This is a seemingly simple question, that can actually be very difficult, as I experienced with a file earlier this year. A woman alleged she fell in the main entrance to a supermarket, but could she prove she was there?
When this particular supermarket learns of a customer fall, there was an incident reporting procedure in place that would gather and document certain facts. Except, in this case, there was literally not one single indication that procedure had ever been activated. There was no store report, employee statements, photographs, or video. If the fall had been reported, all of this would have existed.
The only person with the woman when she fell was her former sister in law. The sister in law had come to visit for her nephew’s birthday. The woman and sister in law went shopping together to get groceries for a special dinner. She was not exactly an unbiased witness.
Both also gave generic descriptions of employees with whom they interacted after the fall occurred. The descriptions were so generic they could have fit at least six different employees who could have been working in the area. They frankly could have identified a significant percentage of the people living in Las Vegas.
The woman also described two customers who supposedly helped her after she fell. However, she never get their names or contact information. She never saw them again.
The woman no longer had the receipt documenting her purchase. She and the sister in law testified they paid in cash, so there would be no bank or credit card statements showing a purchase at the store.
If the woman or sister in law had taken any photographs at the scene with their cell phones, the photographs would have contained metadata that could be extracted to potentially identify when and where the photographs were taken. The problem was they didn’t take any photographs.
Cell Phone Tower Data?
Ever wonder how your phone knows where you are? Triangulation. It is part of the same principle that was used to support a conviction in Burnside v. State. Admittedly, if you relying upon this data as the sole basis for placing a person at a certain place, at a certain time, then you are already reaching. In this case, the woman requested, but was unable to obtain this data for her own phone.
Soooooo…. What Do You Do Now?
The jury has to chose whether to believe the woman and the sister in law. But the woman still had to get past summary judgment. The court could not decide whether she fell at the store as a matter of law because there was a genuine issue of material fact. However, the woman still had the burden to prove a breach. Even if she fell at the store, she still lacked the evidence to prove that. In the end, the woman didn’t like her odds and folded when discovery closed.
 131 Nev. Adv. Op. 40, 352 P.3d 627 (2015).