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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowThe Indiana Court of Appeals affirmed a lower court’s decision to not instruct a jury in a personal injury action regarding the spoliation of evidence. Margaret Dawson, the injured party, had ample time to inspect the mat she tripped on before the store replaced it.
After paying for gas at Thorton’s in Speedway in October 2010, Dawson tripped on the corner of a mat located immediately inside the door. She fell and required surgery for her injuries. A few weeks later, she went back to the store to take pictures of the mat with her camera, but the photos were unusable. Thorton’s replaced the mat in March 2012.
At her trial, Thorton’s wanted to admit a photo of the mat it had taken in the course of its investigation, but Dawson’s counsel objected. The attorney alleged Thorton’s got rid of the mat and shouldn’t be allowed to admit the photo because Dawson was never able to inspect it. Thorton’s attorneys argued that she never asked to inspect the mat, prior counsel only sought the store’s video, and she had ample time to inspect it before it was replaced.
Dawson wanted a jury instruction given regarding spoliation of evidence, but the trial court refused. The parties agreed that the photo would not be admitted into evidence. The jury found Thorton’s was not at fault.
The COA found the instruction proposed by Dawson was not supported by the evidence. Her proposed instruction said: “If a party fails to produce evidence under the party’s exclusive control, you may conclude that the evidence would have been unfavorable to the party’s case.” Dawson did attempt to take pictures of the mat, but they were not usable, Judge Elaine Brown noted in Margaret Dawson v. Thornton's, Inc., 49A02-1403-CT-208.
And her previous counsel sent a letter to Thorton’s seeking video from the store, but never mentioned the mat. In the year-and-a-half between the incident and when the mat was replaced, Dawson and her counsel had ample opportunity to inspect and document its condition, have an expert inspect the mat, or request it be preserved, Brown pointed out.
Further, Dawson didn’t make a showing that Thorton’s concealed or suppressed any facts or evidence regarding the mat.
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