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A negative inference instruction will not be granted where the evidence was destroyed in the normal course of business and where the defendant neither intentionally destroyed the evidence nor had actual control over the evidence at the time it was destroyed; the litigation may continue without the actual vehicle where evidence of other similar accidents existed. Davis v. Ford Motor Company et al, Civil Action No. 3:02CV271LN, U.S. District Court for the Southern District of Mississippi, Jackson Division, June 23, 2005.

In 2000, Davis rented a 2000 Ford Explorer from Hertz. Davis suffered injuries after an accident in which the Explorer rolled over and he was ejected from the vehicle. Davis did not consult with an attorney regarding an action against Ford and Hertz until 1 year after the accident, claiming she was involved in her own physical and emotional recovery from the accident. An action was not commenced until 2002. Meanwhile, 3 months after the accident, Hertz sold the Explorer to a salvage yard in the normal course of business. At the time of the sale, Hertz had no notice of any potential litigation involving the Explorer. The court concluded that the sale and subsequent repair of the vehicle could not amount to intentional or negligent destruction of evidence and that the proposed negative inference instruction requested by the plaintiff could not be justified.

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