Whetstine v. Menard, Inc.
| Decision Date | 28 December 2020 |
| Docket Number | Court of Appeals Case No. 19A-CT-2949 |
| Citation | 161 N.E.3d 1274 |
| Parties | Jessica WHETSTINE, Barbara Whetstine as Co-Guardian of the Limited Guardianship, and Christopher Whetstine as Co-Guardian of the Limited Guardianship, Appellants-Plaintiffs, v. MENARD, INC., and Tyler R. Norrenbrock, Appellees-Defendants |
| Court | Indiana Appellate Court |
Attorney for Appellants: Matthew J. McGovern, Anderson, Indiana
Attorneys for Appellee Menard Inc.: Leslie B. Pollie, Jessica N. Hamilton, Travis W. Montgomery, Kopka Pinkus Dolin PC, Carmel, Indiana
[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:
We affirm.
[2] On May 26, 2012, Jessica and her boyfriend, Tyler Norrenbrock, were traveling on a motorcycle on I-1644 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 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 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' 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.
[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. 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 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 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...
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