If you are planning to sue to recover damages relating to construction defects, don’t destroy the evidence of the defects before the defendants have had a reasonable opportunity to inspect and document them. Such premature destruction of evidence could destroy the strength of your case.

In a recent unpublished case (Tribble v. Mytelka , A-2735-05T5 (November 30, 2006)), the Appellate Division reiterated that if the defendants are unable to challenge plaintiff’s evidence because the plaintiff has destroyed it (“spoliation”), the trial court must not only “level the playing field” by barring the plaintiff from using any evidence that the defendants cannot effectively challenge because of the spoliation but may also need to instruct the jury that the excluded evidence must be presumed to weigh against the plaintiff who destroyed it.

Three or four months after Plaintiff Diane Tribble purchased a home from Defendants David and Mildred Mytelka, termites began to fenestrate the living room floor. In April 2003, Tribble’s exterminator discovered that the termites were coming from the foundation of the adjacent greenhouse. In January 2004, Tribble had another contractor remove sheetrock from the foundation. He discovered the foundation to be water-soaked, rotted and termite-infested. Tribble photographed it.

After meeting defendants’ real estate agent and representatives of her firm in April 2004, Tribble received no further response from the Mytelkas. In May 2004, Plaintiff’s home inspector re-inspected the property and concluded that defendants had installed the sheetrock deliberately to conceal the deteriorated foundation. Tribble’s attorney notified all the defendants of the greenhouse’s condition, demanded reimbursement, and warned that the greenhouse and foundation were uninhabitable and in danger of collapse. In July 2004, before the defendants had an opportunity to inspect or photograph the greenhouse or retain a structural engineer, Plaintiff hired a contractor to demolish the greenhouse and replace it with a new sun room.

The trial judge found that Tribble’s demolition of the greenhouse constituted spoliation, that is, unjustified destruction of evidence, and determined that Tribble’s expert reports and photographs had to be excluded as evidence. Reasoning that Tribble’s case could not stand without the photographs and reports, the judge then dismissed Tribble’s lawsuit.

The Appellate Division agreed that the trial judge had properly determined that “‘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,” and that Tribble’s destruction of the greenhouse was spoliation. Emphasizing that discovery was ongoing when the greenhouse was demolished, the appellate court rejected Tribble’s argument that equitable considerations, including laches, estoppel, and waiver, constituted defenses to the spoliation under the facts of the case. The court also rejected Tribble’s contention that spoliation could not apply if the defendants had not expressly demanded that plaintiff preserve the evidence.

The appellate court disagreed with the trial court only in its ultimate determination to grant summary judgment dismissing the case. The appellate court concluded that, after excluding the photographs and expert testimony, trial could have proceeded, with Tribble’s and other witnesses’ fact testimony as evidence, so long as the jury was instructed of a “spoliation inference,” which would instruct the jury that “all things must be presumed against the destroyer” and that they must assume that the missing evidence would have been damaging to Tribble.

The practical effect of “leveling the playing field” can be evisceration of the case of the party that destroyed the evidence. Both plaintiffs and defendants in construction defect cases must, therefore, proceed with caution even when the defect or deficiency requires timely remediation to prevent further damage to the structure as a whole or to remediate life-safety issues. The party contemplating work that may destroy evidence must provide the opposing party with notice of the alleged defective condition and the proposed remedial action as well as an opportunity to inspect, evaluate and document it and to observe the remedial wok as it occurs.