As Seen on Advocate (Journal of Consumer Attorneys Associatetion for Southern California)


The case of the missing evidence: Shifting the burden of proof in premises liability cases

The burden of proof may shift if defendant misuses their superior control over evidence

It’s amazing how many Americans are injured in premises liability incidents each year. Perhaps the likelihood of such accidents has grown 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 problems due to insufficient evidence or lack of access to evidence controlled by the defendant property owner. You may not have access to the premises or historical condition after your client got injured. Neither you nor client may be able to obtain information or may have a difficult time obtaining information about the existing conditions, as it may be within the control of adverse parties. You may also not have access to the names of witnesses to the scene of the accident.

The general rule in premises liability case is that he who asserts must prove, i.e. the burden rests with the plaintiff. While the plaintiff generally has the burden of proof in, this article suggests ways of shifting the burden to a defendant who has made it difficult or impossible for you to prove your case by misusing their superior control over pertinent evidence.

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. ()

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.) 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.

Multiple defendants, single cause

In some premises liability cases, there may be multiple negligent parties who cause your client to suffer one single injury. In such cases, it may be difficult or nearly impossible for you to prove which defendant was responsible for your client’s injuries. Consider the scenario where a store is doing construction and a shopper was injured when a negligently installed sign gives way, causing her to fall to the ground. Two different companies were installing the sing 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 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 the plaintiff’s injury. In this case, two defendants fired shotgun during a hunting trip that struck the plaintiff. The plaintiff could not prove which defendant’s gun fired the shot that struck him. The court shifted the burden of proof to the two defendants to absolve themselves.

In order for you to request the court for a burden-shifting instruction in a premises liability claim, 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

When the defendant’s negligence makes proving causation in a premises liability case a practical impossibility, the burden may be shifted to the defendant. The essential principle underlying this narrow exception to the usual rule of allocation of proof in a premises case is more appropriately borne by the party with a greater access to the information.

One of the most well-known cases of burden shifting under California law that deals with such a situation 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. (Id. At 762-63.)

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.”

The case of Haft should be kept in 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 by fixing minor leaks or draining issues could be used to shift the burden to defendant that such omissions were the cause of the plaintiff’s injuries.

If you plan to use burden shifting under Haft, you should know that the court will only allow this if the defendant’s negligence makes 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, namely 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 the Penn v. Prestige Stations, Inc. (2000) 83, Cal.App.4th 336 case where 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. This case effectively memorializes a destruction of evidence problem for plaintiff’s counsel to prove its case.

In Galanek v. Wismar (1999) 68 Cal.App.4th 1417, the court held that the destruction of evidence, or surveillance video as in the Penn case, could warrant shifting the burden to defendant to disprove facts affected by the loss of the pertinent evidence. In Galanek, a legal malpractice plaintiff was nonsuited because the trial court found she could not meet the burden of proving that the defendant’s failure to preserve her car as evidence in the underlying products liability action against the car’s manufacturer led to the entry of summary judgment for the car maker. 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 that 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.

Lack of Proper Record Maintenance

Another potential proof problem in premises liability cases is 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 the case of 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. (Id. At 1187-89.)

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.


Premises liability cases are fact-specific and often hard to prove. Plaintiff’s attorneys face many evidentiary problems in proving their premises liability cases mainly because they either don’t have control or have limited control over pertinent evidence. However, if you lack necessary evidence to prove your premises case because the defendant’s negligence resulted in loss of evidence, you do not have sufficient evidence due to the defendant’s poor record keeping, or you are unable to prove negligence because there are multiple negligent parties involved in the finger pointing, does not mean that your case will be dismissed for lack of evidence.

As discussed in this article, 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’s to either preserve evidence or risk the consequences of presumption.