Slip and Fall in Nevada? You Better Keep Your Shoes.

After getting off of work from her graveyard shift as a cocktail waitress in a Las Vegas casino, Nancy went to her local Las Vegas supermarket to buy a Mother’s Day card for her dear mother Linda. The store was empty, except for a skeleton crew of employees who were cleaning the floors storewide. As she rounded a corner near the greeting card aisle, Nancy stepped in a puddle of water that she alleged was not mopped by the cleaning crew. Nancy fell to the ground and landed very hard on her back. Nancy suffered severe injuries to her back, rotator cuff, and hip.

Nancy sued the supermarket chain and, by all accounts, had a solid case that was about to go to trial. During the last stage of discovery, the defense attorney representing the supermarket asked to inspect the shoes that Nancy was wearing at the time. Nancy never threw the shoes away and produced her sandals to the attorney. Nancy eventually received a favorable settlement on the eve of trial. However, had Nancy lost or destroyed her shoes, a jury would have been instructed that, had Nancy retained the shoes, the evidence would not have been favorable to her case. Nancy would have had a much more difficult time obtaining a favorable verdict or settlement. Why? Because Nevada law provides for very serious consequences when a party to a lawsuit does not preserve evidence.

The term spoliation has been used to label both the physical act of destruction or the loss of evidence and the common law doctrine constituting the remedy for such a loss. Early cases dealing with the issue of evidence destruction adopted the maxim omnia praesumuntur contra spoliatorem that is: “all things are presumed against the wrongdoer.” Accordingly, a rule has developed which permits, at a minimum, the finder of fact to draw a negative inference against any party causing the loss or destruction of evidence. Traditionally, this remedy has taken the form of an instruction that informs the jury that it is to draw certain negative inferences from the destruction of the evidence.

More recently, however, courts have found that simple jury instructions do not adequately remedy the problem. A good example of this may be found the case of Jones v. Goodyear Tire & Rubber Company, an Illinois case where a directed verdict was entered against Goodyear after they lost a tire rim that was the subject of a product liability action. On appeal, Goodyear argued that a lesser sanction, such as an inference instruction, should have been imposed. The Seventh Circuit Court of Appeals disagreed, finding that entry of the directed verdict was not an abuse of discretion given Goodyear’s negligence. The court added that while sanctions can be employed for a wide array of purposes, they cannot replace lost evidence.

Nevada courts have expanded the application of this principle by imposing sanctions in cases where the destruction of evidence took place prior to the filing a suit. In a 1987 case involving Fire Insurance Exchange and the Zenith Radio Corporation, the Nevada Supreme Court upheld the dismissal of an insurer’s subrogation case where potentially relevant evidence had been negligently disposed of prior to trial. In this case involving a house fire, the insurer hired an investigator to determine the origin of the fire and the investigator found that a television set started the fire. Thereafter, the insurer engaged contractors to remove the debris, including the television set, from the insured’s home. The court provided that “even where an action has not been commenced and there is only a potential for litigation, the litigant is under a duty to preserve evidence which it knows or reasonably should know is relevant to the action.” The court upheld the lower court’s decision to exclude the insurer’s expert witness. Numerous other Nevada cases, including personal injury cases, have had the same result.

The moral of the story is pretty clear: if you or someone you know is involved in a situation that might lead to litigation, you should document everything that you can and preserve all the evidence. Your case depends on it. In other words, keep your shoes or you might lose your pants.

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