NOT FOR PUBLICATION

PER CURIAM.

Plaintiff, Orren E. Smith III, appeals from the Law Division's order of April 3, 2012, that granted summary judgment to defendant Monmouth Regional Board of Education (the Board). The motion judge concluded that plaintiff failed to file a timely notice of claim pursuant to the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, and failed to file suit within the applicable statute of limitations. We agree, and, therefore, affirm.

The facts and procedural history are essentially undisputed. Plaintiff was employed by the Board as a community aide when, on February 21, 2006, he injured himself while using a fitness machine in the weight room at Monmouth Regional High School (the School). By letter dated March 8, 2006, plaintiff's former counsel, Edward J. Ahearn, sent a letter to the Board advising of the accident and requesting that the Board retain the machine for "review and inspection... in furtherance of a potential Product Liability Claim against the manufacturer...." The Board's counsel referred the matter to its insurance carrier.

In a letter to the Board dated May 10, 2006, the carrier's claims specialist advised that she had spoken with Ahearn, and he would be contacting the athletic director at the School to arrange for an inspection of the equipment. In a certification in support of the Board's summary judgment motion, the athletic director stated that Ahearn never contacted him.1

Documents in the record imply that the machine was returned to its distributor, Fitness Lifestyles, Inc. (Fitness), as a "trade-in," to be credited against the price of other equipment to be purchased by the Board. The invoice from Fitness to the Board quoting prices for the other equipment is dated January 5, 2007.

On March 19, 2007, Ahearn went to the School and left a handwritten note for Maria Parry, the Board's Business Administrator. In the note, Ahearn asked if Parry had "any info about this particular machine" because he "under[stood] it was sent back." In her certification in support of the Board's summary judgment motion, Parry stated that, after receiving the note, she called Ahearn and asked him to submit a written request. Parry also faxed him a copy of a photograph, previously taken, that showed the model number and serial number of the machine.

On February 21, 2008, plaintiff filed a products liability action against defendants Paramount Fitness Corporation (Paramount), the manufacturer of the machine, and Fitness, its local distributor. Both defendants filed answers. Paramount's answer, filed on April 8, 2008, specifically asserted as an affirmative defense that the complaint must be dismissed "due to the destruction and/or loss of critical evidence." Paramount and Fitness moved for summary judgment in July 2009, but, apparently the motions were delayed while discovery was extended at plaintiff's request.

Although there was no documented contact between Ahearn and the Board after March 2007, on August 5, 2009, Ahearn went to Parry's office and asked if the Board still had the machine. Parry "told [Ahearn] the machine had been removed from the building" and "reminded [Ahearn] that [she] had already advised him of this...."2

Paramount and Fitness renewed their summary judgment motions. Both apparently argued that the complaint should be dismissed on spoliation grounds, i.e., their defenses were prejudiced because they could not inspect the machine since plaintiff failed to preserve it.3 Paramount and Fitness were granted summary judgment by orders dated January 8, 2010.4

On April 6, 2010, plaintiff served a notice of claim on the Board pursuant to the TCA. See N.J.S.A. 59:8-8. On August 23, 2011, plaintiff filed this complaint, alleging the Board "carelessly, recklessly and negligently dispose[d] of... necessary evidence and as a direct and proximate result... plaintiff... suffered pecuniary losses in his inability to sustain his [p]roduct [l]iability [c]laim."

The Board moved for summary judgment, arguing that plaintiff's "spoliation claim was known or should have been known... as early as March 19[], 2007." It contended that plaintiff failed to provide timely notice under the TCA, and, further, that plaintiff failed to file his complaint within the two-year statute of limitations. See N.J.S.A. 2A:14-2.5 Plaintiff argued that the spoliation cause of action required "disruption of [his product liability claim]... and damages proximately caused by the spoliation." He contended that those elements did not exist until summary judgment was granted to Paramount and Fitness. Plaintiff further argued that, in March 2007, he "didn't actually know what happened to the machine." He claimed that, in the underlying products case, Fitness denied having the machine, despite the Board's claim that it was returned in January 2007.

After reserving decision, on April 3, 2012, Judge David F. Bauman placed his oral decision on the record granting the Board summary judgment. He noted that "[o]n March 19, 2007, plaintiff's attorney acknowledged by letter that he was aware... the machine had been sent back... and that the defendant had not... preserved the machine." Judge Bauman continued:

The judge reasoned that "when plaintiff filed his [product liability] complaint in 2008, [he] knew or certainly should have known that the product had been removed and should have known that his complaint... was susceptible to dismissal given the absence of the offending product."

Judge Bauman also noted that Paramount put plaintiff on notice when it answered the complaint and "asserted... a separate defense that plaintiff's complaint must be dismissed because of disposal of necessary evidence." The judge concluded that plaintiff's cause of action accrued in March 2007, and, therefore, must be dismissed because "plaintiff failed to timely file a notice of tort claim with defendant," and the "complaint... was filed outside the statute of limitations."

Judge Bauman entered an order reflecting this decision on April 3, 2012. This appeal followed.

Before us, plaintiff contends that his claim for negligence did not accrue, for purposes of the TCA or the applicable statute of limitations, until January 8, 2010, when Paramount and Fitness were granted summary judgment. Alternatively, without proposing a different accrual date, plaintiff argues that equity requires application of the discovery rule to toll the running of the TCA notice provisions and the statute of limitations based upon the Board's actions "with respect to the location of the equipment."

We conduct our review of a grant of summary judgment de novo applying the same standards that governed the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). Initially, we determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J.Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). To the extent factual disputes exist, we accord the non-moving party the benefit of all favorable evidence and inferences in the motion record. Henry, supra, 204 N.J. at 329; see also R. 4:46-2(c). We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 231. In such review, "`[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Under the TCA, a claimant must present his claim "not later than the ninetieth day after accrual of the cause of action." N.J.S.A. 59:8-8(a). "In determining the timeliness of a... notice of claim, the trial court's inquiry thus begins with the date upon which the claim accrues." McDade v. Siazon, 208 N.J. 463, 475 (2011) (citing Beauchamp v. Amedio, 164 N.J. 111, 118-19 (2000)). "The discovery rule is part and parcel of such an inquiry because it can toll the date of accrual." Beauchamp, supra, 164 N.J. at 118. "The discovery rule tolls the commencement of the ninety-day notice period only `[u]ntil the existence of an injury (or, knowledge of the fact that a third party has caused it) is ascertained.'" McDade, supra, 208 N.J. at 475 (quoting Beauchamp, supra, 164 N.J. at 122). "The test for the application of the discovery rule is `whether the facts presented would alert a reasonable person, exercising ordinary diligence, that he or she was injured due to the fault of another.'" Ibid. (quoting Caravaggio v. D'Agostini, 166 N.J. 237, 240 (2001)).

Regarding compliance with the statute of limitations, we apply the same analysis to discern the date of accrual of plaintiff's claim and the possible equitable tolling consequences of the discovery rule. See, e.g., Viviano v. CBS, Inc., 101 N.J. 538, 546 (1986) ("Ordinarily, a cause of action accrues when the plaintiff knows of his or her injuries and of facts sufficient to attribute those injuries to the fault of another." (citations omitted)); see also Henry, supra, 204 N.J. at 333 (recognizing the discovery rule as "part of our jurisprudence in applying a statute of limitations").

Our Supreme Court has not recognized a separate tort for negligent spoliation of evidence. See Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 122-23 n.6 (2008) (noting that the Court had "not in the past recognized," and "d[id] not now recognize, any separate tort for negligent spoliation"). In Gilleski v. Community Medical Center, 336 N.J.Super. 646, 648 (App. Div. 2001), we analyzed the elements of a claim, factually similar to the one presented here, utilizing traditional concepts of negligence.

In Gilleski, the alleged spoliator was the defendant-medical center, owner of a chair that collapsed causing the plaintiff injury. The plaintiff alleged that the "defendant negligently disposed of the chair which was critical evidence in a potential law suit against the chair manufacturer." Ibid. We noted that "[n]o New Jersey appellate court has recognized the tort of negligent spoliation of evidence[,]" and concluded "that negligent spoliation need not be recognized as a separate tort, since such a claim may be resolved by applying traditional negligence principles." Ibid. We added: "To state a cause of action for negligence, a plaintiff must plead: `(1) a duty of care owed by defendant to plaintiff; (2) a breach of that duty by defendant; and (3) an injury to plaintiff proximately caused by defendant's breach.'" Id. at 652 (quoting Endre v. Arnold, 300 N.J.Super. 136, 142 (App. Div. 1997)). We concluded that under the circumstances presented, the defendant owed no duty to the plaintiff to preserve the chair. Id. at 657.

In this case, assuming arguendo that the Board breached a duty to preserve the exercise machine, plaintiff contends his negligence action did not "accrue" until he suffered proximately caused damages, i.e., until his product liability complaint was dismissed with prejudice. We disagree.

Ahearn knew as early as March 2007 that, if the Board owed his client a duty to retain the machine, that duty had been breached. His handwritten note to Parry indicated his knowledge that the machine had been "sent back." Moreover, at that point in time, Ahearn knew, or reasonably should have known, that his client's product liability claim was seriously, most likely fatally, compromised.

Putting aside Paramount's and Fitness's successful motions for summary judgment, to succeed in his product liability complaint, plaintiff needed to establish that "the product was defective, that the defect existed when the product left the manufacturer's control, and that the defect proximately caused injuries to the plaintiff, a reasonably foreseeable or intended user." Myrlak v. Port Auth. of N.Y. and N.J., 157 N.J. 84, 97 (1999). Frequently, though not necessarily, the proof of a product defect is established by expert testimony. See e.g., Lauder v. Teaneck Volunteer Ambulance Corps, 368 N.J.Super. 320, 331 (App. Div. 2004) ("To prove the existence of a defect, a plaintiff may rely on the testimony of an expert who has examined the product or offers an opinion on the product's design."); cf. Myrlak, supra, 157 N.J. at 104-05 (recognizing plaintiff's ability to prove a product defect through circumstantial evidence).

As of March 2007, Ahearn was unable to locate the exercise machine in question and never had any expert examine the machine. Presented with those facts, "a reasonable person, exercising ordinary diligence" should have known that plaintiff "was injured due to the fault of another," i.e., his chances of success in the underlying product liability suit had been compromised. McDade, supra, 208 N.J. at 475. In short, plaintiff's negligence claim against the Board accrued no later than March 2007, requiring notice to the Board within ninety days thereafter and filing of the complaint within two years thereafter. Since plaintiff failed to do so, the motion judge properly granted the Board summary judgment.

Affirmed.