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Business Litigation

Adverse Presumption Awarded for Breaching Duty to Preserve Evidence

Recently, in Sayre v. PNK (Lake Charles), LLC, 2015-859 (La. App. 3 Cir. 3/23/16), the Third Circuit recently reversed a trial court’s refusal to provide a jury charge which included instructions that a party’s failure to preserve evidence within their control would give rise to a presumption that said evidence would be adverse to their case.

Plaintiff in Sayre was a guest at the L’Auberge Hotel in Lake Charles when she tripped and fell due to a sticky residue on the floor in the hallway in front of a hotel café. Surveillance video depicts the plaintiff suddenly falling completely flat with her arms outstretched over her head and her right shoe flying down the hallway. Several witnesses quickly rushed to her side, including the restaurant hostess who ran across the hall to call security before returning to plaintiff’s aid—as required per hotel standard operating procedures. Shortly thereafter, the restaurant manager arrived on scene and, along with the hostess, inspected the floor where plaintiff fell. The footage then shows hotel security appearing and discussing the accident with witnesses.

While the video surveillance captures all of these events, it also reveals that several of the hotel’s standard operating procedures following an incident were not complied with as required. For example, the video does not depict hotel security taking photographs of the scene, investigating what caused the fall, or obtaining statements from witnesses on scene.

The injured guest ultimately filed a negligence suit against L’Auberge. During the course of litigation, the plaintiff was never provided any employee or witness statement, and per standard operating procedure, she was never given a copy of the hotel’s accident report. After being unable to discover these items, plaintiff filed an amended petition asserting that the hotel had failed to preserve evidence, despite having a system designed to do so, and consequently impeded the injured guest’s ability to prove her case. Further, plaintiff argued that the hotel’s failure to preserve such evidence gave rise to a legal presumption that the evidence would have proved detrimental to the hotel’s case.

Once the matter proceeded to trial, plaintiff requested the trial court to provide the jury with a jury charge that included the above presumption. The trial court denied plaintiff’s request and, after deliberations, the jury returned a verdict in favor of the hotel.


Adverse Presumption Doctrine

Without a reasonable explanation, a party’s failure to produce evidence available to them creates a presumption that the unproduced evidence would have been unfavorable to their cause. Salone v. Jefferson Parish Dept. of Water, 94-212, p. 6 (La. App. 5 Cir. 10/12/94), 645 So. 2d 747, 750. In the event the party who fails to produce the evidence has a reasonable explanation, the opposing party will not be entitled to the adverse presumption. (Plaintiff was not entitled to adverse presumption when an inexperienced person responsible for the surveillance video inadvertently deleted more than he intended to delete. Grantham v. Eldorado Resort Casino Shreveport, 49,474 (La. App. 2 Cir. 11/19/14), 152 So.3d 1028, writ denied, 14-2654 (La. 3/6/15), 160 So.3d 1290.)

In Sayre, the hotel had no reasonable explanation as to why they failed to produce evidence of the accident. In fact, through testimony and written standard operating procedures presented at trial it was shown that the hotel security and other staff actually acted directly against the standard operating policies. These policies set forth a series of specific steps to take when an accident occurs, which requires collecting evidence and maintaining control of such evidence to the exclusion of all others. The lead security officer at the time of plaintiff’s injury even testified that guests are not allowed to interview hotel employees, surveillance video is never to be released to a guest, a copy of the incident report is not allowed to be shown to the guest, and guests are prohibited from taking photographs of the incident. Further testimony proved that the hotel had possession of all of this evidence and intended to maintain exclusive control of this evidence. The Third Circuit found that the plaintiff was entitled to the presumption that the missing evidence would have been unfavorable to L’Auberge because the hotel had possession of this evidence and the obligation to preserve any evidence in anticipation of future litigation, which the hotel failed to do.  Ultimately, the Third Circuit set aside the jury verdict, conducted a de novo review, and entered a judgment against L’Auberge for $216,026.54 for past medical expenses and general damages.


This case serves as a reminder to all businesses that in the event of an accident occurring on their premise or as a result of their employee’s actions, they must maintain any information that may be relevant to future litigation. As illustrated in this opinion, the obligation to preserve evidence increases when the company has policies in place to handle situations where evidence should be maintained.


Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.