Stacking Inferences is Insufficient
Sometimes at the end of discovery, all a party has are inferences. However, stacking inferences is not sufficient to defeat summary judgment.
For instance, I had a slip and fall case where the plaintiff conceded the video of his fall “is unclear if a liquid is somehow spilled on the ground,” but then speculated that 1) the movements of various unknown guests must have been because a hazard was on the floor; 2) if so, then the hazard must have been on the floor for 14 minutes before the fall; and 3) if so, then possible employees walking through the area should have seen the hazard based upon an “adequate” visual inspection. Nevada has rejected stacking inferences in criminal case,[1] but has not specifically addressed it in a civil case. Other jurisdictions have considered it and also rejected it for decades.[2] Don’t get caught at the end of discovery with nothing but inferences.
[1] Howard v. Sheriff of Clark Cty., 83 Nev. 48, 52, 422 P.2d 538, 540 (1967) (“It is not permissible, in ruling on a bail application, to arrive at that conclusion by stacking inference upon inference.”).
[2] Almond v. Flying J Gas Co., 957 So. 2d 437, 440 (Miss. App. 2007) (affirming summary judgment where to avoid it the court would have had “to stack inference upon inference in order to conclude that Flying J is liable for her personal injuries.”); Petruska v. Smartparks-Silver Springs, Inc., 914 So. 2d 502, 505 (Fla. App. 2005) (“The prohibition against stacking of inferences has been applied by the courts when determining the propriety of summary judgment dispositions.”); Roth v. FTP Operating Partners, L.P., 994 S.W.2d 190, 197 (Tex. App. 1999) (affirming summary judgment where evidence of causation was based upon an impermissible piling of inference upon inference and was only speculative.); Hansler v. Bass, 743 P.2d 1031, 1035 (N.M. Ct. App. 1987) (“While a party opposing summary judgment is entitled to have reasonable inferences drawn from the facts, [but] to reach plaintiffs’ conclusions the trial court would have had to stack one inference upon another inference. This is not permitted.”); Boles v. Montgomery Ward & Co., 92 N.E.2d 9, 13 (Ohio 1950)(“To decide in plaintiffs favor, it is necessary to indulge in speculation and conjecture and to build inference upon inference, neither of which is permissible.”); Wills v. Berberich’s Delivery Co., 134 S.W.2d 125, 129 (Mo. 1939) (“The rule prohibiting the piling of inferences is applied when necessary to guard against attenuated reasoning, as where an initial inference is drawn from a fact, and other inferences are built solely and cumulatively upon the first, so that the conclusion reached is too remote and has no sound logical foundation in fact.”).