What is Burden Shifting?

Burden shifting is a legal concept that changes who is responsible for proving or disproving a key fact in a case. In personal injury law, the burden of proof usually starts with the plaintiff, but under certain circumstances, the burden may shift to the defendant—requiring them to present evidence or explain their actions.

Burden shifting can significantly impact the outcome of a case, especially when one side has more access to critical evidence.

How does burden shifting work in personal injury cases?

In most personal injury cases, the plaintiff bears the initial burden of proof, meaning they must show that the defendant was negligent and caused their injury. However, if the plaintiff meets that burden with enough evidence, the burden may shift to the defendant to rebut the claim or prove a defense.

Courts may also apply burden shifting in situations where the defendant has exclusive control of the evidence or circumstances.

• Plaintiff must prove negligence, causation, and damages initially.

• If a prima facie case is made, the burden may shift to the defendant to respond.

• Common in summary judgment motions, where each side must meet its burden at different stages.

• Applies in some strict liability or res ipsa loquitur cases, where fault is inferred unless rebutted.

What are examples of burden shifting?

A common example occurs in premises liability cases. If a customer slips in a store and shows that a dangerous condition existed and caused injury, the store may have to prove it took reasonable steps to prevent the hazard. In employment law, burden shifting is also used frequently in discrimination and retaliation cases.

Burden shifting helps promote fairness when one party has better access to information or control over the situation.

• Slip and fall: Customer shows unsafe floor; store must prove reasonable maintenance.

• Product liability: Plaintiff proves defect and injury; manufacturer may need to show no negligence.

• Medical malpractice: If a surgical tool is left inside a patient, the hospital may have to prove how it wasn’t negligent.

• Res ipsa loquitur cases shift burden when negligence is presumed based on the nature of the event.

What is the difference between burden of proof and burden shifting?

The burden of proof refers to a party’s obligation to establish the facts of their case. Burden shifting, on the other hand, occurs when that obligation temporarily transfers to the other party, typically after an initial showing of evidence. This is a procedural tool to balance fairness, especially when one party controls the facts or documents.

Understanding both helps clarify how evidence is presented and challenged in court.

• Burden of proof is the overarching responsibility to prove your claim or defense.

• Burden shifting is a procedural move triggered by evidence or legal standards.

• Shifting occurs after the plaintiff presents enough evidence to support a claim.

• The final burden of proof usually returns to the plaintiff, especially in civil cases.

When does burden shifting help a plaintiff?

Burden shifting can be especially helpful to plaintiffs when they lack direct evidence of negligence, but the facts strongly suggest the defendant is responsible. For example, in a res ipsa loquitur case—Latin for “the thing speaks for itself”—the burden may shift to the defendant to explain how an injury occurred without their fault.

This tool is powerful when plaintiffs can’t access internal records, surveillance, or witnesses.

• Gives plaintiffs leverage when direct evidence is limited.

• Forces defendants to explain or rebut obvious negligence.

• Used in situations involving exclusive control (e.g., surgical errors, malfunctioning equipment).

• Helps balance access to evidence, especially in institutional or corporate cases.

Conclusion

Burden shifting plays a critical role in how personal injury cases are argued and won. While plaintiffs must initially prove their claims, burden shifting can compel defendants to explain their actions or disprove liability. Understanding this concept is key to navigating court procedures and building a strong legal strategy.