d by the defendant.[40] The admission of collateral source evidence can only be cured by a new trial. Bass-Davis’ remaining claims Bass-Davis raises several additional assignments of error regarding the district court’s denial of her pre- and post-trial motions. Since we have already determined that Bass-Davis is entitled to a new trial, we need not consider these additional assignments of error. CONCLUSION Considering the potential consequences to the nonspoliating party, we conclude that an NRS 47.250(3) rebuttable presumption only applies in cases involving willfully destroyed evidence. However, the jury, when properly instructed, is permitted to draw an adverse inference when evidence is lost or destroyed through negligence . Accordingly, we conclude that the district court abused its discretion by refusing to either give an adverse inference instruction, permitting the jury to infer that the lost evidence would have been unfavorable to the franchisees or to impose other appropriate sanctions for the lost evidence. The district court also improperly admitted evidence of a collateral source of payment. Accordingly, we reverse the judgment and order below and remand for a new trial consistent with this opinion. ROSE, C.J., BECKER, DOUGLAS and PARRAGUIRRE, JJ., concur. **********FOOTNOTES********** [1] NRAP 40A(a). We deny Bass-Davis’ request, included in her answer to the petition for en banc reconsideration, that this court sanction respondents for allegedly misleading arguments contained in the petition. [2] 113 Nev. 967, 944 P.2d 800 (1997). [3] Id. at 970, 944 P.2d at 802 (quoting NRS 47.250(3)). [4] Atkinson v. MGM Grand Hotel, Inc. , 120 Nev. 639, 642, 98 P.3d 678, 680 (2004). [5] Id. (quoting Silver State Disposal v. Shelley , 105 Nev. 309, 311, 774 P.2d 1044, 1045 (1989)); Johnson v. Egtedar , 112 Nev. 428, 432, 915 P.2d 271, 273 (1996). [6] See Aloi v. Union Pacific Railroad Corp. , 129 P.3d 999, 1002 (Colo. 2006) (“A trial court has broad discretion to permit the jury to draw an adverse inference from the loss or destruction of evidence.”); Oxford Presbyterian Church v. Weil-McLain , 815 A.2d 1094, 1105 (Pa. Super. Ct. 2003) (finding no abuse of discretion in the trial court’s decision to give an adverse inference instruction); Garfoot v. Fireman’s Fund Ins. Co. , 599 N.W.2d 411, 416 (Wis. Ct. App. 1999). But see State v. Hartsfield , 681 N.W.2d 626, 630-31 (Iowa 2004) (rejecting earlier precedent under which a trial court’s refusal to give a spoliation instruction was reviewed for an abuse of discretion, in favor of a “correction of errors of law” standard). [7] Garfoot , 599 N.W.2d at 416. [8] See , e.g. , Willard v. Caterpillar, Inc. , 48 Cal. Rptr. 2d 607, 622 (Ct. App. 1995), overruled on other grounds by Cedars-Sinai Medical Center v. Superior Court , 954 P.2d 511, 521 (Cal. 1998); Smith v. Howard Johnson Co., Inc. , 615 N.E.2d 1037, 1038 (Ohio 1993) (recognizing a tort claim for interference with or destruction of evidence, and stating that willful destruction of evidence, designed to disrupt the opponent’s case, is a necessary element to establish the tort). [9] See , e.g. , Scout v. City of Gordon , 849 F. Supp. 687, 691 (D. Neb. 1994); Moore v. General Motors Corp. , 558 S.W.2d 720, 736 (Mo. Ct. App. 1977). [10] See Sweet v. Sisters of Providence in Washington , 895 P.2d 484, 491-92 (Alaska 1995); Ward v. Consolidated Rail Corp ., 693 N.W.2d 366, 371 (Mich. 2005). [11] Black’s Law Dictionary 778 (6th ed. 1990). Although many courts do not distinguish between a presumption and an inference, see , e.g., Willard v. Buck , 85 Nev. 34, 35, 449 P.2d 471, 472 (1969); Waters v. Genesis Health Ventures, Inc. , 400 F. Supp. 2d 814, 819 (E.D. Pa. 2005); Abraham v. Great Western Energy, LLC , 101 P.3d 446, 455 (Wyo. 2004), significant differences exist. A rebuttable presumption is a rule of law by which the finding of a basic fact gives rise to a presumed fact’s existence, unless the presumption is rebutted. Van Wart v. Cook , 557 P.2d 1161, 1163 (Okla. Civ. App. 1976). [12] See , e.g. , Banks v. Sunrise Hospital , 120 Nev. 822, 831, 102 P.3d 52, 59 (2004) (ruling that the district court did not abuse discretion by giving an instruction permitting the jury to draw an adverse inference that evidence not preserved was adverse, when no evidence was introduced that the evidence had been willfully suppressed). [13] Social Services v. Russell , 861 A.2d 92, 106-07 (Md. Ct. Spec. App. 2004). [14] 142 F.R.D. 68, 75 (S.D.N.Y. 1991); see also Residential Funding Corp. v. DeGeorge Financial , 306 F.3d 99, 108 (2d Cir. 2002) (confirming that, although a party seeking an adverse inference instruction on the basis that evidence was not produced must show that the nonproducing party had a “culpable state of mind,” that factor is satisfied by a showing that the evidence was destroyed “knowingly, even if without intent to breach a duty to preserve it, or negligently”); Nation-Wide Check v. Forest Hills Distributors , 692 F.2d 214, 219 (1st Cir. 1982) (concluding that bad faith is not necessary to establish an adverse inference). [15] See Nation-Wide Check , 692 F.2d at 218; Blinzler v. Marriott Intern., Inc. , 81 F.3d 1148, 1158-59 (1st Cir. 1996). [16] See , e.g. , Council on Ethical & Judicial Affairs, Am. Med. Ass’n, Code of Medical Ethics § 7.05 (1994) (imposing upon physicians “an obligation to retain patient records which may reasonably be of value to a patient”). [17] See , e.g. , DeLaughter v. Lawrence County Hosp. , 601 So. 2d 818, 821-22 (Miss. 1992) (concluding that a duty to preserve evidence arose from a statute requiring hospitals to maintain certain medical records). [18] See , e.g. , Hicks v. Gates Rubber Co. , 833 F.2d 1406, 1418-19 (10th Cir. 1987) (concluding that federal regulation created a duty to preserve evidence). [19] See , e.g. , Fire Ins. Exchange v. Zenith Radio Corp. , 103 Nev. 648, 651, 747 P.2d 911, 914 (1987) (noting, in the context of NRCP 37 discovery sanctions, that “even where an action has not been commenced and there is only a potential for litigation, the litigant is under a duty to preserve evidence which it knows or reasonably should know is relevant to the action”); Wm. T. Thompson Co. v. General Nutrition Corp. , 593 F. Supp. 1443, 1455 (C.D. Cal. 1984); Unigard Sec. Ins. v. Lakewood Engineering & Mfg. , 982 F.2d 363, 365, 367-69 (9th Cir. 1992); Turner , 142 F.R.D. at 72; Welsh v. U.S. , 844 F.2d 1239, 1246 (6th Cir. 1988). [20] See Fire Ins. Exchange , 103 Nev. at 651, 747 P.2d at 914; Nevada Power v. Flour Illinois , 108 Nev. 638, 644 n.7, 837 P.2d 1354, 1359 n.7 (1992); Blinzler , 81 F.3d at 1158-59; McGuire v. Acufex Microsurgical, Inc. , 175 F.R.D. 149, 153 (D. Mass. 1997); Burns v. Cannondale Bicycle Co. , 876 P.2d 415, 419 (Utah Ct. App. 1994) (concluding that there was no duty when a lawsuit had not been filed and there was no notice of an impending action). [21] See Blinzler , 81 F.3d at 1159; Rice v. U.S. , 917 F. Supp. 17, 20 (D.D.C. 1996); Shaffer v. RWP Group, Inc. , 169 F.R.D. 19, 24 (E.D.N.Y. 1996). [22] 144 F.3d 173 (1st Cir. 1998). [23] Id. at 174. [24] Id. at 176-77. [25] Id. at 177. [26] Id. at 178; see also Turner , 142 F.R.D at 76 (concluding that records destroyed pursuant to a document retention policy evidenced negligence rather than bad faith intent, but, because destruction occurred after litigation had commenced, sanctions were warranted). [27] 113 Nev. 967, 944 P.2d 800 (1997). [28] Id. at 970, 944 P.2d at 802. [29] Id. [30] Id. [31] Id. [32] Similarly, we disavow any language in Bohlmann v. Printz , 120 Nev. 543, 548, 96 P.3d 1155, 1158 (2004), that suggests that a rebuttable presumption is proper simply because relevant evidence is destroyed. [33] See Esso International, Inc. v. SS Captain John , 443

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