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We previously highlighted the importance of preserving critical evidence and the Nevada Supreme Court case of Fire Insurance Exchange v. Zenith Radio Corp. 103 Nev. 648, 747 P.2d 911 (1987) HERE. The Nevada Supreme Court has addressed the issue of loss of important evidence in a number of other cases. Let’s discuss a few.
In the case of Stubli v. Big D Int’l Truckers, Inc. 107 Nev. 309, 810 P.2d 785 (1991), the owner of a big rig sued the manufacturer and repair shop for damages caused to his truck when earlier repairs failed. Prior to filing suit, the truck’s owner saved the specific parts but did not preserve the entire trailer. The Stubli court noted, “The plaintiffs are not free to destroy crucial evidence because a court order was not issued to preserve the evidence.” 107 Nev. at 313. The court found it significant that the loss of evidence was due wholly to actions taken by agents for the plaintiff prior to any involvement in the case by the defense. Like the Zenith case, the court would not allow one party to misappropriate crucial evidence and then reap the benefit by laying all the responsibility for an incident at the feet of the now-defenseless party. (For additional information regarding a cause of action for negligent maintenance of motor vehicles see HERE.)
Other cases in which the Nevada Supreme Court has upheld sanctions for spoliation of evidence include Nevada Power Co. v. Fluor, 108 Nev. 638, 837 P.2d 1354 (1992) (destruction of a cooling tower, ) and GNLV Corp. v. Service Control Corp., 111 Nev. 866, 900 P.2d 323 (1995). In the GNLV case, I was able to obtain a dismissal of my client, the linen service provider, because the hotel failed to preserve the bathmat on which the plaintiff slipped and fell. Reingold v. Wet ‘N Wild Nevada, Inc., 113 Nev. 967, 944 P.2d 800 (1997) (failure to preserve incident reports more than two weeks after the close of the summer season) and Bass-Davis v. Davis, 134 P.3d 103 (2006) (failure to preserve a surveillance tape) are two more recent Nevada Supreme Court cases that address the issue lost evidence.
There is a spectrum of consequences that can befall a party who has not preserved critical evidence. Those consequences may include an instruction to the jury that the lost evidence is presumed to be adverse to the party who lost the evidence, all the way to a dismissal of the case. The court will look at many factors in making a decision as to the most appropriate sanction.
As a practical matter, if the condition of a vehicle, or other piece of key evidence, is apt to be germane to the prosecution or defense of the case, it is prudent to seek advice on how best to ensure the security of the evidence or to make the evidence available for inspection by the target adversary. Feel free to call Carrie McCrea Hanlon at Mills & Associates for advice on whether evidence should be preserved or what consequences may be expected if key evidence has been lost. She can be reached at (702) 240-6060 X 107.
About Michael Mills
