The destruction of key evidence can kneecap a plaintiff’s case, regardless of any adverse inference instruction a judge may give. In 2017's Fournier v. Derazi trial, however, Mark Avera overcame the destruction of vital evidence to win a seven-figure verdict for a college student injured in a fall from a house deck.
Amanda Fournier suffered spinal compression fractures in a 12-foot fall from a deck during a party at a rental home owned by Shahab Derazi. Fournier, a 17-year-old University of North Florida student when the fall occurred in 2013, claimed the deck’s railing gave way as she rested her hand on it, while Derazi argued the deck was solidly built, had been checked by handyman Travis Maple just weeks before the fall, and that Fournier had stumbled against the railing and crashed through it.
Notably, pieces of the deck railing involved in the collapse had been destroyed before they had been completely examined. Fourth Circuit Court Judge Karen Cole instructed jurors that they were permitted, though not required, to infer the lost evidence would have been unfavorable to Derazi.
During his closing argument, Avera, of Avera & Smith, argued that, despite the absence of railing that actually broke away in Fournier’s fall, the pieces of the deck that remained for inspection were in such shoddy condition that they proved plaintiff’s case.
Avera took jurors on a photographic tour of the deck, highlighting missing bolts, improperly secured railings, and screws that compromised the railing's strength.
More damning, Avera said the photos undermined Maple’s testimony that the deck and railing were secure. Avera showed jurors a photo of an unsecured rail to the left of where Fournier was standing when she fell. That rail, Avera noted, was in the same spot Maple,who did not have a contractor’s license, had replaced deck planks. “He has to be looking right here to put these screws in,” Avera said, pointing to the spot on the photo next to the obviously unsecured railing. “[This should have been a] red flag. Danger. Let’s do an inspection of the whole thing. This isn’t a secure railing.”
The photos, Avera argued, only backed up what expert testimony concluded about the dangerous state of the railing as a whole. “The evidence of the railing being in a dangerous condition is overwhelming,” Avera said. “If we have to demonstrate to you by the greater weight of the evidence that this railing was in a dangerous condition, not only have we done that, we’ve proven to you by clear and convincing evidence, we’ve proven to you beyond… all reasonable doubt.”
Jurors agreed, handing down a $1.1 million verdict, which apportioned 80% of responsibility to Derazi, 5% to Fournier, and the remaining 15% to a non-party fraternity.
Email Arlin Crisco at acrisco@cvn.com.
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