the head that eventually let loose allowing 

the water to discharge. There is no way however of 

proving this. The inspection reports of the sprinkler 

system would not be able to locate this type of failure.

When deposed, Fidellow said he "got rid of" the sprinkler head "a little bit 

later" but did not know the exact date. He had the head "for a couple of 

days . . . maybe [until the] beginning of March [2015] . . . when [he was] told 

to close the case." Fidellow had no protocol for preserving evidence, nor was 

he was ever notified that "there was an obligation to preserve this evidence." 

3

 "Pipe dope" is a solvent-based adhesive that provides a seal between the 

sprinkler head and the sprinkler system.
A-2925-19 7

Defendant's former claims manager testified at deposition that she 

received plaintiff's counsel's March 2015 letter requesting preservation of the 

sprinkler head and knew it was with Fidellow. She did not know he had 

discarded it or when. 

Plaintiff retained Klas Haglid, P.E., who rendered his opinions "to a 

reasonable degree of engineering certainty." Haglid criticized Fidellow's 

inspection and opinion, noting he "did not consider corrosion." Haglid 

concluded it was "[m]ore likely than not" the potential cause of the sprinkler 

head's failure was a manufacturing defect, improper installation, or improper 

maintenance. However, "without the . . . sprinkler for inspection," he was 

unable to determine the exact cause. 

During his deposition, Haglid testified that Fidellow could have 

performed further evaluations on the sprinkler head, including a "chemical 

analysis, analysis of rust or debris, spectral analysis of the metallurgy and 

chemicals left on what would be left of the valve body." Although Haglid 

would not speculate that these would have led to a specific conclusion, he 

affirmed "that if [he] had the [sprinkler] valve body and [he] did some of these 
A-2925-19 8

analyses[, he] would more likely than not reach a conclusion as to what caused 

it to discharge."4

B.

We focus only on issues that arose during argument on the motion and 

plaintiff's cross-motion that are germane to the appeal. Defendant argued 

plaintiff was "unable to make out the proximate cause link that's necessary 

between [defendant's] conduct and [plaintiff's] supposed inability to prove 

what would have been viable claims against third parties."5 Plaintiff argued 

that even though the target of its potential lawsuit was a third-party and not 

defendant, a "negative inference" was appropriate based on defendant's failure 

to preserve the evidence. Plaintiff further contended that it had established 

defendant's spoliation of the sprinkler head proximately caused its inability to 

pursue a culpable third-party and recoup its losses not covered by defendant's 

policy. 

4

 Plaintiff also retained an attorney who opined that based on Haglid's 

opinion, the failure to preserve the sprinkler head resulted in plaintiff's 

inability to pursue "one or more parties who were responsible for the failure." 

In the attorney's opinion, defendant's failure to preserve the evidence was "a 

proximate cause of [plaintiff] losing the ability to bring viable legal claims."

5

 Defense counsel specifically told the judge that defendant was not "moving 

on [defendant's] legal obligation" to have preserved the sprinkler head. 

Plaintiff conceded that the first count of its complaint, alleging intentional loss 

or destruction of evidence, should be dismissed.
A-2925-19 9

In addressing count two of the complaint alleging negligent spoliation, 

the judge cited our analysis in Gilleski v. Community Medical Center, 336 N.J. 

Super. 646, 652–53 (App. Div. 2001), and noted such a claim "require[d] a 

showing of a causal relationship between the evidence negligently destroyed or 

lost . . . and plaintiff's inability to prove damages in other third-party claims." 

She concluded that because "Haglid present[ed] no facts to infer, and much 

less, to support, that the event was probably caused by a manufacturing defect, 

improper installation, or improper maintenance . . . . These are bare 

conclusions." The judge likened plaintiff's argument to "an attempt to create a 

strict liability claim." She entered an order dismissing plaintiff's complaint. 6

Plaintiff moved for reconsideration, asserting, among other things, that 

the judge should have held a Rule 104 hearing before concluding Haglid's 

opinion was a net opinion. It also argued that the judge's analysis of the 

proximate cause issue "effectively abolishe[d] negligence-based spoliation 

claims."7 In denying plaintiff's motion, the judge distinguished out-of-state 

decisions cited by plaintiff and concluded, "Plaintiff has done nothing to 

6

 The judge reasoned plaintiff's cross-motion was moot. There is no order in 

the appellate record denying plaintiff's cross-motion.

7

 Plaintiff did not include the motion for reconsideration or defendant's 

opposition in its appendix. Defendant's appendix includes the judge's written 

statement of reasons denying the reconsideration motion. We rely on that in 

recounting the arguments made by the parties.
A-2925-19 10

demonstrate . . . a 'reasonable probability of succeeding' in an underlying suit 

against the alleged responsible third-parties."

II.

Plaintiff contends the judge should have considered the cross-motion 

"first," because with the benefit of an adverse inference against defendant, 

plaintiff met its burden of establishing a prima facie case of negligence. 

Plaintiff also argues that the judge misapplied the law regarding proximate 

cause in negligence claims based on spoilation of evidence. 

We have considered the arguments in light of the record and applicable 

legal standards. We affirm, albeit in part for reasons other than those 

expressed by the motion judge. See Hayes v. Delamotte, 231 N.J. 373, 387 

(2018) ("[I]t is well-settled that appeals are taken from orders and judgments 

and not from opinions, oral decisions, informal written decisions, or reasons 

given for the ultimate conclusion." (quoting Do-Wop Corp. v. City of 

Rahway, 168 N.J. 191, 199 (2001))). 

A.

"Spoliation of evidence in a prospective civil action occurs when 

evidence pertinent to the action is destroyed, thereby interfering with the 

action's proper administration and disposition." Cockerline v. Menendez, 411 

N.J. Super. 596, 620 (App. Div. 2010) (quoting Aetna Life & Cas. Co. v. Imet 
A-2925-19 11

Mason Contractors, 309 N.J. Super. 358, 364 (App. Div. 1998)). "[T]o a great 

extent our traditional approach to spoliation begins with identifying the 

spoliator, because that, in and of itself, will impact on the available and 

appropriate remedies." Robertet Flavors, Inc. v. Tri-Form Constr., Inc., 203 

N.J. 252, 272 (2010) (citing Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 

119–20 (2008)). When the spoliator is the defendant in the suit, the court is 

empowered to fashion an appropriate remedy. See Cockerline, 411 N.J. Super. 

at 620 ("Depending on the circumstances, spoliation can result in dismissal, a 

separate tort action for fraudulent concealment, discovery sanctions, or an 

adverse trial inference against the party that caused the loss of evidence." 

(citing Jerista v. Murray, 185 N.J. 175, 201 (2005))).

We reject plaintiff's argument that the judge should have granted its 

cross-motion and considered the record evidence with a jaundiced eye, 

specifically by granting plaintiff an adverse inference. As the Court explained 

in Rosenblit v. Zimmerman, 

The best known civil remedy that has been 

developed is the so-called spoliation inference that 

comes into play where a litigant is made aware of the 

destruction or concealment of evidence during the 

underlying litigation. . . .

Courts use the spoliation inference during the 

underlying litigation as a method of evening the 

playing field where evidence has been hidden or 

destroyed. It essentially allows a jury in the 
A-2925-19 12

underlying case to presume that the evidence the 

spoliator destroyed or otherwise concealed would have 

been unfavorable to him or her.

[166 N.J. 391, 401–02 (2001) (emphases added) 

(citations omitted).]

In other words, an adverse or spoliation inference may be utilized to address 

the intentional or negligent spoliation of evidence by a party to the suit. 

"[T]he factfinder is permitted to presume that the evidence the spoliator 

destroyed or concealed would have been unfavorable to him or her." Bldg. 

Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448, 472 (App. 

Div. 2012) (emphases added) (citing Robertet Flavors, 203 N.J. at 273; 

Rosenblit,166 N.J. at 401–02). 

Here, plaintiff complains about the chance it allegedly lost to prove a 

third-party was responsible for the sprinkler head's release and resulting flood. 

Whatever an inspection of the sprinkler head may have shown would not have 

been "unfavorable" to defendant, because defendant played no role in the 

happening of the flood. Moreover, the loss of the sprinkler head was irrelevant 

to plaintiff's declaratory judgment suit in which it sought coverage from 

defendant. Plaintiff cites no published decision in which an adverse or 

spoliation inference was used as a remedy in similar circumstances, and our 

research reveals none. The adverse or spoliation inference had no place in this 

litigation. 
A-2925-19 13

B.

We address the judge's determination that Haglid's opinion was not 

entitled to any consideration because it was essentially a net opinion. In our 

review, we apply a "deferential approach to a trial court's decision to admit 

expert testimony, reviewing it against an abuse of discretion standard." 

Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371–72 (2011) 

(citing Kuehn v. Pub Zone, 364 N.J. Super. 301, 319–21 (App. Div. 2003)). 

"However, no deference is accorded when the court fails to properly analyze 

the admissibility of the proffered evidence." E&H Steel Corp. v. PSEG Fossil, 

LLC, 455 N.J. Super. 12, 25 (App. Div. 2018) (citing Konop v. Rosen, 425 

N.J. Super. 391, 401 (App. Div. 2012)).

"The net opinion rule is a 'corollary of [N.J.R.E. 703] . . . which forbids 

the admission into evidence of an expert's conclusions that are not supported 

by factual evidence or other data.'" Townsend v. Pierre, 221 N.J. 36, 53–54

(2015) (alteration in original) (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 

583 (2008)). "An expert's conclusion 'is excluded if it is "based merely on 

unfounded speculation and unquantified possibilities."'" Id. at 55 (quoting 

Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997)). "The 

admissibility rule has been aptly described as requiring that the expert 'give the 
A-2925-19 14

why and wherefore' that supports the opinion, 'rather than a mere conclusion.'" 

Pomerantz Paper Corp., 207 N.J. at 372 (citing Polzo, 196 N.J. at 583).

Here, Haglid's opinions, as set forth in his report and deposition 

testimony, were not net opinions. He reviewed Fidellow's report and 

deposition testimony, including the photos Fidellow took of the sprinkler head 

while in his possession. Haglid reviewed other documents regarding the flood. 

He explained, however, that the photos and Fidellow's analysis were 

inadequate, primarily because Fidellow failed to consider or test for corrosion. 

He also considered Fidellow's conclusions that freezing or a mechanical blow 

did not cause the sprinkler head to release. Haglid explained the mechanism 

and operation of the sprinkler head. The transcript of Haglid's deposition is 

literally hundreds of pages. 

The essential basis for the judge's criticism of Haglid's opinion was not 

the lack of explanation supporting his conclusions, i.e., " the why and 

wherefore," but rather her determination that Haglid's opinion was "devoid of 

any factual support regarding the proximate cause element of" plaintiff's 

negligent spoilation claim. In other words, because Haglid could not say 

within a reasonable degree of engineering certainty that the sprinkler head 

failure was the result of a product defect, or was caused by faulty installation 

or maintenance, his opinion was inadmissible. Of course, this overlooked the 
A-2925-19 15

obvious — Haglid said he could not reach a definitive conclusion precisely 

because he could not examine the sprinkler head. 

We move on to address the adequacy of plaintiff's proximate cause 

proofs in the context of a negligent spoilation claim. 

C.

Our courts "have also concluded that a separate claim may be 

appropriate if the spoliator is not a party to the litigation." Robertet Flavors, 

203 N.J. at 272 (citing Jerista, 185 N.J. at 203). See, e.g., Gilleski, 336 N.J. 

Super. at 652 (where alleged spoliator was the defendant-hospital that failed to 

preserve chair which collapsed, causing plaintiff's injuries, thereby impeding 

his claim against the chair's manufacturer). Such a claim is "designed to 

remediate tortious interference with a prospective economic advantage. The 

prospective economic advantage being protected is a plaintiff's opportunity to 

bring a cause of action for which damages may be awarded." Fox v. 

Mercedes-Benz Credit Corp., 281 N.J. Super. 476, 482 (App. Div. 1995) 

(citations omitted). 

Our courts have not recognized a separate tort for negligent spoliation of 

evidence but rather have applied traditional negligence principles. Gilleski, 

336 N.J. Super. at 648–50. "[N]egligent destruction of evidence against a third 

party may be resolved by applying traditional negligence principles of a duty 
A-2925-19 16

of care, breach of that duty by defendant, and an injury to plaintiff proximately 

caused by defendant's breach." Swick v. New York Times Co., 357 N.J. 

Super. 371, 378 (App. Div. 2003) (citing Gilleski, 336 N.J. Super. at 652). In 

Gilleski, we never addressed the issue of proximate cause in a negligence suit 

based on spoliation of evidence because our focus was on whether the 

defendant owed the plaintiff a duty to preserve the evidence. 336 N.J. Super. 

at 654–55. If we view the proximately caused injury as simply plaintiff's 

inability to bring any lawsuit against a potentially liable third-party, without 

the need to demonstrate the likelihood of success in such an action, i.e., an 

award of actual damages, then plaintiff carried its burden for purposes of 

summary judgment. 

However, our decision in Swick implies there is more to the prima facie 

case. There, the plaintiff injured his arm while working on a newspaper 

conveyor system for his employer, the New York Times (the Times), and he 

sued the successors-in-interest of the manufacturer of the machine and the 

company responsible for its maintenance and repair. 357 N.J. Super. at 373–

74. Despite the plaintiff's repeated requests to inspect the machine, the Times 

sold the machine to a newspaper in the Philippines. Id. at 374.

The trial court concluded the Times had a duty to preserve the machine, 

and the matter proceeded to trial against all defendants. Id. at 375. However, 
A-2925-19 17

on the first day of trial, the plaintiff dismissed all claims against all other 

defendants, except the Times, because "[t]he manufacturer of the machine . . . 

had declared bankruptcy . . . and did not have any insurance, and . . . the 

remaining defendants had been dismissed allegedly because plaintiff could not 

establish a case against them without the opportunity to inspect the conveyor." 

Ibid. The Times moved to dismiss the complaint, arguing the plaintiff "could 

not establish a prima facie case of spoliation" because he could not prove 

damages; the trial court agreed and dismissed the complaint. Id. at 375–76.

On appeal, the plaintiff argued, among other things, that the judge erred 

in dismissing the complaint because any uncertainty regarding his damages 

was not a bar to recovery because the Times was responsible for his inability 

to proceed against the other defendants. Id. at 376. In writing for our court, 

future Justice John Wallace recapped the elements of a negligence claim based 

on spoliation of evidence. Id. at 378. Noting that neither party challenged the 

trial court's conclusion that the Times owed a duty to the plaintiff to preserve 

the conveyor machine, we noted "assuming the Times breached that duty, the 

crucial issue is whether plaintiff can demonstrate damages caused by that 

breach." Id. at 378–79 (emphasis added). We noted that the plaintiff failed to 

first pursue a discovery sanction, such as ordering the Times to pay for the 
A-2925-19 18

plaintiff's expert to fly to the Philippines and inspect the machine. Id. at 379. 

In affirming the dismissal of the plaintiff's complaint, we said:

We turn now to whether plaintiff presented any 

evidence of injury or damages proximately caused by 

the Times's alleged breach of a duty to preserve the 

equipment. As the trial court noted, plaintiff 

dismissed his complaint against all defendants except 

the Times. The proofs showed that . . . the 

manufacturer of the machine, was out of business, and 

there was no insurance coverage. Thus, even if the 

machine had been available for plaintiff's expert to 

examine, and even if plaintiff obtained a judgment 

against [the manufacturer], it was not disputed that 

plaintiff could not recover damages from [the 

manufacturer]. Under these circumstances, the 

evidence was clear that plaintiff could not prove that 

the Times's conduct in failing to preserve the machine 

proximately caused any injury to plaintiff. 

Consequently, judgment was properly entered in favor 

of the Times.

[Ibid.]

In Swick, therefore, we concluded that the negligence action failed 

because the plaintiff could not prove that the injury the plaintiff suffered from 

the defendant's negligence, i.e., the loss of evidence, proximately caused the 

plaintiff any damage. We have, in other cases, included the requirement of 

proximately caused damages to the prima facie elements of negligence in 

spoliation cases. See Hewitt v. Allen Canning Co., 321 N.J. Super. 178, 183 

(App. Div. 1999) ("[T]he tort action for spoliation affords damages to a 

plaintiff where the spoliator knows that litigation exists or is probable, the 
A-2925-19 19

spoliator . . . negligently destroys evidence . . . where such disruption is 

foreseeable, plaintiff's case is in fact disrupted, and plaintiff suffers damages 

proximately caused by the spoliator's acts." (emphasis added) (citing Hirsch v. 

Gen. Motors Corp., 266 N.J. Super. 222, 234–37, 242–43 (Law Div. 1993))); 

Viviano v. CBS, Inc., 251 N.J. Super. 113, 126 (App. Div. 1991) (including 

"damages proximately caused by the defendant's acts" as an element of prima 

facie case). Indeed, prima facie proof of actual damages is an element of all 

successful negligence actions. See, e.g., Coleman v. Martinez, 247 N.J. 319, 

337 (2021) ("The fundamental elements of a negligence claim are a duty of 

care owed by the defendant to the plaintiff, a breach of that duty by the 

defendant, injury to the plaintiff proximately caused by the breach, and 

damages." (emphasis added) (quoting Robinson v. Vivirito, 217 N.J. 199, 208 

(2014))).

In Kranz v. Tiger, the plaintiff sued his attorneys and the expert doctor 

they retained, claiming the attorneys' failure to properly communicate and 

schedule the expert's appearance at trial, and the doctor's negligence in 

conveying his schedule to the attorneys, resulted in the doctor's failure to 

appear at trial and a settlement far below the actual value of plaintiff's injuries. 

390 N.J. Super. 135, 140 (App. Div. 2007). In reversing the trial judge's 

directed verdicts in favor of the defendants, we noted that "[t]he most common 
A-2925-19 20

way to prove the harm inflicted by malpractice or other misconduct that 

adversely affected the outcome in the underlying action is a suit-within-a-suit." 

Id. at 145 (emphasis added) (citing Garcia v. Kozlov, Seaton, Romanini, & 

Brooks, PC, 179 N.J. 343, 358 (2004)). The plaintiff must demonstrate, at the 

least, "he would have recovered a judgment in the action against the main 

defendant [and] the amount of that judgment." Ibid. (quoting Garcia, 179 N.J. 

at 358). However, proving damages via the suit-within-a-suit method is "not 

the only course." Id. at 146 (citing Garcia, 179 N.J. at 358–61). In Kranz, the 

plaintiff was able to demonstrate actual damages utilizing the suit-within-a-suit 

method even though the critical evidence, i.e., the doctor's testimony, was 

absent from the underlying trial.

We recognize the difficulty in using the suit-within-a-suit method to 

prove damages in a negligence case based on spoilation of critical evidence 

because the lost evidence impedes the plaintiff's ability to prove both 

proximate cause for the underlying event and proximately caused damages. 

Other jurisdictions have wrestled with this knotty issue.

In Boyd v. Travelers Insurance Company, a case cited by plaintiff, a 

propane heater exploded causing severe burns to the plaintiff, and the 

defendant-insurer failed to preserve the heater. 652 N.E.2d 267, 269 (Ill. 

1995). The court recognized the plaintiff's claim against the insurer for 
A-2925-19 21

spoliation of evidence applying traditional negligence principles, stating "in a 

negligence action involving the loss or destruction of evidence, a plaintiff must 

allege sufficient facts to support a claim that the loss or destruction of the 

evidence caused the plaintiff to be unable to prove an underlying lawsuit." Id.

at 270–71. Noting "[a]ctual damages must be alleged as well," the court held: 

"Consequently, a plaintiff is required to allege that a defendant's loss or 

destruction of the evidence caused the plaintiff to be unable to prove an 

otherwise valid, underlying cause of action. A plaintiff must prove this before 

the harm has been realized." Id. at 272 (emphasis added). 

In other words, contrary to the argument plaintiff makes in its brief, 

Boyd held that the plaintiff must demonstrate likely success in the underlying 

case, i.e., the suit-within-a-suit. See id. at 271 n.2 ("A plaintiff must 

demonstrate, however, that but for the defendant's loss or destruction of the 

evidence, the plaintiff had a reasonable probability of succeeding in the 

underlying suit." (emphasis added)).

The Supreme Court of Alabama took a different tack in Smith v. 

Atkinson, also cited by plaintiff. 771 So.2d 429 (Ala. 2000). There, the 

defendants, an insurance company and its adjuster, failed to preserve a 

minivan involved in an accident in which the plaintiff's wife was killed. Id. at 

431. On certification from the federal district court, the Supreme Court of 
A-2925-19 22

Alabama recognized that the plaintiff had a cause of action under traditional 

negligence principles. Id. at 432. The court defined the elements of such a 

claim, namely, that the spoliator had knowledge of pending or potential 

litigation, owed the plaintiff a duty to preserve the evidence, and "the missing 

evidence was vital to the plaintiff's pending or potential action." Ibid. The 

Smith court, however, parted company with Boyd on the issue of proximate 

causation and damages, concluding the need to prove an "'otherwise valid' 

[claim] places too heavy a burden on the plaintiff. Without the lost or 

destroyed evidence, the plaintiff cannot show that the underlying claim was 

valid." Id. at 434 (quoting Boyd, 652 N.E.2d at 272).

The court resolved the proximate cause issues by concluding: "Once all 

three . . . elements are established, there arises a rebuttable presumption that 

but for the fact of the spoliation of evidence the plaintiff would have recovered 

in the pending or potential litigation; the defendant must overcome that 

rebuttable presumption or else be liable for damages." Id. at 432–33. "The 

third party can overcome the presumption by producing evidence showing that 

the plaintiff would not have prevailed in the underlying action even if the lost 

or destroyed evidence had been available." Id. at 435.

Additionally, the court noted that "[t]he appropriate measure of damages 

is difficult to determine in spoliation cases because, without the missing 
A-2925-19 23

evidence, the likelihood of the plaintiff's prevailing on the merits cannot be 

precisely determined." Id. at 436. The court rejected a method adopted by 

another court, where the "measure of damages . . . could be the damages that 

would have been obtained in the underlying lawsuit, multiplied by the 

probability that the plaintiff would have won the suit had he had the spoliated 

evidence." Id. at 437 (quoting Petrik v. Monarch Printing Corp., 501 N.E.2d 

1312, 1320 (Ill. App. 1986)). Ultimately, the Smith court concluded,

without the spoliated evidence, the plaintiff's 

probability of success is too tenuous a measure to be 

consistently applied and that any attempt to apply it 

would constitute pure speculation. Therefore, in 

determining damages, we reject the use of probability 

of success as a benchmark, in favor of the use of 

compensatory damages that would have been awarded 

on the underlying cause of action, if the defendant 

cannot overcome the rebuttable presumption.

[Id. at 438.]

Other jurisdictions have adopted the Smith court's use of a rebuttable 

presumption on the issue of proximately caused injury and damages in 

spoliation litigation. See Rizzuto v. Davidson Ladders, Inc., 905 A.2d 1165, 

1178–82 (Conn. 2006) (applying presumption as to proximate cause and 

damages while recognizing independent tort of intentional spoliation of 

evidence); Hannah v. Heeter, 584 S.E.2d 560, 569–71 (W.Va. 2003) (applying 

Smith standards to negligent spoliation claim).
A-2925-19 24

Other courts have rejected the creation of any presumption in the 

proximate cause analysis and followed some modification of Boyd's 

"reasonable probability of succeeding" burden. For example, in Holmes v. 

Amerex Rent-A-Car, the District of Columbia Court of Appeals, in 

recognizing a separate tort for negligent spoliation of evidence, concluded a 

plaintiff must demonstrate in addition to the existence of a duty and breach of 

that duty, "the underlying lawsuit was significantly impaired, that the spoliated 

evidence was material to that impairment and that the plaintiff enjoyed a 

significant possibility of success in the underlying claim." 710 A.2d 846, 850 

(D.C. Cir. 1998) (emphasis added). The court explained the difficulty in 

defining the plaintiff's proximate cause burden:

These countervailing interests — the plaintiff's 

interest in recovery for lack of ability to prove the 

underlying case, and the defendant's interest in only 

compensating plaintiff for defendant's harmful 

negligence or recklessness — must be balanced in 

determining the standard of proof for causation in an 

independent action for negligent or reckless spoliation 

of evidence.

This adds a unique characteristic to the tort. 

Not only must the plaintiff show that an expectancy of 

recovery was harmed, but also that such an expectancy 

realistically existed. Specifically, proximate cause 

must include two showings. First, it must be shown 

that the defendant's actions proximately caused some 

level of impairment in the plaintiff's ability to prove 

an existing underlying civil claim. Second, in order to 

show that defendant's actions proximately caused any 
A-2925-19 25

damages, it must be shown that plaintiff's underlying 

claim was, at some threshold level, meritorious.

[Id. at 850–51.]

After surveying decisions from other jurisdictions applying diverse standards 

for determining proximate cause in spoliation litigation, the court held 

in order to demonstrate causation, a plaintiff must 

demonstrate that (1) the underlying claim was 

significantly impaired due to the spoliation of 

evidence; (2) a proximate relationship exists between 

the projected failure of success in the underlying 

action and the unavailability of the destroyed 

evidence; and (3) that the underlying lawsuit would 

enjoy a significant possibility of success if the 

spoliated evidence were still in existence.

[Id. at 852 (emphasis added).]

Interestingly, the Holmes court nonetheless applied the discount method for 

determining damages, where the total damages are multiplied by the 

probability of success in the underlying lawsuit. Id. at 853. 

The Supreme Court of Montana adopted the same "significant possibility 

of success" causation standard. Oliver v. Stimson Lumber Co., 993 P.2d 11, 

20–21 (Mont. 1999) (adopting Holmes' analysis). That standard was "lower 

than the standard of 'preponderance of the evidence.' . . . [A] plaintiff must 

demonstrate a substantial and realistic possibility of succeeding, but need not 

demonstrate that such success was more likely than not." Id. at 21. The court 

in Oliver also applied a discount formula to the calculation of damages. Ibid. 
A-2925-19 26

Plaintiff contends the motion judge should not have required that it 

demonstrate a likelihood of success in an underlying suit against the sprinkler 

manufacturer, installer, or maintenance company. It argues, quite 

descriptively, that adopting such a standard means "the damages element is 

thus pit against the proximate cause element." Although not specifically 

urging adoption of the Smith presumption in spoliation situations, plaintiff 

contends it sufficiently demonstrated defendant's negligence proximately 

caused its injury and damages to permit the case to proceed to a jury.

We would not presume to adopt such a far-reaching approach as that 

endorsed by the Alabama Supreme Court in Smith. "[O]ur role as an 

intermediate appellate court is to follow the dictates of the Supreme Court 

. . . ." RSB Lab'y Servs., Inc. v. BSI, Corp., 368 N.J. Super. 540, 560 (App. 

Div. 2004) (citing Nixon v. Lawhon, 32 N.J. Super. 351, 355 (App. Div. 

1954)). Our restraint is particularly warranted when it comes to expansion of 

"established law." Rodriguez v. Cordasco, 279 N.J. Super. 396, 405 (App. 

Div. 1995). Nor, for the same reasons, do we specifically adopt the 

"significant possibility of success" standard adopted by the court in Holmes. 

Although the Court has yet to speak directly to the proximate cause issue 

in negligence cases based on spoliated evidence, for purposes of avoiding 

summary judgment, the well-established elements of a negligence claim 
A-2925-19 27

required plaintiff to marshal sufficient proof to have avoided dismissal at trial 

under Rule 4:37-2(b). Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 

536 (1995). Dismissal under Rule 4:37-2(b) is only appropriate "where no 

rational juror could conclude that the plaintiff marshaled sufficient evidence to 

satisfy each prima facie element of a cause of action." Smith v. Millville 

Rescue Squad, 225 N.J. 373, 397 (2016) (quoting Godfrey v. Princeton 

Theological Seminary, 196 N.J. 178, 197 (2008)). Plaintiff's burden included 

proof of proximately caused damages. Robinson, 217 N.J. at 208; see also

Model Jury Charges (Civil), 1.12O, "Damages" (approved Nov. 1998) 

(explaining that plaintiff has the burden of showing "the damages were the 

natural and probable consequences of the defendant's negligence. . . . 

Damages may not be based on conjecture or speculation."). 

Plaintiff may have presented a prima facie case that it suffered an 

"injury" proximately caused by defendant's negligence because it could not 

initiate a lawsuit against a potential third-party without the ability to inspect 

the sprinkler head; however, Haglid's opinions did no more than point a finger 

at three possible defendants potentially responsible for the untimely sprinkle r 

discharge. The opinions did not explain why any one of those defendants' 

product, installation, or maintenance caused plaintiff's damages. 
A-2925-19 28

One possible defendant was the manufacturer of the sprinkler head, who 

advised Fidellow the product was no longer produced and never recalled. 

Fidellow, who actually examined the sprinkler head, explained "that there was 

some weakness in the internal elements of the head that eventually let loose" 

when the sprinkler head discharged. That seemingly pointed to a possible 

product defect, yet the record is devoid of any further attempts by plaintiff to 

develop through discovery or otherwise additional information about the 

device from the manufacturer. Nor did Haglid explain why Fidellow's opinion, 

albeit insufficient in his mind to prove a product defect, was not significant 

enough to help Haglid limit the likely cause of the discharge.

Another candidate was the installer of the system, which plaintiff itself 

engaged as part of the improvements done for the GSA lease. The installer 

had actually started suit against plaintiff in New York courts to recover monies 

it claimed were owed by plaintiff. However, the record lacks any information 

demonstrating plaintiff took additional steps to discover whether the general 

contractor or subcontractor it engaged were potentially responsible, or at least 

provide Haglid with additional information in that regard. 

The third candidate was the inspection/maintenance service plaintiff 

hired to routinely inspect and service the sprinkler system. The record 

includes the contract with that company and some of its inspection reports. 
A-2925-19 29

There is nothing else demonstrating plaintiff's efforts to obtain further 

information for Haglid's consideration, nor did Haglid rebut Fidellow's 

conclusion that the inspection reports were not helpful in determining the 

cause of the discharge.

We hasten to add that plaintiff's failure was not as to the amount of 

damages it allegedly sustained by being unable to litigate its claims against 

any of the three potential third parties Haglid identified. Our courts have 

permitted "considerable speculation" by the fact finder in that regard. V.A.L. 

Floors, Inc. v. Westminster Cmtys., Inc., 355 N.J. Super. 416, 424 (App. Div. 

2002). However, "[t]he rule relating to the uncertainty of damages applies to 

the uncertainty as to the fact of damage and not as to its amount." Tessmar v. 

Grosner, 23 N.J. 193, 203 (1957) (emphasis added) (citing Oliver v. 

Autographic Reg. Co., 126 N.J. Eq. 18, 25 (Ch. 1939)).

Plaintiff was required to demonstrate not only the lost opportunity to 

pursue a case against the manufacturer, installer, or maintenance provider 

because of defendant's spoliation of the sprinkler head, but also that it suffered 

actual damages because of defendant's negligence. As to this second aspect of 

the proximate cause element, plaintiff was not required to demonstrate the 

underlying suit would have succeeded, but it needed to marshal more than 

simply an expert's opinion that there could have been three reasons for the 
A-2925-19 30

sprinkler head's failure and, hence, three possible target defendants. Plaintiff 

failed to do so, and, as a result, the judge properly granted summary judgment. 

Affirmed.