Adverse Inference Jury Instructions due to Spoliation of Evidence

In a recent case, a trial judge gave the plaintiff a burden shifting adverse inference jury instruction due to a spoliation of evidence argument. No defendant wants any adverse inference jury instruction. These instructions are not favorable to a defendant and don’t present well to a defendant. A burden shifting adverse inference jury instruction is known as the kiss of death jury instruction because it tells the jury to presume a fact and that the plaintiff satisfied a component of the claim unless it is rebutted by the defense. Ouch!

Florida has two standard form jury instructions relative to adverse inferences when it comes to spoliation of evidence:

Adverse inference.

If you find that:

(Name of party) [lost] [destroyed] [mutilated] [altered] [concealed] or otherwise caused the (describe evidence) to be unavailable, while it was within [his] [her] [its] possession, custody, or control; and the (describe evidence) would have been material in deciding the disputed issues in this case; then you may, but are not required to, infer that this evidence would have been unfavorable to (name of party). You may consider this, together with the other evidence, in determining the issues of the case.

***

Burden shifting presumption.

The court has determined that (name of party) had a duty to [maintain (describe missing evidence)] [keep a record of (describe subject matter as to which party had record keeping duty)]. (Name of party) did not [maintain (describe missing evidence)] [or] [keep a record of (describe subject matter as to which party had recordkeeping duty)].

Because (name of party) did not [maintain (describe missing evidence)] [or] [keep a record of (describe subject matter as to which party had a record keeping duty)], you should find that (name of invoking party) established [his] [her] (describe applicable claim or defense) unless (name of party) proves otherwise by the greater weight of the evidence.

Walgreens, Co. v. Chaux, 51 Fla.L.Weekly D117a (Fla. 3d DCA 2026).

As you can see, the burden shifting presumption is much worse because it is basically telling the jury what to find unless the defense can rebut the presumption.

In this case, a woman slipped and fell at a Walgreens. She suffered a brain injury because of the fall. Days after she fell, her counsel notified Walgreens to preserve video evidence from security cameras an hour before the fall to thirty minutes after the fall. Her counsel also went to the store and asked to see the video in which counsel was referred to Walgreens claims administer. The plaintiff and her counsel were informed that there was no video evidence. During the lawsuit, the plaintiff argued that Walgreens spoliated evidence by not having and preserving video evidence. (An evidentiary hearing was held on this fact.) The trial court agreed a sanction was warranted but waited to the date of trial to determine the appropriate sanction. The trial court decided to give the burden-shifting rebuttable presumption adverse inference jury instruction (see above) after the defense rested its case. Notably, the trial court previously said that it would not give a rebuttable presumption so the defense did not plan its testimony or strategy on the rebuttable presumption. Naturally, once this rebuttable presumption was given to the jury, it was the kiss of death for the defense and a verdict was rendered for the plaintiff.

Here, the trial court’s imposition of a burden-shifting sanction after Walgreens rested its case and contrary to its pre-trial announcement, resulted in Walgreens having defended against [plaintiff’s] claim that it was negligent in causing her to slip and fall without notice that the burden was on it to prove by the greater weight of the evidence that it had no actual or constructive notice of a foreign substance on the checkout lane floor. Because Walgreens had no notice that a burden-shifting sanction was in place, it was deprived of the opportunity to meet that burden of proof. Not only was the belated imposition of the sanction a violation of due process, see Schmitz v. Schmitz, 401 So. 3d 416, 423-24 (Fla. 3d DCA 2024) (holding that trial court improperly applied burden-shifting sanction to crossclaims without proper notice where sanction imposed after trial in amended findings of fact and conclusions of law), but the instruction amounted to a directed verdict on an element on [plaintiff’s] claim, such that Walgreens was deprived of a fair trial, see, e.g., Routenberg v. State, 301 So. 3d 325, 330 (Fla. 2d DCA 2020) (stating that trial court’s erroneous instruction on the State’s burden of proof prevented jury from finding that the State did not meet its burden to prove defendant’s use of deadly force was not justified where justifiable use of deadly force was only defense at trial; “This instruction amounted to a directed verdict on [defendant’s] sole defense and thereby deprived him of a fair trial.”).

Walgreens, supra.

The adverse inference jury instruction is a main consideration why spoliation of evidence is argued. It’s also why preserving evidence is critical. Again, no defendant wants any adverse inference jury instruction. Having an adverse inference jury instruction read to a jury presents unfavorably to a defendant. Period. But the burden shifting jury instruction presents worse since it is hard to rebut a presumption when the instruction is telling the jury what to presume because the defense spoliated evidence.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.