19 N.E.3d 337
Ind. Ct. App.2014Background
- On Oct. 22, 2010, Margaret Dawson tripped on the corner of a mat inside a Thornton’s store and sustained injuries requiring surgery.
- Weeks after the fall Dawson returned, inspected the mat, and attempted (unsuccessfully) to photograph it with her cell phone.
- Thornton’s store manager took a contemporaneous photograph after the fall; the store later replaced the mat (discrepancy in records whether replacement occurred in 2011 or March 2012).
- Dawson sued for negligence in Sept. 2012; at trial Thornton’s sought to admit its post-accident photo of the mat and Dawson sought a spoliation instruction when the mat was not produced.
- The trial court ruled an adverse-inference spoliation instruction required specific notice to preserve the mat and refused the instruction; Thornton’s agreed not to admit the photo during the jury’s presence.
- The jury found for Thornton’s; Dawson appealed, arguing the court erred in refusing her spoliation instruction and should recognize a first-party spoliation cause of action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by refusing a jury instruction permitting an adverse inference for spoliation of the mat | Dawson: Thornton’s controlled and disposed of the mat and knew the mat’s condition would be at issue, so the jury should be allowed an adverse inference | Thornton’s: Dawson had opportunity to inspect the mat, no preservation request was made, and the photograph was routine documentation, not evidence of anticipated litigation | Court: No error or abuse of discretion — evidence did not support spoliation instruction because Dawson and counsel had opportunity to inspect/preserve mat and no concealment shown |
| Whether Indiana should recognize an independent tort for first-party spoliation | Dawson: equity requires recognition of an independent spoliation claim | Thornton’s: existing remedies suffice; no new cause of action should be created | Court: Declined to recognize a separate spoliation tort, following precedent rejecting such a claim |
Key Cases Cited
- Porter v. Irvin's Interstate Brick & Block Co., 691 N.E.2d 1363 (Ind. Ct. App. 1998) (discusses inference when a party has exclusive control and suppresses evidence)
- Cahoon v. Cummings, 734 N.E.2d 535 (Ind. 2000) (defines spoliation and explains its evidentiary use)
- Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349 (Ind. 2005) (refuses to recognize an independent tort for first‑party spoliation)
- Underwood v. Gale Tschuor Co., 799 N.E.2d 1122 (Ind. Ct. App. 2003) (upholds trial court refusal to give spoliation instruction where evidence did not support it)