Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

CHAPTER X: ALLOCATION, INFERENCE, BURDENS, AND PRESUMPTIONS
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C. Strategies for Bridging the Gap (1031)

Problem - Family Car (1031)

Answer and Analysis:

The plaintiff proves that the owner of the car is the driver's parent and that the driver lives at home with his parent. Is this sufficient evidence on which to base a finding that the car was being driven with the parent's permission? The facts are suggestive, but there is a plausible hypothesis that cannot be eliminated either by credibility assessments or by reasonable assessments of the circumstantial evidence, namely, the driver took the car without the parent's permission.

Unless assisted by some form of presumption, the plaintiff will lose by directed verdict. The defendant, because of the nature of the adversary process, is normally entitled to remain in repose without prejudice to his position at least until the plaintiff has proved a case sufficient to go to the factfinder. The most minimal form of assistance to the plaintiff is the "explanation seeker', a form of presumption which removes this entitlement. The consequence of removing it is that the plaintiff becomes entitled to add to its proof whatever inference might be considered appropriate from the defendant's silence. The plaintiffs proof thus becomes that the owner is the drivers parent, that the driver lives with the owner, and that the owner came forward with no explanation when called upon to do so. This is sufficient proof on which to make a finding. The explanation-seeker does not result in a directed verdict against the defendant if he does not respond. The sanction on him is only that an inference may be drawn against him.

If the defendant does not respond, then the body of evidence on which the factfinder has the opportunity to deliberate has been considerably enriched. The factfinder may well conclude that the defendant's explanation is a self-serving fabrication, from which the factfinder might conclude that the driver was driving with the parent's permission.



Problem - Post Office (1032)

Answer and Analysis:

Plaintiff proves that he duly mailed the acceptance. Is this sufficient evidence on which to base a finding that the acceptance was received? The factfinder has no way of eliminating the plausible hypothesis that the acceptance got lost in the mail. Nor does a simple explanation-seeker necessarily help. The defendant says that all he knows is that he did not receive the acceptance.

The situation is one in which a policy judgment backing the integrity of the U.S. mail is expressed by allocation-shifting presumption. The starting assumption is that the acceptance was not received; the plaintiff starts with a burden of displacing that assumption. Once the plaintiff proves that he duly mailed the acceptance (the predicate of the presumption) the assumption shifts to one that the acceptance was received, and a burden is placed upon the defendant to displace that assumption. Moreover, the burden is a fairly heavy one. The defendant must prove affirmatively (to a preponderance) that he did not receive the acceptance. This is an example of the Morgan, burden-shifting presumption in a situation in which a policy judgment justifies its heavy effect.



Problem - Last Carrier (1032)

Answer and Analysis:

Plaintiff proves that the goods were shipped in good condition and arrived in damaged condition. One of the three carriers must have damaged it, but the plaintiff cannot show to a preponderance which one.

When it turns out that the plaintiff cannot prove which carrier was the cause in fact of the damage, it may make sense to decide the case on another issue; in this situation, the alternate issue is, which defendant was the last carrier. The logic of this strategy of resolution is not necessarily that the last carrier is the most likely one to have caused the damage. It may be a logical basis for decision because the last carrier is most amenable to suit by the receiver of the package. (This idea is pursued in greater depth in the discussion of Sindell v. Abbott Laboratories (1067)

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