The case of the missing evidence

Shifting the burden of proof in premises-liability cases

2015 March

It’s amazing how many Americans are injured in premises-liability incidents each year. Perhaps the likelihood of such accidents has increased as life gets busier and we are in more of a hurry to get from one place to another. Or perhaps it’s because property owners are becoming less and less vigilant about keeping their premises safe from hazardous conditions. Regardless of the underlying reason, plaintiffs’ attorneys are also witnessing a rise in premises-liability claims.

Premises-liability claims are highly fact-specific and challenging to prove. Plaintiff’s attorneys often face many evidentiary challenges due to insufficient evidence or lack of access to evidence controlled by the defendant property owner. For instance, you may not have access to the premises or historical condition after your client got injured. Neither you nor your client may be able to obtain information, or, you may have a difficult time obtaining information about the existing conditions, because that evidence may be within the exclusive control of adverse parties who do not want you to have such information. You also may not have access to the names of percipient witnesses to the accident.

The general rule in premises-liability cases is that he who asserts must prove, i.e., the burden rests with the plaintiff. However, in certain circumstances, courts have carved exceptions to that general rule, shifting the burden to a defendant, who by misusing their superior control over pertinent evidence, has made it difficult or impossible for the plaintiff to prove his or her case.

Shifting the burden of proof

The general rule in premises cases is that the plaintiff bears the burden of proving to the trier of his or her claim. California Evidence Code section 500 states:

Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.

The language in this code section, “except as otherwise provided by law,” allows courts to allocate the burden of proof in a manner that is at variance with the general rule. (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 660-661). In other words, the trial court has the discretion to shift the burden of proof on certain issues depending on various factors, such as:

• The knowledge of the parties concerning the particular fact;

• The most desirable result in terms of public policy in the absence of proof of the particular facts; and

• The probability of the existence or nonexistence of the fact.

(Ibid.)

Once the plaintiff “produces evidence sufficient to make its prima facie case, the burden of producing evidence shifts to the other party to refute the prima facie case.” (Sargent Fletcher Inc. v. Able Corp., (2003) 110 Cal.App.4th 1658, 1667-1668.) Such a shift in the burden of proof rests on the policy judgment that there is substantial probability that the defendant has wrongfully acted which makes it practically impossible for the plaintiff to prove his or her case.

Do not assume that courts will shift the burden merely because defendant had greater access to information. (Sargent Fletcher Inc., supra, 110 Cal.App.4th at 1671.) For example, in employment cases, where plaintiff must prove an employer’s discriminatory intent, the burden of proof remains at all times with plaintiff. In such cases, plaintiff must establish a prima facie case of discrimination, after which the employer defendant must offer a legitimate reason for its actions. However, “the burden of persuasion never shifts to the employer; it remains all times with the employee.” (Id. at 1672.)

Another example where the burden will not shift is in application of the res ipsa loquitur rule. That rule exists to assist plaintiffs bringing tort claims against a defendant, even when plaintiffs lack specific proof that their injuries were caused by defendant’s negligence. For example, res ipsa loquitur provides a presumption of negligence in a case involving a plaintiff who awoke with his arm paralyzed after appendectomy during which he was unconscious due to anesthesia. (See Ybarra v. Spangard (1944) 25 Cal.2d 486, 489.) Yet, despite this presumption, the burden of proof remains with the plaintiff throughout the trial. (See Kilgore v. Brown (1928) 90 Cal.App. 555, 558.)

However, the following are situations in which plaintiffs have successfully shifted the burden of proof to defendants.

Multiple defendants, single cause

Some premises-liability cases involve multiple negligent parties who cause the plaintiff to suffer one single injury. If you represent a plaintiff in such a case, it may be difficult or nearly impossible for you to prove which defendant was responsible for your client’s injuries. For illustration, consider the following scenario: inside of a store that is undergoing construction, a shopper is injured when a negligently installed sign gives way, causing her to fall to the ground. Two different companies were installing the sign in the same negligent manner, but both have denied responsibility. How can you prove one party is more negligent than the other?

In Summers v. Tice (1948) 33 Cal.2d 80, 86-87, the California Supreme Court answered this question. There, plaintiff sued two defendants with whom he went hunting, when both defendants shot at the same bird (in plaintiff’s direction) and struck plaintiff. Plaintiff was unable to prove from which defendant’s shotgun the injuring bullets came. The Summers court avoided this confusion by a forthright recognition that when one of two negligent defendants injures the plaintiff and it is impossible for the plaintiff to prove which one, it is reasonable to shift the burden to each defendant to prove that it was not his negligence that caused plaintiff’s injury. Thus, the Court shifted the burden of proof to the two defendants to absolve themselves of the bullet that injured plaintiff.

Applying these principles, in order for you to request the court for a burden-shifting instruction in a multiple-defendant scenario, you need to provide evidence that:

• Both defendants were negligent;

• No other party could have caused the negligence;

• Your party was innocent of any negligence;

• The defendants had superior knowledge as to which of them caused the harm; and

• It would be unfair to your client to absolve both defendants of any liability.

Defendant’s negligence

Courts have shifted the burden in premises-liability cases where the defendant’s negligence makes proving causation a practical impossibility. In such situations, courts have been willing to carve a narrow exception to the general rule governing burdens of proof, because of the underlying policy determination that allocation of proof is more appropriately borne by the party with a greater access to the information.

One of the most well-known California cases that shifted the burden under this exact scenario is Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756. There, the two plaintiffs drowned at a motel swimming pool. The owner had failed to comply with the major safety measures required by law for pools available to the public, including providing lifeguard services or posting signs that clearly indicate that such service is not provided.

The Court held that since the plaintiffs proved that the defendants failed to provide lifeguard services, the “burden shifted to them to prove that their violation was not a proximate cause of the deaths and in the absence of such proof, defendants’ causation of such death is established as a matter of law.”

Haft should be used by plaintiff’s counsel in premises-liability cases where the defendant’s negligence resulted in an “evidentiary void.” For instance, a property owner’s negligent maintenance of a property’s sewer and piping system could result in a flood that both injures individuals and destroys evidence of the cause of the flood. The defendant’s failure to take precautionary measures to avoid or limit the flood, such as fixing minor leaks or draining issues, could be used to shift the burden to defendant that such omissions actually caused the plaintiff’s injuries.

Courts carefully limit Haft’s applicability; the court will only allow this kind of burden-shifting if the defendant’s negligence made it a practical impossibility to prove causation and if your client is not responsible in any manner for the loss of the evidence.

Spoliation of evidence

Another common problem in premises-liability claims involves the spoliation of evidence, such as surveillance video depicting how the plaintiff was injured on the defendant’s premises. Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence, in pending or future litigation. (Willard v. Caterpillar, Inc. (1995) 40 Cal.App.4th 892, 907.)

Consider the following facts in Penn v. Prestige Stations, Inc. (2000) 83 Cal.App.4th 336. There, the plaintiff alleged that the defendant convenience store negligently permitted a dangerously wet condition on the store floor to exist, which caused her injuries. Discovery disclosed that the defendant effectively erased any evidence of the fall or the conditions of the store at the time of the fall captured on surveillance video. Although Penn involved the issue of whether there is a private tort claim for spoliation of evidence (there is not), and did not involve burden-shifting, it is nevertheless an example of the kind of destruction of evidence problem plaintiff’s counsel might face in proving his or her client’s premises-liability case.

In Galanek v. Wismar (1999) 68 Cal.App.4th 1417, the court held that the destruction of evidence (such as surveillance video as in Penn, above), could warrant shifting the burden to defendant to disprove facts affected by the loss of the pertinent evidence. Galanek was a legal-malpractice lawsuit. There, defendant failed to preserve a car that was crucial evidence in an underlying products liability case against the car manufacturer. The trial court granted defendant’s nonsuit motion in the legal malpractice lawsuit because plaintiff could not prove defendant’s failure to preserve her car as evidence led to the entry of summary judgment for the car maker in the underlying lawsuit. The appellate court reversed, holding that the defendant lawyer’s spoliation of the critical piece of evidence, namely the car, made it impossible for the plaintiff to prove she would have prevailed on the causation issue in the underlying case.

The Galanek court’s concern that the defendant could not benefit from his own negligent loss of evidence, equally applies to premises liability cases, especially with regard to video surveillance. In the age of electronic communication, the preservation of documents is important. California’s burden-shifting approach requires the accused spoliator to disprove any prejudice.

If the burden-shifting approach applies to your premises-liability case, you should seek a shift in burden of proof by way of jury instruction. To support your request, you should present evidence of the following:

• Defendant had superior control over evidence;• Defendant lost evidence;

• Your client does not otherwise have knowledge of the facts contained in the lost evidence; and

• It would not serve public policy for the defendant to benefit from the loss of evidence that did not occur through any fault of your client.

If the trial court refuses to provide a burden-shifting instruction, you should still tell the jury that they may infer negative implications from the defendant’s loss of evidence pursuant to California Evidence Code section 413. That section provides: “In determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the party’s failure to explain or to deny by his testimony such evidence or facts in the case against him, or his willful suppression of evidence relating thereto, if such be the case.”

Lack of proper record maintenance

Another common, but challenging problem for plaintiffs attempting to prove liability in premises-liability cases, stems from the property owner’s failure to keep clear and complete maintenance records of the premises. If your client was injured due to a dangerous or hazardous condition in a grocery store, you will need to obtain maintenance records to establish whether there was an adequate inspection and upkeep system of the facility. But what if these records do not provide any details showing the type of inspection or up-keeping performed and the time it was performed and who performed it? What if the witnesses with knowledge of the inspections are no longer available?

In cases where the defendant’s records are poor or inadequate, making it difficult for the plaintiff to prove an element in his premises liability claim, the court will shift the burden of proof to the defendant. One case that strongly upholds this burden-shift is Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157. In Amaral, the employee plaintiffs sued their employer for violations of a living wage ordinance. The defendant admitted that it had no records or other data establishing which employees performed the type of work implicating the rights under the ordinance. Instead of barring the plaintiffs’ claim for lack of proof, the trial court shifted the burden of proof to the defendant to prove which class members did no work and thus were not entitled to be compensated under the ordinance. The court’s reasoning for its decision was that the “plaintiffs’ employer, Cintas is in the best position to know” this information.

In other words, the Amaral court effectively demonstrated in its decision that because an employer has a statutory duty to maintain proper records of wages, hours and work conditions and is in the best position to know salient facts about the nature and amount of the work performed, it is appropriate to shift the burden of proof to the employer. Similarly, California courts have long approved of burden-shifting outside the wage-and-hour context when the parties have unequal access to evidence necessary to prove a disputed issue.

You can clearly apply the Amaral decision to your premises-liability cases by requesting the court to provide instructions to shift the burden of proof to the defendant. In doing so, you will need to present evidence of the following to the court:

• Defendant had a legal obligation to maintain the property in a reasonably safe condition;

• Defendant had control over evidence of the maintenance of the property;

• Defendant could have more properly documented the maintenance of the premises;

• Your client did not have any other access to the information contained in the maintenance records; and

• Defendant would unfairly benefit from the lack of proper record keeping of maintenance of the premises.

Conclusion

If you lack necessary evidence to prove your premises case because the defendant’s negligence resulted in loss of evidence, defendant’s poor record keeping, or multiple negligent parties involved in the finger pointing, do not assume your case will be dismissed for lack of evidence.

As discussed, there is plenty of room to argue novel burden-shifting application on a case-by-case basis. By highlighting the defendant properly owner’s superior knowledge, amongst other factors, you can require the defendant to either preserve evidence or risk the consequences of presumption.