Voellinger v. Dow, A-5768-09T3; Appellate Division; opinion by Fisher, J.A.D.; decided and approved for publication June 22, 2011. Before Judges Fisher, Sapp-Peterson and Simonelli. On appeal from the Law Division, Mercer County, L-1511-08. [Sat below: Judge Innes.] DDS No. 19-2-2624 [9 pp.]

In this appeal, the court examines whether or to what extent the Division of Criminal Justice may be liable for losing or destroying evidence properly seized years earlier during a criminal investigation.

Plaintiffs were principals of Aeroplating Inc., a metal plating business in Woodbury Heights. In 1980, plaintiffs purchased the property and business assets of Electro-Coatings Inc. (ECI), which had operated a metal plating business on the site since 1969. In September 1985, a Woodbury City sewer worker died after being exposed to fumes traced to Aeroplating’s business. Pursuant to a valid search warrant, the division seized several boxes of records relating to the chemicals used at the Aeroplating facility.

In March 1986, Aeroplating and its manager were charged with second-degree manslaughter; the indictment alleged they discharged 1-1-1 Trichloroethane into the Woodbury City sewer system beyond the limitations of a permit held by Aeroplating and with a conscious disregard of a substantial and justifiable risk for the consequences. Both the defendants pleaded guilty in 1987 and Aeroplating was ordered to pay a $50,000 fine.

In 1990, Aeroplating ceased operations and filed for bankruptcy protection. The property was sold and plaintiffs were required to remediate the contamination. They commenced an action in April 2004 against ECI, seeking contribution for past, present and future costs associated with cleaning the site pursuant to the Spill Compensation and Control Act.

Believing the Aeroplating records seized by the division in 1985 were germane in determining responsibility for contamination of the site, plaintiffs filed a request pursuant to the Open Public Records Act (OPRA) in August 2007; the request was denied because the division could not locate the records. Plaintiffs filed this action against the attorney general, alleging negligence and conversion.

The judge granted the attorney general’s motion for summary judgment, concluding that plaintiffs’ only cause of action was for replevin, which was time-barred.

Held: Based on bailment principles, which in these circumstances imposed a gross negligence standard, the Division of Criminal Justice is not liable for losing or destroying evidence properly seized years earlier.

The appellate panel rejects the motion judge’s determination that the only cause of action arising from the circumstances is replevin, which is time-barred, and further finds the statutory right of replevin does not lie in these circumstances. Plaintiffs do not dispute that the division took possession of the documents pursuant to a valid search warrant; the taking was lawful. Plaintiffs also have not claimed that the division’s retention of the records, at least until 2007, when the first request for their return was made, was unlawful.

The record demonstrates that the materials in question constituted the property of Aeroplating. Following the conclusion of the criminal prosecution, the division’s unfettered dominion and right to retain the property ended, and Aeroplating had the right to demand its return. The division’s written standard operating procedures called for the division to notify Aeroplating that the materials were available for return. These procedures also provided that should “the owner choose not to have the evidence returned, the division will seek permission from the owner to forfeit the evidence for disposal.” In light of the inordinate passage of time, there is no evidence as to what communications, if any, occurred between the division and Aeroplating after the conclusion of the criminal matter. And it is not clear what became of the records.

In defining the nature of the parties’ relationship to the property and to each other once the criminal prosecution concluded, the appellate panel concludes that a bailment was created. When, for example, a sheriff takes possession of property pursuant to writ or court order, a constructive bailment is created and the sheriff becomes liable for his or her negligence in preserving the property. The imposition of ordinary negligence standards in that circumstance arises from the fact that a sheriff is due compensation and thus assumes a position “analogous to that of a bailee for hire.” Here, the division earned no fee for retaining Aeroplating’s property; once it had no further use for this evidence, the division acted merely as a “gratuitous bailee,” liable only on proof that the property was lost as a result of “gross negligence.”

In or about 1987, the criminal prosecution ended and Aeroplating was entitled to the return of its property. However, Aeroplating did not request its return until 2007. In light of these circumstances, and the absence of any other evidence to suggest the manner in which the property was lost or destroyed, no rational fact finder could conclude that the division was grossly negligent in failing to preserve this property during the decades Aeroplating showed no interest in its return.

— By Debra McLoughlin

For appellants — Stuart J. Lieberman (Lieberman & Blecher; Lieberman and Mara Epstein on the brief). For respondent — Andrew D. Reese, Deputy Attorney General (Paula T. Dow, Attorney General; Lewis A. Scheindlin, Assistant Attorney General, of counsel).