The Court of Appeals for the 2nd Circuit, based in New York, has recently decided a case which clarifies the plaintiff's burden of proof in allision cases. An allision is a collision between a moving object and a stationary object.
In the case of Zerega Avenue Realty Corp. v. Hornbeck Offshore Transportation, LLC, a barge allided with a bulkhead or retaining wall on shore. The property owner brought suit against the tug company responsible for the barge. At trial, the property owner asserted that under the Oregon Rule (from the U.S. Supreme Court case, The Oregon), it was entitled to a presumption of fault shifting the burden from the plaintiff to the defendant-vessel owner to prove that it was NOT the cause of the damage. The general rule in torts is that the claimant has the burden to show the defendant was the cause of damage.
The court found, however, that the presumption did not extend to whether the allision caused the damages alleged. Because the trial court did extend the presumption, the case was reversed and returned to the trial court for such determination.
Side note for the trial bar: Apparently, photographs were used as exhibits. Counsel, during witness examination, did not ask if the photographs "fairly and accurately portrayed the area shown" in the picture. The trial court sustained an objection to the admission of the photograph as lacking proper foundation. The Court of Appeals, perhaps not appreciative of strict application of the Rules of Evidence, wrote: "It would have been preferable for the District Court, when discussing the foundation issue with counsel at sidebar, to have offered the helping hand of a properly framed follow-up question." (emphasis added).
Always nice to get a helping hand from the courts.
