161 N.E.3d 1274
Ind. Ct. App.2020Background
- On May 26, 2012, Jessica Whetstine was thrown from a motorcycle after her passenger struck a wooden pallet in the middle of I-164; Jessica suffered serious injuries.
- Police found a pallet and a shipping label near the scene; the label was later identified as associated with Menard shipments (though for a product not shipped on pallets and from a shipment two weeks earlier).
- Menard security gave police a still image from its Evansville store surveillance showing a pickup that had taken pallets that day; Menard’s surveillance tapes were routinely destroyed after 90 days under company policy.
- Jessica filed an initial complaint in October 2012 naming unknown parties and did not name Menard until May 2014; Menard argued it had no notice to preserve the Evansville surveillance tape prior to being named.
- In 2019 the Whetstines sought default judgment for alleged spoliation, sought to admit an internet photograph of a Menards truck hauling pallets, and requested a res ipsa loquitur jury instruction; the trial court denied all three and a jury returned a verdict for Menard.
- The Court of Appeals affirmed: Menard had no duty to preserve the tape (no spoliation), the internet photo lacked sufficient foundation and relevancy, and res ipsa loquitur was unsupported because Menard lacked exclusive control of the pallet.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by denying a default judgment for spoliation of evidence (failure to preserve Menard surveillance video) | Menard had a duty to preserve the Evansville surveillance video once Menard security provided a still to Detective Mayhew; destruction = spoliation warranting default judgment | Menard had no duty to preserve because (1) Menard was not notified it would be a party and (2) Detective Mayhew did not ask Menard to retain the tape after receiving the still; record-retention policy controlled | Denied abuse of discretion. No duty to preserve arose before Menard was put on notice; therefore no spoliation and default was not warranted |
| Whether the trial court abused its discretion by excluding a photograph allegedly showing a Menards truck hauling pallets | The photo impeached Menard’s manager who testified Menard did not haul pallets on flatbeds; photo shows Menards truck with open trailer of pallets | Photo lacked authentication (no source, date, location, or provenance) and was not shown to be relevant to 2012 Evansville operations | Denied abuse of discretion. Photo lacked a strong foundation and was irrelevant/misleading to the time/place at issue |
| Whether the trial court abused its discretion by refusing a res ipsa loquitur instruction | The pallet’s unexplained presence in the roadway and the Menard shipping label near the scene supported an inference Menard had exclusive control and negligence could be inferred | Evidence did not show Menard had exclusive control of the pallet at the time of the accident; the label and other facts did not tie the pallet to Menard’s custody then | Denied abuse of discretion. Res ipsa requires exclusive control and probability of negligence; exclusive control was not shown |
Key Cases Cited
- R.R. Donnelley & Sons Co. v. N. Tex. Steel Co., Inc., 752 N.E.2d 112 (Ind. Ct. App. 2001) (trial court’s default-judgment discretion standard)
- Allstate Ins. Co. v. Watson, 747 N.E.2d 545 (Ind. 2001) (default judgment is an extreme remedy; doubts resolved for the defaulted party)
- N. Ind. Pub. Serv. Co. v. Aqua Envtl. Container Corp., 102 N.E.3d 290 (Ind. Ct. App. 2018) (elements of spoliation/duty to preserve evidence)
- Golden Corral Corp. v. Lenart, 127 N.E.3d 1205 (Ind. Ct. App. 2019) (duty to preserve may arise before suit when defendant knows litigation is probable)
- Bergner v. State, 397 N.E.2d 1012 (Ind. Ct. App. 1979) (photograph authentication and the “strong” foundation required for substantive use)
- Farmer v. Werner Transp. Co., 284 N.E.2d 861 (Ind. Ct. App. 1972) (insufficient evidence of exclusive control defeats res ipsa instruction)
- Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Hoffman, 107 N.E. 315 (Ind. App. 1914) (classic res ipsa example where instrumentality was under defendant’s exclusive control)
- Otter Creek Trading Co., Inc. v. PCM Enviro PRY, LTD, 60 N.E.3d 219 (Ind. Ct. App. 2016) (trial court may refuse jury instructions unsupported by evidence)