Practitioners sometimes reflexively think of circumstantial evidence as a lesser form of proof than direct evidence. But it is not treated that way by law or even necessarily by juries. As the Court of Appeals has recognized, “[c]ircumstantial proof is … as probative as direct evidence and may even be more persuasive.” New York State Ass'n of Ctys v. Axelrod, 78 N.Y.2d 158, 171 (1991). In this column, we will discuss some of the case law governing the use of circumstantial evidence.

Circumstantial evidence is defined in the Pattern Jury Instructions as “evidence of a fact which does not directly prove a fact in dispute but which permits a reasonable inference or conclusion that the fact exists.” See New York Pattern Jury Instructions 1:70 (2017) (Circumstantial Evidence). To illustrate the concept, the Pattern Jury Instructions offer an example of a witness who sees a glass full of water, looks away, hears the sound of glass breaking, and then turns and sees a person sitting by the shattered glass, wearing wet clothes. The witness cannot offer direct evidence of how the glass broke, because she did not see it happen. But she can provide compelling circumstantial evidence that the person with wet clothes was responsible for breaking it. Any party, of course, can rely upon circumstantial evidence, either to prosecute or defend against a claim.

A plaintiff's case can be based, even in its entirety, on circumstantial evidence. “To establish a prima facie case of negligence based wholly on circumstantial evidence, it is enough that plaintiff shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred.” Schneider v. Kings Highway Hosp. Ctr., 67 N.Y.2d 743, 744 (1986) (internal quotation marks and alterations omitted). This language essentially tracks the plaintiff's burden of proving the elements of his case by a preponderance of the evidence. It requires, as the Court of Appeals explained in another case, that the circumstantial evidence adduced “prove that it was 'more likely' or 'more reasonable' that the alleged injury was caused by the defendant's negligence than by some other agency.” Gayle v. City of New York, 92 N.Y.2d 936, 937 (1998) (quoting Schneider, 67 N.Y.2d at 744; Wragge v. Lizza Asphalt Constr. Co., 17 N.Y.2d 313, 321 (1966)).

To satisfy this standard, the plaintiff does not need to exclude, with absolute certainty, every potential cause of an accident other than the defendant's negligence. To begin with, the plaintiff “need not refute remote possibilities.” Bernstein v. City of New York, 69 N.Y.2d 1020, 1022 (1987). The plaintiff also need not conclusively eliminate even non-speculative alternative causes of an accident—a burden that would be virtually impossible to satisfy in most cases. Rather, she must “must render those other causes sufficiently 'remote' or 'technical' to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence.” Holliday v. Hudson Armored Car & Courier Serv., 301 A.D.2d 392, 395 (1st Dept. 2003) (quoting Schneider, 67 N.Y.2d at 744)). In this respect, the standard by which the sufficiency of circumstantial proof is evaluated is flexible, and permits consideration of the particular facts and intricacies of the case in which it is offered.

The Court of Appeals' decision in Spett v. President Monroe Bldg. & Mfg., 19 N.Y.2d 203, 205 (1967), which affirmed a jury verdict based on circumstantial evidence, is illustrative of how these principles operate in practice. There, the plaintiff had been injured when he tripped over the “edge or runner of a 'skid' (a wooden platform about 4 feet square set on 8-by 3-inch runners)” that had been placed outside the door of his office “in the hallway of the commercial building in which [he] sublet office space from the defendant.” Id. at 204-05. He alleged that the defendant corporation, Harvey, had been responsible for placing it there. The court found that although plaintiff had “no [d]irect evidence linking Harvey to the placement of the skid on this particular occasion, the circumstantial evidence tending to establish Harvey's responsibility for it was sufficient to establish a prima facie case.” Id. at 204. It based the conclusion on the fact that the skid was “located between plaintiff's and Harvey's doors, approximately 6 to 8 feet apart on the same side of the hallway” and that it was “loaded with a type of cardboard used by Harvey in its printing business but by no other concerns on the floor.” The defendant's witness testified that the skid could have been placed there by a deliveryman or elevator operator, both of whom would sometimes deliver materials in the hallway in question. The court found that the jury had been entitled to reject this testimony, and to find, based on circumstantial evidence, that Harvey had placed the skid in front of the plaintiff's doorway.

In Uttaro v. Staten Island University, 77 A.D.3d 916 (2d Dept. 2010), the plaintiff was visiting his brother-in-law in a hospital emergency room. An “unidentified individual, who was pushing the plaintiff's brother-in-law on a gurney, pushed the gurney into the plaintiff's knee, injuring him.” The plaintiff contended that the person pushing the gurney had been a hospital employee. The defendant contended that there was no evidence that the plaintiff's allegation was so, and that the gurney could have been pushed by an employee of an independent provider of emergency services, like New York City EMT's. The court found that the plaintiff had adduced proof sufficient to raise a triable issue of fact:

In opposition, however, the plaintiff raised a triable issue of fact through evidence that the unidentified individual was not the same individual who had transported the plaintiff's brother-in-law to the hospital, and that, at the time of the accident, his brother-in-law had already been examined by an Emergency Department physician and was being transported to a different part of the hospital for diagnostic testing. A jury could rationally infer from this circumstantial evidence that it was “more likely” or “more reasonable” that the unidentified individual was an employee of the defendant hospital as opposed to the employee of an independent transport carrier or first responder.

Id. at 916.

Similarly, in Cook v. Supreme Systems, 146 A.D.3d 602 (1st Dept. 2017), the plaintiff had been struck by a bicycle messenger, whose bag bore the word “Supreme,” who “told plaintiff he worked 'there' while pointing towards the building where Supreme has its offices.” The defendant contended that none of its messengers had been in the area at the time, or matched the plaintiff's description of the person who had struck him. The First Department held that the plaintiff's testimony represented “sufficient circumstantial evidence to permit a jury” to infer that the messenger had been defendant's employee. See also Jones v. Hiro Cocktail Lounge, 139 A.D.3d 608 (1st Dept. 2016) (plaintiff who was assaulted in bar raised issue of fact as to defendant bar's liability by testimony that the person who attacked him had been dressed like other security guards, had been standing by door, and had earlier directed him to pay a cover charge); Brumm v. St. Paul's Evangelical Lutheran Church, 143 A.D.3d 1224, 1227 (3d Dept. 2016) (plaintiff's testimony in trip and fall case that she knew she had caught her toe on an object, coupled with later examination of area, was sufficient circumstantial evidence of proximate cause).

In the cases we have just discussed, the plaintiffs were found to have met their burdens because they offered evidence from which a jury could infer that the alleged cause of the accident was more likely or more reasonable than others. To offer a contrary example, in Manning v. 6638 18th Ave. Realty, 28 A.D.3d 434, 434-35 (2d Dept. 2006), the plaintiff had tripped and fallen on a staircase while at work. She testified that she had “slipped on some kind of debris. Either a plastic string or a piece of cardboard, whatever fell off the conveyor at the time.” However, she had not seen any such debris. She stated that she “didn't really see anything,” and “didn't see it specifically,” but that “there was always strings and paper” and that she “had to slip on something.” Id. at 435 (quoting plaintiff's testimony). The Second Department determined that she had failed to submit sufficient evidence from which the cause of her accident could be inferred. It held: “Since it is just as likely that the accident could have been caused by some other factor, such as a misstep or loss of balance, any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation.” Id. at 435 (quoting Teplitskaya v. 3096 Owners, 289 A.D.2d 477, 478 (2d Dept. 2001). The plaintiff in Manning did not prevail because she had failed to submit evidence that the alleged cause of her accident was more likely, or more reasonable, than other potential alternatives.

Habit evidence—a kind of circumstantial evidence—is subject to its own particularized requirements. As a general matter, a party is not permitted to demonstrate that “a person did an act on a particular occasion by showing that he did a similar act on a different, unrelated occasion.” Matter of Brandon's Estate, 55 N.Y.2d 206, 210-11 (1982). But on the other hand, a party may offer “[p]roof of a deliberate repetitive practice by one in complete control of the circumstances.” Halloran v. Virginia Chemicals, 41 N.Y.2d 386, 392 (1977). Conceptually, such evidence is permissible, and may even be “highly probative,” because it permits an inference of the “persistence” of the practice. Id. at 392.

The Court of Appeals' decision Halloran v. Virginia Chemicals, supra, is perhaps the seminal case on the issue. The plaintiff, Halloran, was a mechanic whose duties involved servicing automotive air conditioning units. While he was heating a can of Freon in warm water to accelerate the flow of the chemical, it exploded. He was injured, and sued the company that had manufactured the can of Freon. The defendant manufacturer sought to establish that he had, on prior occasions, used an immersion coil to heat his Freon, which, it claimed, would represent potential evidence that he had overheated the can in question, in violation of the warning labels, on the date in question and had thereby caused his own accident. Id. at 389-90. The defendant was prepared to call a witness who would “testify not only that he had seen Halloran on previous occasions using an immersion coil to heat Freon, but that he had warned plaintiff of the danger as well.” Id. at 390. Halloran contended that evidence was collateral, and therefore inadmissible; the trial judge agreed. Id. at 390.

The Court of Appeals found that the evidence could potentially have been admissible, upon a proper threshold showing. The testimony reflected that “he followed, as of course he would, a routine.” Id. at 392. If “the use of an immersion coil tended to be part of this routine whenever it was necessary to accelerate the flow of the refrigerant, as he indicated was often the case, the jury should not be precluded from considering such evidence as an aid to its determination.” Id. at 392. It would be incumbent on the defendant, however, to show proof of a sufficient number of prior instances where plaintiff had used the coils to demonstrate an actual habitual practice, as opposed to a sporadic one. Id. at 393. The court remanded the matter for re-trial.

The Court of Appeals applied the rules governing the admission of habit evidence to a medical malpractice case in Rivera v. Anilesh, 8 N.Y.3d 627 (2007). In that case, a dentist had administered a routine anesthetic injection to the plaintiff, and had allegedly caused her injury. The dentist established that she frequently administered the injection, a matter of routine practice, and without variance between patients. See id. at 635. There was “no evidence suggesting that [her] pre-extraction injection procedure … would vary from patient to patient depending on the particular medical circumstances or physical condition of the patient.” Id. at 635. The court found that the “mundane administration of a local anesthetic prior to a relatively routine tooth extraction” by a “trained, experienced professional” in “complete control of the circumstances” was properly considered as habit evidence. It is important, however, to appreciate that Rivera involved a particular medical task—a simple pre-extraction injection—that was established to be routine and uniform, regardless of patient. The same cannot be said of much of what takes place in the practice of medicine, and Rivera does not categorically validate the admission of habit evidence in malpractice cases, regardless of the particular facts at issue.

In short, circumstantial evidence, as the cases we have discussed demonstrate, can be a powerful form of proof. As with any kind of evidence, there are legal limits on when it can be used and when it can permissibly be credited by a jury. But when these requisites are met, a claim or defense can be premised, even in its entirety, on circumstantial evidence.

Robert S. Kelner is senior partner at Kelner & Kelner. Gail S. Kelner is an attorney with the firm. Joshua Kelner, an attorney with the firm, participated in the writing of this column.

Practitioners sometimes reflexively think of circumstantial evidence as a lesser form of proof than direct evidence. But it is not treated that way by law or even necessarily by juries. As the Court of Appeals has recognized, “[c]ircumstantial proof is … as probative as direct evidence and may even be more persuasive.” New York State Ass'n of Ctys v. Axelrod , 78 N.Y.2d 158, 171 (1991). In this column, we will discuss some of the case law governing the use of circumstantial evidence.

Circumstantial evidence is defined in the Pattern Jury Instructions as “evidence of a fact which does not directly prove a fact in dispute but which permits a reasonable inference or conclusion that the fact exists.” See New York Pattern Jury Instructions 1:70 (2017) (Circumstantial Evidence). To illustrate the concept, the Pattern Jury Instructions offer an example of a witness who sees a glass full of water, looks away, hears the sound of glass breaking, and then turns and sees a person sitting by the shattered glass, wearing wet clothes. The witness cannot offer direct evidence of how the glass broke, because she did not see it happen. But she can provide compelling circumstantial evidence that the person with wet clothes was responsible for breaking it. Any party, of course, can rely upon circumstantial evidence, either to prosecute or defend against a claim.

A plaintiff's case can be based, even in its entirety, on circumstantial evidence. “To establish a prima facie case of negligence based wholly on circumstantial evidence, it is enough that plaintiff shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred.” Schneider v. Kings Highway Hosp. Ctr. , 67 N.Y.2d 743, 744 (1986) (internal quotation marks and alterations omitted). This language essentially tracks the plaintiff's burden of proving the elements of his case by a preponderance of the evidence. It requires, as the Court of Appeals explained in another case, that the circumstantial evidence adduced “prove that it was 'more likely' or 'more reasonable' that the alleged injury was caused by the defendant's negligence than by some other agency.” Gayle v. City of New York , 92 N.Y.2d 936, 937 (1998) (quoting Schneider , 67 N.Y.2d at 744; Wragge v. Lizza Asphalt Constr. Co. , 17 N.Y.2d 313, 321 (1966)).

To satisfy this standard, the plaintiff does not need to exclude, with absolute certainty, every potential cause of an accident other than the defendant's negligence. To begin with, the plaintiff “need not refute remote possibilities.” Bernstein v. City of New York , 69 N.Y.2d 1020, 1022 (1987). The plaintiff also need not conclusively eliminate even non-speculative alternative causes of an accident—a burden that would be virtually impossible to satisfy in most cases. Rather, she must “must render those other causes sufficiently 'remote' or 'technical' to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence.” Holliday v. Hudson Armored Car & Courier Serv. , 301 A.D.2d 392, 395 (1st Dept. 2003) (quoting Schneider , 67 N.Y.2d at 744)). In this respect, the standard by which the sufficiency of circumstantial proof is evaluated is flexible, and permits consideration of the particular facts and intricacies of the case in which it is offered.

The Court of Appeals' decision in Spett v. President Monroe Bldg. & Mfg. , 19 N.Y.2d 203, 205 (1967), which affirmed a jury verdict based on circumstantial evidence, is illustrative of how these principles operate in practice. There, the plaintiff had been injured when he tripped over the “edge or runner of a 'skid' (a wooden platform about 4 feet square set on 8-by 3-inch runners)” that had been placed outside the door of his office “in the hallway of the commercial building in which [he] sublet office space from the defendant.” Id. at 204-05. He alleged that the defendant corporation, Harvey, had been responsible for placing it there. The court found that although plaintiff had “no [d]irect evidence linking Harvey to the placement of the skid on this particular occasion, the circumstantial evidence tending to establish Harvey's responsibility for it was sufficient to establish a prima facie case.” Id. at 204. It based the conclusion on the fact that the skid was “located between plaintiff's and Harvey's doors, approximately 6 to 8 feet apart on the same side of the hallway” and that it was “loaded with a type of cardboard used by Harvey in its printing business but by no other concerns on the floor.” The defendant's witness testified that the skid could have been placed there by a deliveryman or elevator operator, both of whom would sometimes deliver materials in the hallway in question. The court found that the jury had been entitled to reject this testimony, and to find, based on circumstantial evidence, that Harvey had placed the skid in front of the plaintiff's doorway.

In Uttaro v. Staten Island University , 77 A.D.3d 916 (2d Dept. 2010), the plaintiff was visiting his brother-in-law in a hospital emergency room. An “unidentified individual, who was pushing the plaintiff's brother-in-law on a gurney, pushed the gurney into the plaintiff's knee, injuring him.” The plaintiff contended that the person pushing the gurney had been a hospital employee. The defendant contended that there was no evidence that the plaintiff's allegation was so, and that the gurney could have been pushed by an employee of an independent provider of emergency services, like New York City EMT's. The court found that the plaintiff had adduced proof sufficient to raise a triable issue of fact:

In opposition, however, the plaintiff raised a triable issue of fact through evidence that the unidentified individual was not the same individual who had transported the plaintiff's brother-in-law to the hospital, and that, at the time of the accident, his brother-in-law had already been examined by an Emergency Department physician and was being transported to a different part of the hospital for diagnostic testing. A jury could rationally infer from this circumstantial evidence that it was “more likely” or “more reasonable” that the unidentified individual was an employee of the defendant hospital as opposed to the employee of an independent transport carrier or first responder.

Id. at 916.

Similarly, in Cook v. Supreme Systems , 146 A.D.3d 602 (1st Dept. 2017), the plaintiff had been struck by a bicycle messenger, whose bag bore the word “Supreme,” who “told plaintiff he worked 'there' while pointing towards the building where Supreme has its offices.” The defendant contended that none of its messengers had been in the area at the time, or matched the plaintiff's description of the person who had struck him. The First Department held that the plaintiff's testimony represented “sufficient circumstantial evidence to permit a jury” to infer that the messenger had been defendant's employee. See also Jones v. Hiro Cocktail Lounge , 139 A.D.3d 608 (1st Dept. 2016) (plaintiff who was assaulted in bar raised issue of fact as to defendant bar's liability by testimony that the person who attacked him had been dressed like other security guards, had been standing by door, and had earlier directed him to pay a cover charge); Brumm v. St. Paul's Evangelical Lutheran Church , 143 A.D.3d 1224, 1227 (3d Dept. 2016) (plaintiff's testimony in trip and fall case that she knew she had caught her toe on an object, coupled with later examination of area, was sufficient circumstantial evidence of proximate cause).

In the cases we have just discussed, the plaintiffs were found to have met their burdens because they offered evidence from which a jury could infer that the alleged cause of the accident was more likely or more reasonable than others. To offer a contrary example, in Manning v. 6638 18th Ave. Realty, 28 A.D.3d 434, 434-35 (2d Dept. 2006), the plaintiff had tripped and fallen on a staircase while at work. She testified that she had “slipped on some kind of debris. Either a plastic string or a piece of cardboard, whatever fell off the conveyor at the time.” However, she had not seen any such debris. She stated that she “didn't really see anything,” and “didn't see it specifically,” but that “there was always strings and paper” and that she “had to slip on something.” Id. at 435 (quoting plaintiff's testimony). The Second Department determined that she had failed to submit sufficient evidence from which the cause of her accident could be inferred. It held: “Since it is just as likely that the accident could have been caused by some other factor, such as a misstep or loss of balance, any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation.” Id. at 435 (quoting Teplitskaya v. 3096 Owners, 289 A.D.2d 477, 478 (2d Dept. 2001). The plaintiff in Manning did not prevail because she had failed to submit evidence that the alleged cause of her accident was more likely, or more reasonable, than other potential alternatives.

Habit evidence—a kind of circumstantial evidence—is subject to its own particularized requirements. As a general matter, a party is not permitted to demonstrate that “a person did an act on a particular occasion by showing that he did a similar act on a different, unrelated occasion.” Matter of Brandon's Estate, 55 N.Y.2d 206, 210-11 (1982). But on the other hand, a party may offer “[p]roof of a deliberate repetitive practice by one in complete control of the circumstances.” Halloran v. Virginia Chemicals , 41 N.Y.2d 386, 392 (1977). Conceptually, such evidence is permissible, and may even be “highly probative,” because it permits an inference of the “persistence” of the practice. Id. at 392.

The Court of Appeals' decision Halloran v. Virginia Chemicals, supra, is perhaps the seminal case on the issue. The plaintiff, Halloran, was a mechanic whose duties involved servicing automotive air conditioning units. While he was heating a can of Freon in warm water to accelerate the flow of the chemical, it exploded. He was injured, and sued the company that had manufactured the can of Freon. The defendant manufacturer sought to establish that he had, on prior occasions, used an immersion coil to heat his Freon, which, it claimed, would represent potential evidence that he had overheated the can in question, in violation of the warning labels, on the date in question and had thereby caused his own accident. Id. at 389-90. The defendant was prepared to call a witness who would “testify not only that he had seen Halloran on previous occasions using an immersion coil to heat Freon, but that he had warned plaintiff of the danger as well.” Id. at 390. Halloran contended that evidence was collateral, and therefore inadmissible; the trial judge agreed. Id. at 390.

The Court of Appeals found that the evidence could potentially have been admissible, upon a proper threshold showing. The testimony reflected that “he followed, as of course he would, a routine.” Id. at 392. If “the use of an immersion coil tended to be part of this routine whenever it was necessary to accelerate the flow of the refrigerant, as he indicated was often the case, the jury should not be precluded from considering such evidence as an aid to its determination.” Id. at 392. It would be incumbent on the defendant, however, to show proof of a sufficient number of prior instances where plaintiff had used the coils to demonstrate an actual habitual practice, as opposed to a sporadic one. Id. at 393. The court remanded the matter for re-trial.

The Court of Appeals applied the rules governing the admission of habit evidence to a medical malpractice case in Rivera v. Anilesh , 8 N.Y.3d 627 (2007). In that case, a dentist had administered a routine anesthetic injection to the plaintiff, and had allegedly caused her injury. The dentist established that she frequently administered the injection, a matter of routine practice, and without variance between patients. See id. at 635. There was “no evidence suggesting that [her] pre-extraction injection procedure … would vary from patient to patient depending on the particular medical circumstances or physical condition of the patient.” Id. at 635. The court found that the “mundane administration of a local anesthetic prior to a relatively routine tooth extraction” by a “trained, experienced professional” in “complete control of the circumstances” was properly considered as habit evidence. It is important, however, to appreciate that Rivera involved a particular medical task—a simple pre-extraction injection—that was established to be routine and uniform, regardless of patient. The same cannot be said of much of what takes place in the practice of medicine, and Rivera does not categorically validate the admission of habit evidence in malpractice cases, regardless of the particular facts at issue.

In short, circumstantial evidence, as the cases we have discussed demonstrate, can be a powerful form of proof. As with any kind of evidence, there are legal limits on when it can be used and when it can permissibly be credited by a jury. But when these requisites are met, a claim or defense can be premised, even in its entirety, on circumstantial evidence.

Robert S. Kelner is senior partner at Kelner & Kelner. Gail S. Kelner is an attorney with the firm. Joshua Kelner, an attorney with the firm, participated in the writing of this column.