FILED
                                                                                Dec 28 2020, 10:33 am

                                                                                     CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court




ATTORNEY FOR APPELLANTS                                      ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                          MENARD INC.
Anderson, Indiana                                            Leslie B. Pollie
                                                             Jessica N. Hamilton
                                                             Travis W. Montgomery
                                                             Kopka Pinkus Dolin PC
                                                             Carmel, Indiana



                                              IN THE
     COURT OF APPEALS OF INDIANA

Jessica Whetstine, Barbara                                   December 28, 2020
Whetstine as Co-Guardian of the                              Court of Appeals Case No.
Limited Guardianship, and                                    19A-CT-2949
Christopher Whetstine as Co-                                 Appeal from the Vanderburgh
Guardian of the Limited                                      Circuit Court
Guardianship                                                 The Honorable David D. Kiely,
Appellants-Plaintiffs,                                       Judge
                                                             Trial Court Cause No.
         v.                                                  82C01-1210-CT-517

Menard, Inc., and Tyler R.
Norrenbrock, 1
Appellees-Defendants




1
 Tyler R. Norrenbrock does not participate in this appeal. However, a party before the trial court is a party
on appeal. See Indiana Appellate Rule 17(A) (“A party of record in the trial court . . . shall be a party on
appeal.”). We therefore include Norrenbrock’s name in the caption.

Court of Appeals of Indiana | Opinion 19A-CT-2949 | December 28, 2020                                    Page 1 of 22
      May, Judge.

[1]   Jessica Whetstine, Barbara Whetstine as Co-Guardian of the Limited

      Guardianship of Jessica Whetstine, and Christopher Whetstine as Co-Guardian

      of the Limited Guardianship of Jessica Whetstine (collectively, “the

      Whetstines”) appeal the trial court’s judgment in favor of Menard, Inc. 2

      (“Menard”). 3 The Whetstines present four issues, which we restate as:

                 1. Whether the trial court abused its discretion when it denied
                 the Whetstines’ motion for default judgment based on alleged
                 spoliation of evidence;


                 2. Whether the trial court abused its discretion when it denied
                 the Whetstines’ request to admit a photograph of an alleged
                 Menard truck; and


                 3. Whether the trial court abused its discretion when it denied
                 the Whetstines’ request for a proposed jury instruction regarding
                 res ipsa loquitur.


      We affirm.



                                Facts and Procedural History




      2
        The corporation name is “Menard” but the stores are called “Menards.” (See, e.g., App. Vol. II at 32
      (noting the name of the defendant as “Menard, Inc. a/k/a Menards”).)
      3
          The Whetstines do not appeal the trial court’s judgment in favor of Norrenbrock.


      Court of Appeals of Indiana | Opinion 19A-CT-2949 | December 28, 2020                            Page 2 of 22
[2]   On May 26, 2012, Jessica and her boyfriend, Tyler Norrenbrock, were traveling

      on a motorcycle on I-164 4 as they went from Louisville, Kentucky, to

      Newburgh, Indiana. Norrenbrock hit a wooden pallet in the middle of the road

      shortly after exiting I-164 at Lynch Road. The impact threw Jessica from the

      motorcycle.

[3]   Officer Mark Saltzman arrived at the scene and spoke with Norrenbrock, who

      was conscious. The crash report indicated Norrenbrock told officers he “saw a

      large object sail out of the back of the truck” and before he could “react, his

      motorcycle struck the pallet.” (Tr. Vol. II at 35.) Jessica was unconscious and

      sustained substantial injuries. Officer Michael Sides also arrived at the scene

      and noticed a wooden pallet that witnesses to the accident had moved to the

      side of the road. Officer Sides also observed a shipping label within the vicinity

      of the accident.

[4]   Local news broadcasted information about the accident the following morning.

      Nicholas Rebstock contacted police after seeing the news broadcast and told

      police that he had observed a wooden pallet on Interstate I-164 the night before.

      Rebstock reported that after he swerved to miss the item, he noticed a red or

      maroon pick-up truck with its back up lights activated as if it were backing up to

      retrieve the pallet. Employees of the local Menards store also saw a similar




      4
       I-164 has since been renamed to be a part of I-69. (See Tr. Vol. II at 60 (testimony regarding renaming of I-
      164).)

      Court of Appeals of Indiana | Opinion 19A-CT-2949 | December 28, 2020                             Page 3 of 22
      news report and called police to identify the shipping label found at the scene as

      one used by Menard.

[5]   On May 31, 2012, Detective Tony Mayhew investigated the case and contacted

      Menard Assistant Security Manager Paul Beutz. Detective Mayhew sent Beutz

      a picture of the shipping label and asked if Beutz could help with the

      investigation. Beutz identified the shipping label as one from “pollystyrene

      [sic][.]” (Tr. Vol. V at 40.) The shipping label was part of a delivery from a

      Menard distribution center in Holiday City, Ohio, to a Menards store in

      Owensboro, Kentucky, completed two weeks prior.

[6]   At Detective Mayhew’s request, Beutz also looked at the surveillance video for

      the Evansville Menards store shipping yard from day of the accident, searching

      specifically for a “pickup truck.” (Id. at 41.) Beutz found a pickup truck,

      captured a still picture of it, and then sent it to Detective Mayhew, who

      eventually contacted the owner of the truck and eliminated the truck as a

      vehicle that dropped the pallet. Detective Mayhew did not ask Beutz for any

      additional surveillance footage.

[7]   On October 1, 2012, Jessica filed a complaint against “John Doe” alleging

      Norrenbrock struck a wooden pallet in the middle of the highway that was

      negligently left there by an unknown party. (App. Vol. II at 28.) On May 23,

      2014, Jessica filed an amended complaint against Menard and Norrenbrock

      alleging she was injured when the motorcycle driven by Norrenbrock hit a

      wooden pallet in the middle of the interstate and the collision was a result of


      Court of Appeals of Indiana | Opinion 19A-CT-2949 | December 28, 2020    Page 4 of 22
      negligent conduct by Menard and Norrenbrock. Menard filed its answer and

      affirmative defenses to Jessica’s complaint on June 21, 2014.

[8]   On May 29, 2015, Menard filed a motion for summary judgment. On October

      9, 2015, Menard filed a supplemental brief in support of its motion for summary

      judgment. On January 1, 2016, Jessica filed her memorandum in opposition to

      Menard’s motion for summary judgment. On February 18, 2016, Menard filed

      its reply brief in support of its motion for summary judgment. On February 24,

      2016, the trial court held a hearing on Menard’s motion for summary judgment

      and denied the motion on February 29, 2016. 5

[9]   On February 27, 2019, the Whetstines filed a second amended complaint.

      Norrenbrock and Menard filed their answers on March 1 and March 19, 2019,

      respectively. On October 25, 2019, the Whetstines filed a motion for default

      judgment alleging spoliation of evidence or, alternatively, a request for a jury

      instruction regarding spoliation of evidence. In that motion, the Whetstines

      alleged Menard failed to preserve the surveillance video from its loading yard

      on May 26, 2012. Menard filed a motion opposing the Whetstines’ motion for

      default judgment on November 5, 2019. The trial court denied the Whetstines’




      5
        On June 8, 2017, the Warrick Circuit Court established a limited guardianship over Jessica, naming her
      parents, Christopher and Barbara, as her guardians. On July 17, 2017, Jessica filed a motion to substitute the
      Limited Guardianship as the plaintiff. On July 31, 2017, and August 1, 2017, Norrenbrock and Menard,
      respectively, filed objections thereto. Jessica filed a supplemental motion to substitute on December 13,
      2018, and Norrenbrock and Menard again objected. On February 4, 2019, the trial court entered an order
      allowing the co-guardians of the Limited Guardianship to be joined as parties in a representative capacity.

      Court of Appeals of Indiana | Opinion 19A-CT-2949 | December 28, 2020                             Page 5 of 22
       motion for default judgment during trial, prior to the presentation of evidence

       by Menard.

[10]   The parties filed their proposed preliminary jury instructions on November 8,

       2019, and their proposed final jury instructions on November 14, 2019. The

       trial court held a jury trial from November 11-15, 2019. During the jury trial,

       the Whetstines attempted to admit a photograph which they purported was a

       picture of a Menards enclosed trailer hauling behind it an open flatbed trailer

       stacked with wooden pallets. Menard objected, citing lack of foundation and

       lack of relevance. The trial court did not admit the evidence, finding that the

       Whetstines had not provided a proper foundation and the evidence was not

       relevant to the matter before the court. The jury returned a verdict in favor of

       Norrenbrock and Menard.



                                  Discussion and Decision
                                          1. Default Judgment
[11]   Our standard of review for a trial court’s decision regarding a default judgment

       is well-settled.

               The decision to grant or deny a motion for default judgment is
               within the trial court’s discretion. R.R. Donnelley & Sons Co. v. N.
               Tex. Steel Co., Inc., 752 N.E.2d 112, 126 (Ind. Ct. App. 2001),
               reh’g denied, trans. denied. We reverse only if the trial court’s
               decision is clearly against the logic and effect of the facts and
               circumstances. Id. The trial court’s discretion in granting or
               denying a motion for default judgment is considerable. Green v.
               Karol, 168 Ind. App. 467, 473, 344 N.E.2d 106, 110 (Ind. Ct.

       Court of Appeals of Indiana | Opinion 19A-CT-2949 | December 28, 2020          Page 6 of 22
               App. 1976). “The trial court should use its discretion to do what
               is ‘just’ in light of the unique facts of each case.” Allstate Ins. Co.
               v. Watson, 747 N.E.2d 545, 547 (Ind. 2001) (quoting In re Ransom,
               531 N.E.2d 1171, 1172 (Ind. 1988)).


       Progressive Ins. Co. v. Harger, 777 N.E.2d 91, 94 (Ind. Ct. App. 2002). “[A]

       default judgment is not generally favored, and any doubt of its propriety must

       be resolved in favor of the defaulted party.” Watson, 747 N.E.2d at 547

       (quoting Green, 168 Ind. App. at 474, 344 N.E.2d at 111). It is “an extreme

       remedy and is available only where that party fails to defend or prosecute a suit.

       It is not a trap to be set by counsel to catch unsuspecting litigants.” Id. at 547.


               On the one hand, a default judgment plays an important role in
               the maintenance of an orderly, efficient judicial system as a
               weapon for enforcing compliance with the rules of procedure and
               for facilitating the speedy determination of litigation. On the
               other hand, there is a marked judicial preference for deciding
               disputes on their merits and for giving parties their day in court,
               especially in cases involving material issues of fact, substantial
               amounts of money, or weighty policy determinations. The trial
               court, in its discretion, must balance these factors in light of the
               circumstances of each case.


       Green, 168 Ind. App. at 473, 344 N.E.2d at 110.


[12]   “Spoliation is a particular discovery abuse that involves the intentional or

       negligent destruction, mutilation, alteration, or concealment of physical

       evidence.” N. Ind. Pub. Serv. Co. v. Aqua Envtl. Container Corp., 102 N.E.3d 290,

       300 (Ind. Ct. App. 2018) (quoting Popovich v. Ind. Dep’t of State Revenue, 17

       N.E.3d 405, 410 (Ind. Tax Ct. 2014)). A party raising a claim of spoliation

       Court of Appeals of Indiana | Opinion 19A-CT-2949 | December 28, 2020        Page 7 of 22
       must prove “(1) there was a duty to preserve the evidence, and (2) the alleged

       spoliator either negligently or intentionally destroyed, mutilated, altered, or

       concealed the evidence.” Id. at 301. The Whetstines argue the trial court

       abused its discretion when it denied their motion for default judgment based on

       their allegation that Menard spoiled evidence when Menard did not preserve

       the surveillance video from its loading yard for the relevant time preceding the

       collision.

[13]   During his investigation of the collision, Detective Mayhew asked the Assistant

       Security Manager of Menard, Beutz, for information from the surveillance tape,

       specifically footage of any pickup truck that might have picked up pallets on

       May 26, 2012. Beutz sent Detective Mayhew a still screenshot of a pickup

       truck that picked up pallets that day. Detective Mayhew contacted the owner

       of the truck and eliminated the truck as the one that may have dropped a pallet

       on I-164. Detective Mayhew did not contact Beutz again, and the surveillance

       footage of May 26, 2012, was destroyed after ninety days pursuant to Menard

       company policy. Jessica named Menard as a defendant in her amended

       complaint on May 23, 2014, almost two years after the accident. The

       Whetstines contend Menard’s duty to preserve the surveillance footage “arose

       the moment Detective Mayhew spoke with Beutz.” (Br. of Appellants at 31.)

[14]   “The duty to preserve evidence occurs when a first-party claimant ‘knew, or at

       the very least, should have known, that litigation was possible, if not

       probable.’” Golden Corral Corp. v. Lenart, 127 N.E.3d 1205, 1217 (Ind. Ct. App.

       2019) (quoting N. Ind. Pub. Serv. Co., 102 N.E.3d at 301), trans. denied. This

       Court of Appeals of Indiana | Opinion 19A-CT-2949 | December 28, 2020     Page 8 of 22
       duty may exist prior to the commencement of a lawsuit. Id. at 1218. For

       example, in Golden Corral, our Court concluded that Golden Corral had a duty

       to preserve the buffet temperature logs because they were immediately put on

       notice of Lenart’s illness, which she claimed was caused by a foodborne

       pathogen, and Lenart’s attorney contacted Golden Corral within the ninety-day

       record retention period. Id.


[15]   Such is not the case here. Detective Mayhew contacted Beutz shortly after the

       accident, and Beutz reviewed the relevant surveillance footage, sending

       Detective Mayhew a still photograph of a truck on which pallets had been

       loaded. Detective Mayhew testified that he investigated the vehicle and

       determined it was not a vehicle of interest in the case. Detective Mayhew

       testified he did not instruct Beutz “to retain the video of the lumber yard” and

       did not “inform him that Menards was under investigation[.]” (Tr. Vol. II at

       100.) Detective Mayhew testified he “never reached back out to [Beutz] for

       additional information . . . once [he] received the information from him about

       the truck that left the lumber yard on May 26, 2012[.]” (Id.) 6




       6
         The Whetstines note two other instances in which a person associated with the investigation asked Menard
       employees for information and were referred to Menard’s corporate counsel. In the first instance,
       Norrenbrock’s mother spoke to the Evansville Menards store manager and was referred to corporate counsel.
       In the second, Larry Craddock, “a retired police officer, [who] was a friend of the Whetstine family and
       agreed to assist in the investigation[,]” (Appellants’ Br. at 13), spoke with the shipping supervisor in Holiday
       City, Ohio, and was referred to corporate counsel. However, the Whetstines do not indicate how an
       employee’s referral to corporate counsel when asked to provide information and documentation about
       specific incidents has any bearing on the duty to preserve unrelated evidence, specifically, the surveillance
       tape from the Evansville Menards store.

       Court of Appeals of Indiana | Opinion 19A-CT-2949 | December 28, 2020                              Page 9 of 22
[16]   Further, when Jessica filed her claim for damages arising from the accident in

       October 2012, she did not name Menard as a defendant. Instead, she indicated

       the proximate cause of her injuries from the collision “was negligent conduct on

       the part of unknown parties.” (App. Vol. II at 28.) She did not name Menard

       as a defendant until almost two years after the collision, on May 23, 2014.

       Menard had no way of knowing that it would be a party to Jessica’s claim; it

       would appear Jessica did not believe Menard to be responsible for her injuries

       when she filed her original claim. We cannot say Menard had notice that it

       would be subject to litigation at any time prior to its addition as a defendant in

       Jessica’s claim because no one contacted Beutz again after Beutz gave Detective

       Mayhew the still photograph from the lumber yard on the relevant date.

       Therefore, we conclude Menard did not have a duty to preserve the surveillance

       tape relevant to this case, and thus spoliation did not occur. 7


                                       2. Admission of Evidence
[17]   We review the trial court’s admission of evidence for an abuse of discretion.

       Henderson v. Henderson, 139 N.E.3d 227, 236 (Ind. Ct. App. 2019). An abuse of

       discretion occurs if the trial court’s decision is clearly against the logic and

       effect of the facts and circumstances before the court. Id. The Whetstines argue




       7
         As we hold Menard did not have a duty to preserve the surveillance video, there was not spoliation of
       evidence. Therefore, the Whetstines’ argument that the trial court abused its discretion when it did not give a
       jury instruction regarding spoliation fails because there was no evidence to support such an instruction. See
       Otter Creek Trading Co., Inc. v. PCM Enviro PRY, LTD, 60 N.E.3d 219, 226 (Ind. Ct. App. 2016) (trial court
       does not abuse its discretion when it denies a party’s request to include a jury instruction when there is no
       evidence to support the instruction), reh’g denied, trans. denied.

       Court of Appeals of Indiana | Opinion 19A-CT-2949 | December 28, 2020                            Page 10 of 22
       the trial court abused its discretion when it did not admit a photograph

       allegedly depicting a Menard truck with an enclosed trailer pulling an open

       flatbed trailer stacked with wooden pallets.

[18]   During trial, Menard called Stewart Hite, the general manager of the Menard’s

       store in Evansville, Indiana, as a witness. He testified that Menard did not use

       flatbed trailers to haul wooden pallets like the pallet found at the scene of the

       accident and that any unused pallets were loaded on enclosed trailers for

       shipping between stores. On cross-examination, the Whetstines attempted to

       admit a photograph they “obtained . . . just searching through Google images of

       Menards trucks.” (Tr. Vol. V at 73.) The image depicted a semi-trailer with the

       Menard logo on it hauling an open trailer of wooden pallets behind it. (Ex.

       Vol. II at 190.) The Whetstines wanted to use the image to impeach Hite’s

       testimony “that [Menard] did not transport pallets on flatbed trailers.” (Tr. Vol.

       V at 73.)

[19]   Menard objected, arguing the image was irrelevant because Hite could only

       testify as to how pallets are shipped out of the Evansville store and the

       Whetstines had not laid a foundation for the admission the photograph.

       Menard asserted, “[W]e have Google searched a picture with no

       authentication, no background, no information. We don’t know where it is.

       All we know is that’s a truck with a Menards logo pulling a flatbed of pallets.”

       (Id.) The Whetstines made an offer to prove, asking Hite questions about the

       image outside the presence of the jury. Hite testified the picture appeared to be

       fifteen to twenty years old and the semi-truck was owned by a “contract hauler”

       Court of Appeals of Indiana | Opinion 19A-CT-2949 | December 28, 2020       Page 11 of 22
       based on the “USDOT authorities and everything . . . on the side of the

       truck[.]” (Id. at 75.) Hite also testified that in 2012 Menards did not transport

       pallets on a flatbed trailer. The court denied the Whetstines’ request to admit

       the photograph, stating:

               Until you can lay a foundation that that photograph is relevant to
               the time we’re talking about, I’m not going to admit the
               photograph. So, if you want to make an offer to prove, you can
               put it in but I need foundation. The only evidence I have is that
               it’s not relevant at all to this time period.


       (Id. at 78.)


[20]   The Whetstines assert they laid a sufficient foundation for the photograph and

       it was relevant to the issue whether Menard used open flatbed trailers to haul

       wooden pallets. “To lay a foundation for the admission of evidence, the

       proponent of the evidence must show that it has been authenticated.” Hape v.

       State, 903 N.E.2d 977, 989 (Ind. Ct. App. 2009), trans. denied. Our Indiana

       Supreme Court explained the requirements for the admission of photographs

       for substantive evidence purposes over forty years ago:

               The “silent witness theory” for the admission of photographic
               evidence permits the use of photographs at trial as [s]ubstantive
               evidence, as opposed to merely demonstrative evidence. Thus,
               under the silent witness theory there is no need for a witness to
               testify a photograph accurately represents what he or she
               observed; the photograph “speaks for itself.” III J. Wigmore,
               Evidence s 790 (Chadbourn rev. 1970).


                                                     *****

       Court of Appeals of Indiana | Opinion 19A-CT-2949 | December 28, 2020       Page 12 of 22
               The foundation requirements for the admission of photographs as
               substantive evidence under the silent witness theory are
               obviously vastly different from the foundation required for
               demonstrative evidence. However, we feel it would be wrong to
               lay down extensive, absolute foundation requirements. Every
               photograph, the context in which it was taken, and its use at trial
               will be different in some respect. We therefore hold only that a
               [s]trong showing of the photograph’s competency and
               authenticity must be established. Whether a sufficiently strong
               foundation has been laid is left to the sound discretion of the trial
               court, reviewable only for abuse. However, we stress our use of
               the adjective “strong.” Photographs tend to have great probative
               weight and should not be admitted unless the trial court is
               convinced of their competency and authenticity to [a] relative
               certainty.


       Bergner v. State, 397 N.E.2d 1012, 1015-7 (Ind. Ct. App. 1979). “Our courts

       have consistently held this requires the testimony of a witness who can state the

       photograph is ‘a true and accurate representation of the things it is intended to

       depict.’” Id. at 1014.


[21]   Here, the Whetstines attempted to admit a photograph from the internet

       depicting what is purported to be a Menards tractor-trailer hauling two

       additional open bed trailers behind it. On one of the open bed trailers, there

       seem to be wooden pallets. The Whetstines did not indicate what site they used

       to obtain the photograph, except to state that they “obtained . . . [by] just search

       through Google images of Menards trucks.” (Tr. Vol. V. at 73.) The

       Whetstines did not establish a date the picture was taken, except that Hite

       testified he thought it was approximately fifteen to twenty years old. The

       Whetstines did not inform the court where the picture was taken, nor how,

       Court of Appeals of Indiana | Opinion 19A-CT-2949 | December 28, 2020     Page 13 of 22
       whether it be by an automatic camera such as a surveillance camera, or a

       personal camera. Based thereon, we cannot say the Whetstines established a

       “strong” showing of the photograph’s authenticity – in fact, they barely laid any

       competent foundation at all. Cf. Torres v. State, 442 N.E.2d 1021, 1024-5 (Ind.

       1982) (sufficient foundation laid for admission of photographs when evidence

       adduced photographs had not been altered, a witness identified the people in

       the photographs, a witness identified the place the photograph was taken based

       on her personal knowledge, and a witness approximated the date the

       photographs were taken).

[22]   Additionally, the image is irrelevant. Relevant evidence is “evidence having

       any tendency to make the existence of any fact that is of consequence to the

       determination of the action more probable or less probable than it would be

       without the evidence.” Evid. R. 401. Further, relevant evidence “may be

       excluded if its probative value is substantially outweighed by the danger of

       unfair prejudice, confusion of the issues, or misleading the jury, or by

       considerations of undue delay, or needless presentation of cumulative

       evidence.” Evid. R. 403.

[23]   Hite testified, “[t]his is a very old picture and that is a form of a you know split

       trailer with a van and a flatbed that was used - - I mean I’m really guessing here

       - that it’s at least 15 years old, at least, if not 20.” (Tr. Vol. V at 76.) The

       Whetstines did not present any additional information in their offer to prove to

       suggest the age of the photograph, specifically whether it depicted a Menard

       truck during the time period of the collision. Without information regarding

       Court of Appeals of Indiana | Opinion 19A-CT-2949 | December 28, 2020       Page 14 of 22
       when the picture was taken, where it was taken, and whether the truck was one

       that had ever actually been used by Menard, we cannot say that the picture was

       relevant. Moreover, its introduction would run the risk of confusing or

       misleading the jury when there was no evidence to suggest any such truck was

       in the Evansville area in the days, weeks, or months prior to the accident that

       injured Jessica. We therefore conclude the trial court did not abuse its

       discretion when it denied the Whetstines’ request to admit the photograph. See

       Ind. Evid. R. 402 (“[i]rrelevant evidence is not admissible”); and see Ind. Evid.

       R. 403 (trial court “may exclude relevant evidence if its probative value is

       substantially outweighed” by “confusing the issues” or “misleading the jury”).


                                           3. Jury Instructions
[24]   At the conclusion of the trial, the Whetstines proposed the following jury

       instruction:

               There are certain situations in which the nature of an incident
               and the circumstances surrounding it lead to the reasonable belief
               that it would not have occurred unless someone did not use
               reasonable care.


               If the Plaintiff proves all of the following by the greater weight of
               the evidence:


                        (1)      The Plaintiff was injured when the vehicle operated
                                 by Tyler Norrenbrock struck a pallet on I-164;


                        (2)      Only the Defendant Menard, Inc. controlled the
                                 pallet; and

       Court of Appeals of Indiana | Opinion 19A-CT-2949 | December 28, 2020      Page 15 of 22
                        (3)      Under normal circumstances, the collision with the
                                 pallet would not have occurred unless Defendant
                                 Menard, Inc. was negligent,


               then you may infer that the incident resulted from Defendant
               Menard, Inc.’s negligence. You may consider this inference with
               all of the other evidence in arriving at your verdict.


       (App. Vol. IV at 112.) The language of the proposed instruction is nearly

       identical to Indiana Civil Model Jury Instruction 325 for res ipsa loquitur. The

       trial court denied the Whetstines’ request to include the proposed instruction.

       The Whetstines argue the trial court abused its discretion in doing so because

       the instruction was supported by evidence.

[25]   Instructing the jury is a matter assigned to the sound discretion of the trial

       court. Burdick v. Romano, 148 N.E.3d 335, 340 (Ind. Ct. App. 2020). We

       review the court’s decision only for an abuse of discretion. Humphrey v. Tuck,

       132 N.E.3d 512, 515 (Ind. Ct. App. 2019). When we review a trial court’s

       refusal of a tendered instruction, we consider: 1) whether the tendered

       instruction is a correct statement of the law; 2) whether there is evidence in the

       record to support the instruction; and 3) whether the substance of the

       instruction is covered by other instructions given by the court. Otter Creek

       Trading Co., Inc. v. PCM Enviro PRY, LTD, 60 N.E.3d 219, 226 (Ind. Ct. App.

       2016), reh’g denied, trans. denied. Jury instructions are intended to inform the

       jury of the law applicable to the facts without misleading the jury and to enable

       the jury to comprehend the case clearly and arrive at a just, fair and correct

       verdict. Centennial Mortg., Inc. v. Blumenfeld, 745 N.E.2d 268, 278 (Ind. Ct. App.
       Court of Appeals of Indiana | Opinion 19A-CT-2949 | December 28, 2020      Page 16 of 22
       2001). Accordingly, a trial court properly rejects an instruction that would

       “mislead or confuse the jury.” Burdick, 148 N.E.3d at 340.


[26]   The doctrine of res ipsa loquitur

               literally means “the thing speaks for itself.” Shull v. B.F. Goodrich
               Co., 477 N.E.2d 924, 926 (Ind. Ct. App. 1985), trans. denied. Res
               ipsa loquitur is a rule of evidence which permits an inference of
               negligence to be drawn based upon the surrounding facts and
               circumstances of the injury. K-Mart Corp. v. Gipson, 563 N.E.2d
               667, 669 (Ind. Ct. App. 1990), trans. denied. The doctrine
               operates on the premise that negligence, like any other fact or
               condition, may be proved by circumstantial evidence. Id. To
               create an inference of negligence, the plaintiff must establish: (1)
               that the injuring instrumentality was within the exclusive
               management and control of the defendant or its servants, and (2)
               that the accident is of the type that does not ordinarily happen if
               those who have the management and control exercise proper
               care. Id. In determining if the doctrine is applicable, the
               question is whether the incident more probably resulted from
               defendant’s negligence as opposed to another cause. Id. A
               plaintiff may rely upon common sense and experience or expert
               testimony to prove that the incident more probably resulted from
               negligence. Vogler v. Dominguez, 624 N.E.2d 56, 61 (Ind. Ct.
               App. 1993), trans[.] denied. To invoke res ipsa loquitur, the
               plaintiff must demonstrate that the defendant had exclusive
               control of the injuring instrumentality at the time of injury.
               Aldana v. Sch. City of E. Chicago, 769 N.E.2d 1201, 1207 (Ind. Ct.
               App. 2002), trans. denied. Exclusive control is an expansive
               concept which focuses upon who has the right or power of
               control and the opportunity to exercise it. Shull, 477 N.E.2d at
               933.


       Rector v. Oliver, 809 N.E.2d 887, 889-90 (Ind. Ct. App. 2004), trans. denied. It is

       undisputed that the Whetstines’ tendered instruction was a correct statement of
       Court of Appeals of Indiana | Opinion 19A-CT-2949 | December 28, 2020      Page 17 of 22
       the law and that the substance of the res ipsa loquitur instruction was not

       covered by any other instruction tendered to or given by the court. Thus, the

       issue before us is whether there existed evidence to support giving such an

       instruction. When determining whether to allow a party to include a jury

       instruction regarding res ipsa loquitur, the trial court must decide as a matter of

       law “whether the plaintiff has produced evidence from which a jury could

       reasonably find the existence of both of the underlying elements of res ipsa

       loquitur: exclusive control and probability of negligence.” Vogler, 624 N.E.2d at

       61. “There only need be evidence and reasonable inferences therefrom, which,

       when viewed in the light most favorable to the proponent, would support the

       jury verdict contained in the instruction.” Sharp v. LaBrec, Inc., 642 N.E.2d 990,

       993 (Ind. Ct. App. 1994).

[27]   The Whetstines argue the facts before us are akin to those in Pittsburgh,

       Cincinnati, Chicago & Saint Louis Railway Co. v. Hoffman, 57 Ind. App. 431, 107

       N.E. 315 (1914). In that case, Hoffman, a train watchman, was struck in the

       head by a piece of coal that fell from a passenger train traveling westbound on a

       temporary track. Id. at 435, 107 N.E. at 316-7. The passenger train and the

       temporary track were both owned and maintained by the Railway Company.

       Id. at 435, 107 N.E. at 316. At trial, the trial court permitted a jury instruction

       regarding res ipsa loquitur, and the jury returned a verdict in favor of Hoffman.

       Id. at 440, 107 N.E. at 318.


[28]   The Railway Company appealed, arguing in part that Hoffman had not

       presented sufficient evidence to support a jury instruction on the doctrine of res

       Court of Appeals of Indiana | Opinion 19A-CT-2949 | December 28, 2020     Page 18 of 22
       ipsa loquitur. Our court affirmed the trial court’s decision to permit the

       instruction, stating regarding the sufficiency of the evidence:

               [Hoffman] was struck by a piece of coal, and the jury, as we have
               said, were warranted in finding that such coal came from the
               tender; but there is no circumstance proven, which as mere
               matter of circumstantial evidence connects the fact of the falling
               of the coal with any human agency. But the tender and the
               engine and the coal thrown, and the handling and management
               of all these, were under the exclusive control of [Railway
               Company’s] servants. We do not believe that coal properly and
               carefully loaded on an engine properly handled, keeping in view
               the nature of the track, would ordinarily fall from such tender
               upon persons near the track. It is in such a situation that the
               maxim res ipsa loquitur supplements circumstantial evidence, by
               raising a presumption from such facts unexplained that there was
               negligence in the loading or handling of the coal.


       Id. at 450, 107 N.E. at 321.


[29]   Here, taking the evidence most favorable to the Whetstines, we agree that

       Jessica’s injury was caused when Norrenbrock struck the pallet situated in the

       middle of the road. There is no reason the pallet would be in the middle of the

       road except for it falling off of something transporting that pallet, which would,

       circumstantially, lead one to believe that the pallet was not properly loaded on

       that vehicle. Thus, the first element of res ipsa loquitur – that is, that the

       incident could not have happened if those who had management and control

       had exercised proper care – is satisfied. See Farmer v. Werner Transportation Co.,

       152 Ind. App. 609, 615, 284 N.E.2d 861, 865 (1972) (holding the “unexplained



       Court of Appeals of Indiana | Opinion 19A-CT-2949 | December 28, 2020      Page 19 of 22
       presence of an air compressor on a traveled highway” is sufficient to support

       one of the elements of res ipsa loquitur).

[30]   However, the facts most favorable to the Whetstines here diverge from those in

       Hoffman as they pertain to whether the item that injured Jessica, that is, the

       pallet, was within the exclusive management and control of Menard. In

       Hoffman, the injured watchman Hoffman saw the passenger train owned and

       maintained by the Railway Company carrying the coal as it passed him on the

       temporary track. Hoffman, 57 Ind. App. at 435, 107 N.E. at 316-7. Here, there

       is no evidence that Jessica, Norrenbrock, or any witness saw the pallet leave a

       truck with a Menard logo or a vehicle that could be traced in any way to

       Menard.

[31]   We confronted a similar issue in Farmer, where Farmer, a truck driver, was

       injured when his truck hit an air compressor on the side of the road. Farmer,

       152 Ind. App. at 614, 284 N.E.2d at 865. As noted supra, we concluded that the

       presence of an air compressor on the side of the highway was sufficient to

       support the negligence portion of the res ipsa loquitur analysis. Id. at 615, 284

       N.E.2d at 865. In support of the other element of res ipsa loquitur – proof of

       exclusive control of the instrumentality which caused the injury – Farmer

       presented evidence that he (1) had been following a truck with the word

       “Werner” on its side and (2) the air compressor involved in the collision with

       Farmer and “a companion air compressor across the road located in another

       part of the highway were later picked up by representatives of . . . Werner.” Id.

       at 614, 284 N.E.2d at 865. We held that evidence was “absolutely and

       Court of Appeals of Indiana | Opinion 19A-CT-2949 | December 28, 2020   Page 20 of 22
       completely inadequate upon an essential element of the concept of res ipsa

       loquitur, namely, proof of exclusive control” by Werner. Id. at 615, 284 N.E.2d

       at 865.


[32]   There exists even less evidence here than in Farmer, where we held res ipsa

       loquitur could not be invoked. Here, there is no evidence any vehicle owned or

       controlled by Menard was in the immediate area where the collision occurred.

       The Whetstines rely heavily on the label found near the collision site, which

       was later identified as one belonging to Menard. However, if we analogize the

       label to the air compressor in Farmer, the label here provides significantly less

       indication that Menard was in exclusive control of the pallet in this collision

       because the label was from a product that was not shipped on wooden pallets

       and was part of a shipment traveling through the area two weeks prior to the

       collision. Therefore, based on Farmer, we cannot say that a label, found near

       the scene of the collision, for a product not found at the scene of the collision,

       would satisfy the requirement for res ipsa loquitur that the evidence most

       favorable to the Whetstines indicate that Menard had exclusive control over the

       pallet Norrenbrock struck. Therefore, the trial court did not abuse its discretion

       when it denied the Whetstines’ request to include a jury instruction regarding

       res ipsa loquitur.



                                                Conclusion
[33]   The trial court did not abuse its discretion when it denied the Whetstines’

       motion for default judgment based on spoliation of evidence because Menard

       Court of Appeals of Indiana | Opinion 19A-CT-2949 | December 28, 2020     Page 21 of 22
       did not have a duty to preserve the relevant surveillance video. Additionally,

       the trial court did not abuse its discretion when it did not admit the Whetstines’

       proffered picture of an alleged Menard truck. Finally, the trial court did not

       abuse its discretion when it denied the Whetstines’ proffered jury instruction

       regarding res ipsa loquitur because there was no evidence that Menard had

       exclusive control over the pallet at issue. Accordingly, we affirm.

[34]   Affirmed.

       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CT-2949 | December 28, 2020   Page 22 of 22