Bass-Davis v. Davis
122 Nev. 442, 122 Nev. Adv. Rep. 39, 134 P.3d 103 (2006)
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Rule of Law:
When relevant evidence is negligently lost or destroyed, the affected party is entitled to a jury instruction for a permissive adverse inference that the evidence would have been unfavorable. A rebuttable presumption that the evidence was adverse applies only when the evidence was willfully suppressed with the intent to harm the opposing party.
Facts:
- On January 11, 1999, Kimberly Bass-Davis slipped and fell on a wet floor inside a 7-Eleven convenience store operated by franchisees Kathi and Christopher Davis.
- Bass-Davis claimed a store employee had mopped the floor but failed to post warning signs.
- Within one week of the fall, Bass-Davis's sister contacted the franchisees and requested copies of the store's incident report and the surveillance videotape from the day of the fall.
- The franchisees' defense was that it was normal practice for their employees to post warning signs when mopping.
- The surveillance videotape would have shown the front of the store, where it was policy to place a warning sign, though it might not have shown the exact location of the fall.
- Following corporate policy, the store manager mailed the videotape to the franchisor, Southland.
- Southland received the videotape and forwarded it to its insurer.
- The insurer subsequently lost the videotape.
Procedural Posture:
- Kimberly Bass-Davis filed a complaint against franchisees Kathi and Christopher Davis in a Nevada district court (the trial court).
- At trial, the district court refused Bass-Davis’s proffered jury instruction on the permissive adverse inference for lost evidence.
- The jury returned a verdict in favor of the franchisees.
- The district court entered a judgment on the verdict.
- Bass-Davis filed a motion for a new trial, which the district court denied.
- Bass-Davis (as appellant) appealed the district court's judgment and order denying a new trial to the Supreme Court of Nevada.
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Issue:
Does the negligent loss of relevant evidence, as opposed to willful suppression, entitle the affected party to a jury instruction permitting an adverse inference that the lost evidence would have been unfavorable?
Opinions:
Majority - Gibbons, J.
Yes, the negligent loss of relevant evidence entitles the affected party to a jury instruction permitting an adverse inference that the lost evidence would have been unfavorable. The court distinguishes between a permissive inference for negligent spoliation and a rebuttable presumption for willful suppression. A rebuttable presumption under NRS 47.250(3) applies only when evidence is willfully suppressed, which requires a showing that the evidence was destroyed with the 'intent to harm' another party. A permissive adverse inference is appropriate for negligently lost or destroyed evidence, as the risk that the evidence would have been detrimental should fall on the party responsible for its loss. The duty to preserve evidence arises once a party is on notice of a potential claim, which occurred here when Bass-Davis's sister requested the videotape. The negligence of the franchisor and its insurer is imputed to the franchisees, as they were acting as the franchisees' agents. The court overrules the portion of Reingold v. Wet ’n Wild that equated routine records destruction with willful suppression. The court also held that the trial court committed reversible error by admitting collateral source evidence, which is per se prohibited.
Concurring - Maupin, J.
Agrees with the result and the majority's clarification of the distinction between presumptions for intentional destruction and inferences for non-intentional destruction of evidence. The concurrence notes that the court properly retreated from its previous misapplication of spoliation presumptions in Reingold. Justice Maupin writes separately to state that this case does not address other questionable precedents concerning an absolute duty to preserve evidence or whether an adverse inference can substitute for substantive proof, issues that must await a future case.
Analysis:
This decision establishes a significant clarification in Nevada's evidence spoliation doctrine by creating a two-tiered framework for sanctions. It distinguishes between a permissive inference for negligent loss and a rebuttable presumption for willful destruction, providing lower courts with a clearer analytical structure. By defining 'willful suppression' as requiring an 'intent to harm,' the court raises the bar for obtaining the more severe sanction of a rebuttable presumption. This change protects parties who lose evidence through carelessness or routine policy from the harshest penalty, while still providing a remedy for the aggrieved party by allowing the jury to infer the missing evidence was unfavorable.
