A trout in the milk: subtly raising the burden of proof in a wrongful death case.

• Author: Roper, Joseph J.
• Position: Missouri

A Case Study by Joseph J. Roper

It was a bitterly cold night--single digit temperatures and a howling wind raked the rural Missouri countryside. Jane Doe, a widow in her eighties, felt a chill. She peered at the thermostat. It was high, but there was no warm air from the vents. She suspected that her furnace was not working and, sure enough, it was not. She was puzzled. Jane had owned the same furnace for over twenty years without a single problem. She was a "keep full" customer of the propane company and had never run out before. She bundled up, dialed the phone and asked to speak to her regular propane delivery man.

John Smith had delivered propane to the same customers for decades. He also tried farming on the side. The work had eased a bit when his son, 21-year-old Sam, had begun to help him with the deliveries. When the phone rang on that frigid, miserable night, he was glad he had Sam there to answer the call from his customer and friend, Jane. He sent Sam to restore the warmth to her home.

When Sam arrived, he found the propane tank empty. Working quickly, he filled the tank. He went to the basement, relit the pilot and started the furnace. All seemed as it should be. He apologized to Jane for missing the delivery, talked about the weather, and then made his way into the frosty night.

The next morning, Jane was found dead in her bed by a neighbor dropping by for a visit. Her blood revealed that she had died from massive exposure to carbon monoxide.

Circumstantial evidence is occasionally very convincing, as where you find a trout in the milk, to quote Thoreau's example. Sherlock Holmes, The Adventure of the Noble Bachelor The difficulty presented by this case is evident. Certainly there would be much testimony regarding maintenance of the furnace, standards for relighting pilots, stack heights, and flue reversals, but there would be no escape from the simple facts upon which our juror detectives would focus: Everything was fine until Sam showed up, and it then went horribly wrong. Plainly SOMETHING happened. Sam was the last one to touch the furnace and all the fancy experts in the world were not going to diminish that single fact. The circumstances of the case seemed self-proving, particularly when coupled with what would most assuredly be countless emphatic references by plaintiffs' counsel to the concept of preponderance of the evidence. Our chances of winning the case were grimly stated by the mediator as "none, as in no chance."

...