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Livanovitch v. Livanovitch

Supreme Court of Vermont · Civil Procedure

Civil ProcedureBurden of ProofJury InstructionsPresumptionspreponderance of the evidenceslightest preponderancecivil burden of proofjury instruction

Facts

The plaintiff claimed that he delivered two $100 Liberty Bonds to the defendant for safe keeping only. He further claimed that when he later demanded their return, the defendant refused to give them back, and he sued in tort for conversion. The defendant denied ever receiving the bonds. That denial created the only controverted question in the case.

Issue

Whether the trial court erred by instructing the jury that the plaintiff should prevail if the jury was even "the slightest degree" more inclined to believe he delivered the bonds, and whether the court erred by refusing to instruct that a presumption of innocence should be weighed as evidence in the defendant's favor in this tort action.

Rule

In a civil case, the party with the burden of proof need only establish the claim by a preponderance of the evidence, and no degrees of preponderance are recognized by law; if the evidence inclines toward that party, however slightly, the burden is met. A presumption of innocence is weighed as evidence in tort actions only when they involve a charge of fraud, dishonesty, or crime, and it does not apply in an ordinary action of trover.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a civil suit in Burlington, Vermont, Nina Patel alleges that Owen Mercer damaged her antique desk while storing it in his warehouse. At the close of evidence, the judge tells the jury that Nina must prove her claim by a preponderance of the evidence and that if her version is more convincing than Owen's, even by a very small margin, she has carried her burden.

If Owen argues on appeal that the phrase "even by a very small margin" improperly lowered the plaintiff's burden, how should the court rule?

Explanation. The instruction is proper. The majority opinion states that in civil cases the law recognizes no degrees of preponderance; once the evidence inclines toward the party with the burden, however slightly, that party has satisfied the burden. Saying the plaintiff prevails if her evidence is more convincing by a very small margin merely restates the ordinary preponderance standard. (Derived from Livanovitch v. Livanovitch (n.d.).)