What is Spoliation of Evidence and How Does it Affect My Las Vegas Personal Injury Case?

Today’s blog discusses what is ‘spoliation of evidence’ and how can it affect your Las Vegas personal injury case. Spoliation of evidence, is when a person or company losses evidence in a personal injury case. The most common example of spoliation of evidence, is when a company losses the videotape of a person’s fall. 

Nevada law provides that when a potential for a personal injury claim exists, a party ‘is under a duty to preserve evidence which it knows or reasonably should know is relevant to the action.’ Banks v. Sunrise Hospital, 102 P.3d 52, 58 (Nev. 2004) (quoting Fire Ins. Exchange v. Zenith Radio Corp., 103 Nev. 648, 651, 747 P.2d 911, 914 (1987).  Even if a lawsuit has not yet been filed and if there is only “a potential for litigation [lawsuit],” the duty to preserve evidence arises. 


Nevada law holds that should the at-fault party be unable to produce the videotape, then the injured party is entitled to a ‘loss of evidence’ jury instruction. The jury is instructed that the loss of videotape, creates an inference that the evidence was harmful to the at-fault party, otherwise they would have kept the evidence. Bass Davis v. Davis, 122 Nev. 442, 134 P.3d 103, at 107, (2006), and Reingold v. Wet’nWild, Nevada, Inc., 113 Nev. 967, 944 P.2d 800 (1997). This rule applies even if the evidence is lost or negligently destroyed.  The Bass-Davis court held:

[The] sanction [of an adverse inference] should be available even for the negligent destruction of documents if that is necessary to further the remedial purpose of the inference. It makes little difference to the party victimized by the destruction of evidence whether that act was done willfully or negligently. The adverse inference provides the necessary mechanism for restoring the evidentiary balance. The inference is adverse to the destroyer not because of any finding of moral culpability, but because the risk that the evidence would have been detrimental rather than favorable should fall on the party responsible for its loss. (Citing Turner v. Hudson Transit Lines, 142 F.R.D. 68, 75 (S.D.N.Y.1991); see also Residential Funding Corp. v. DeGeorge Financial, 306 F.3d 99, 108 (2d Cir.2002). Id. at 107.

In Bass-Davis, a customer slipped on a wet floor at a 7-Eleven. The customer claimed that a 7-Eleven employee had mopped the floor but failed to post warning signs. During discovery, the injured party’s personal injury attorney found out that the 7-Eleven franchisee could not locate the surveillance videotape documenting Bass-Davis’ fall. The jury was to be instructed that the videotape would have been detrimental to 7-11.

Next time, we will discuss comparative negligence in Las Vegas personal injury cases.