If you are an evidence nerd, you’ll find this opinion to be a treat. Plaintiff 27-35 Jackson Avenue LLC owned commercial property in New York. For no apparent reason, a sprinkler head discharged water on the second floor of the premises, damaging the first and second floors. Plaintiff’s principal tenant was the United States General Services Administration (“GSA”). GSA served written notice that it was terminating the lease because the premises were “untenantable”. Defendant’s subrogation counsel hired a professional engineer, who inspected the premises and took possession of the sprinkler head. After completing testing, the engineer lost the sprinkler head. Plaintiff filed a complaint, alleging negligent spoilation. Plaintiff 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 insurance policy. The trial court granted Defendant’s motion for summary judgment. The New Jersey Appellate Division affirmed. The Court noted Plaintiff was required to demonstrate the lost opportunity to pursue a case against the manufacturer, installer, or maintenance provider because of Defendant’s spoliation of the sprinkler head and 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. Still, it needed to present more than an expert’s opinion that there could have been three reasons for the sprinkler head’s failure and, hence, three possible target defendants. But Plaintiff did not do so.
