Smith v. Farber

Argued December 2, 1997 Plaintiffs appeal from the dismissal of their complaint filed against defendants Arthur I. Farber, an attorney, Peter Vallas Associates (""Vallas""), professional mechanical engineers, and Harold Yelner, its employee. 1 Defendants had been retained by Theresa Smith (""plaintiff"") following a 1987 single car automobile accident in which she allegedly suffered serious injuries including partial paralysis. Plaintiffs allege that in 1988, as a result of Yelner's report that the accident was caused by ""normal wear and tear of the car,"" not a defect or improper repairs, Farber advised them that they no longer had to ""stor[e]"" the car, ""and to scrap it"" and recommended against commencing a legal action. After retaining new counsel and an engineer who reviewed pictures taken by Vallas, plaintiffs sued Toyota related entities and Sears Roebuck & Co. (""Sears"") in 1989. The action was based on products liability and negligent repair and maintenance. 2 The case was settled except as to Sears, but the parties do not tell us when and supply no relevant papers. 3 The complaint was subsequently dismissed as against Sears in July 1992. Plaintiffs appealed that dismissal, and while that appeal was pending this suit was filed in January 1993. Plaintiffs alleged in this case that the dismissal was a consequence of the ""negligent spoliation"" of the subject 1982 Toyota Tercel by the defendants. Plaintiffs asserted that the original engineering report was the result of ""negligent examination"" of the car and that defendants were negligent in not advising them to retain the car in its damaged condition. Plaintiffs claimed that their first action was adversely affected by the legal advice they had earlier received from Farber which affected both the settlement value of their claims against Toyota and their ability to proceed against Sears.