Morris v. K-Mart, Inc.
| Decision Date | 13 October 1993 |
| Docket Number | No. 73A05-9209-CV-338,K-MAR,INC,73A05-9209-CV-338 |
| Court | Indiana Appellate Court |
| Parties | Jackalyne MORRIS and Darrell Morris, Appellants-Plaintiffs, v., Appellee-Defendant. |
John J. Sullivan, Indianapolis, for appellant.
John L. Lisher, Osborn Hiner & Lisher P.C., Indianapolis, for appellee.
Plaintiff Jackalyne Morris initiated a negligence action to recover for personal injuries sustained when she slipped and fell while shopping in a K-Mart store. She alleged that K-Mart negligently failed to maintain its floor in a safe condition. Darrell Morris, Jackalyne Morris' husband, alleged loss of consortium as a result of his wife's injuries. The cause was tried to a jury and a verdict in favor of K-Mart, Inc., was returned.
The Morrises appeal the judgment entered on the verdict contending that their tendered Instruction No. 1 was a correct statement of the law and the refusal of the trial court to give it to the jury was reversible error.
We affirm.
On March 30, 1987, Jackalyne Morris went to a K-Mart store to purchase wallpaper. She placed several rolls in her cart and went to the housewares department. While in that department, she stepped away from her cart to look at an item and when she returned to the cart her right foot slipped on a piece of plastic. She fell, causing injuries to her right hip and leg. She testified that the object on which she slipped was similar to the hook of a small plastic clothes hanger. She was helped to the front of the store where she gave the piece of plastic to a store employee who later identified it as a "shelf talker," a device which is attached to and suspended from a shelf to display sales goods. The K-Mart employee testified that he gave the piece of plastic to a member of K-Mart's security force and the item had been lost. Therefore, K-Mart did not introduce it at trial.
At trial, Mrs. Morris introduced a piece of plastic hanger stating that it was similar in size and color to the item causing her fall, and also introduced a drawing to illustrate the item. K-Mart introduced a "shelf talker" to illustrate to the jury the item it states was given to it by Mrs. Morris immediately after the fall.
Because the item allegedly causing the fall was not available for introduction at trial and was last in the possession of K-Mart, the Morrises submitted the following as their Tendered Instruction No. 1:
The unexplained failure of a [sic] K-Mart, Inc., to produce the object on which Jackalyne Morris allegedly fell may give rise to an inference that the production of said object would have been unfavorable to the cause of K-Mart, Inc.
The trial court refused to give this instruction and the Morrises contend that the refusal to give it was reversible error because it was a correct statement of the law.
The giving of jury instructions is a duty entrusted to the discretion of the court and the trial court's decision will not be disturbed except where there is an abuse of that discretion. Underly v. Advance Mach. Co. (1993), Ind.App., 605 N.E.2d 1186, reh'g denied, trans. denied. A party is normally entitled to have a tendered instruction read to the jury. We will reverse the trial court for failure to give a tendered instruction if: (1) the instruction is a correct statement of the law; (2) it is supported by the evidence; (3) it does not repeat material adequately covered by other instructions; and (4) the substantial rights of the tendering party would be prejudiced by the failure to give the instruction. Id. at 1191 (citing Miller Brewing Co. v. Best Beers of Bloomington, Inc. (1991), Ind.App., 579 N.E.2d 626, 635, reh'g denied ).
The Morrises argue that their tendered instruction is based on Indiana Pattern Jury Instruction No. 3.11, which instruction reads as follows:
Instruction No. 3.11. Failure to Produce Evidence
The unexplained failure of a party [to testify concerning facts peculiarly within his...
To continue reading
Request your trial
-
Garwood v. State
...adequately covered by other instructions, and the failure prejudiced the tendering party's substantial rights. Morris v. K-Mart, Inc. , 621 N.E.2d 1147, 1148 (Ind. Ct. App. 1993), trans. denied .[107] The instruction was not supported by evidence, and failure to give it did not prejudice th......
-
Leon v. Caterpillar Indus., Inc.
...court and the trial court's decision will not be disturbed except where there is an abuse of that discretion," Morris v. K-Mart, Inc., 621 N.E.2d 1147, 1148 (Ind.App. 5 Dist.1993) (citation omitted), and "[i]n a diversity case, the validity of the jury instruction is determined by state law......
-
McGarrity v. Berlin Metals, Inc.
...(citing Marshall v. Clark Equip. Co., 680 N.E.2d 1102, 1104 (Ind.Ct.App.1997), trans. denied (1998); Morris v. K-Mart, Inc., 621 N.E.2d 1147, 1148 (Ind.Ct.App.1993), trans. denied (1994)). In determining whether the trial court erroneously refused a tendered instruction, we consider: (1) wh......
-
Dughaish ex rel. Dughaish v. Cobb
...of the trial court, and its decision will not be disturbed unless there is an abuse of that discretion. Morris v. K-Mart, Inc., 621 N.E.2d 1147, 1148 (Ind.Ct.App.1993), trans. denied. A party is generally entitled to have a tendered instruction read to the jury. Id. On review, we will rever......