When a party loses important evidence, Las Vegas courts are tasked with determining what penalties should be assigned to the negligent party. A common example typically goes as follows: You slip and fall in a local Las Vegas store, sustaining serious injuries. The store is equipped with video cameras and you believe the video footage will show what happened in the fall. Immediately after your fall, you hire a Las Vegas personal injury attorney, who puts the store on notice to preserve all of the evidence of your fall, including all videos.
The store refuses to take any responsibility for your injuries, so your personal injury attorney files a lawsuit on your behalf. During the exchange of documents and evidence, the store suddenly says that they no longer have the video.
In the legal world, this is called “spoliation of evidence”. In this example, your personal injury attorney will ask the Court let the jury know about this missing evidence. The Court may direct the jury to assume that had the evidence been saved, it would have been favorable to the injured party. The logic behind this stems from the premise that if the evidence was beneficial to the negligent party, they would have actually kept the favorable evidence.
In a recent case from our Court of Appeals, the court was tasked to determine the effect of the hospital and cleaning company’s failure to keep important documents. Waters-Maria v. Valley Health Systems, LLC, No. 69455 (Nev. 2017).
In the Valley Health Systems case, a person slipped and fell on a wet floor in a hospital restroom. When neither the hospital nor the cleaning company took responsibility for the injured party’s fall, she filed a lawsuit. During the court process, the injured person’s lawyer determined that the cleaning company didn’t keep any of their cleaning records. The lawyer argued that the cleaning records would have showed negligence on the part of the cleaning company.
Once trial was done and case was to be submitted to the jury for their decision, the injured party’s attorney asked for an adverse inference instruction for the discarded cleaning assignment documents. The trial court refused to give the jury the proposed instruction. In the end, the jury found in favor of the hospital and cleaning company.
In discussing its decision, the appeals court cited to the following relevant case and statute:
- NRS 47.250(3) creates a rebuttable presumption that evidence intentionally destroyed to harm another party would be adverse if produced. Bass-Davis v. Davis, 122 Nev. 442, 448-450, 134 P.3d 103, 106-08 (2006). However, if "evidence is negligently lost or destroyed, without the intent to harm another party[,] [i]nstead, an inference should be permitted." Id.
What does this mean for Las Vegas personal injury cases? Your personal injury attorney should bring up missing documents to the court’s attention as soon as possible.
Next time, we will talk about cross examining an injured person on their treatment at the time of trial.