FOR PUBLICATION
                                                                         Oct 22 2014, 9:46 am




ATTORNEY FOR APPELLANT:                       ATTORNEY FOR APPELLEE:

NEAL F. EGGESON, JR.                          JENNA C. LOWER
Eggeson Appellate Services                    Law Offices of the Liberty Mutual Group
Indianapolis, Indiana                         Carmel, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

MARGARET DAWSON,                              )
                                              )
      Appellant-Plaintiff,                    )
                                              )
             vs.                              )       No. 49A02-1403-CT-208
                                              )
THORNTON’S, INC.,                             )
                                              )
      Appellee-Defendant.                     )


                   APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable David A. Shaheed, Judge
                          Cause No. 49D01-1209-CT-37100



                                   October 22, 2014


                             OPINION - FOR PUBLICATION


BROWN, Judge
       Margaret Dawson appeals from judgment in favor of Thornton’s, Inc., following a

jury trial. Dawson raises one issue, which we revise and restate as whether the trial court

erred or abused its discretion in not instructing the jury regarding spoliation of evidence.

We affirm.

                        FACTS AND PROCEDURAL HISTORY

       In the early afternoon on October 22, 2010, Dawson visited Thornton’s in

Speedway, Indiana, and walked inside the store and paid for gasoline for her motorcycle.

After paying, she walked from the cashier back toward the door to exit and tripped on the

corner of a mat located on the floor immediately inside the door. She fell and sustained

injuries requiring surgery. At some point at least four weeks after her fall, Dawson

returned to Thornton’s and inspected the mat. She attempted to take a picture of the mat

with her cell phone “but it was not a usable picture.” Transcript at 72. In March 2012,

Thornton’s replaced the mat.

       On September 20, 2012, Dawson filed a complaint for damages alleging that

Thornton’s was negligent for its failure to maintain a safe and clear passage for customers

entering and exiting the store and that she suffered significant injury to her shoulder and

right arm. During the jury trial, Thornton’s moved to admit a photograph of the mat

which had been taken by the store manager immediately after Dawson’s fall. Dawson’s

counsel objected and argued that Thornton’s was using a photograph to show the

condition of something when she had not been allowed to inspect the original. The court

ordered a brief recess so that the parties could present their arguments outside the

presence of the jury related to the admission of the photograph and the issue of spoliation.


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       Dawson’s counsel argued that the best evidence was the original mat, that Dawson

disputed “the condition that [Thornton’s was] trying to allege that the mat was in,” and

that Dawson should have been allowed to inspect and have an expert look at the mat. Id.

at 134. Dawson’s counsel further argued: “They destroyed the mat, they got rid of it, and

then they want to bring in a photograph to prove the condition of the mat, and all the

while they’re arguing to the Jury that [] Dawson can’t prove what was wrong with the

mat.” Id. at 134-135. Counsel for Thornton’s argued that Dawson had an opportunity to

and did inspect the mat and that she took photographs of it weeks after she fell. Counsel

for Thornton’s further argued that the mat was replaced in 2012 and that “[i]t was more

than a year [and] a half . . . period of time that [Dawson] could have requested the mat,

inspected the mat.” Id. at 135. Counsel for Thornton’s also maintained that Dawson’s

“prior counsel sent a letter to Thornton[’s] requesting the [store’s] video, but never

mentioned the mat. No request for the mat was never [sic] made.” Id.

       Dawson’s counsel responded that spoliation “comes into play if [Thornton’s]

knew that a piece of evidence was going to be at issue,” that “[l]itigation doesn’t

necessarily have to be pending,” and that, “quite frankly, the fact that [Thornton’s] took a

photo of the corner of the mat is all the evidence you need that they knew that the

condition of the corner of the mat was going to be at issue that day.” Id. at 136-137. The

court noted that “this also impacts the final instructions, because [Dawson was] seeking

spoliation,” and Dawson’s counsel noted its proposed instruction regarding spoliation of

evidence. Id. at 137. Counsel for Thornton’s stated that the photograph was taken as part

of the investigation by Thornton’s at the time, that it was normal procedure, that the fact


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it was taken did not mean it anticipated litigation at that time, and that Dawson had plenty

of time and opportunity to request and inspect the mat before it was replaced.

       The court noted that Dawson’s proposed instruction stated: “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.” Appellant’s Appendix at

166. The court then stated that “to specifically [] be able to invoke the spoliation rule,

there has to be some specific notice to preserve, and that from my understanding has not

been done,” that nevertheless “it is prejudicial in the Court’s view for [Thornton’s] to

introduce the photograph while this issue of spoliation is in the air,” that if Thornton’s

wanted to use the photograph the court would give Dawson’s proposed jury instruction,

and that if Thornton’s did not use the photograph Dawson would not be entitled to her

proposed instruction. Id. at 139-140. Thornton’s then agreed to withdraw its request to

admit the photograph. Later when reviewing final jury instructions, the court noted it had

refused Dawson’s proposed instruction regarding spoliation of evidence. The jury found

Thornton’s was not at fault, and the court later entered judgment in favor of Thornton’s.

                                      DISCUSSION

       The issue on appeal is whether the trial court erred or abused its discretion in not

instructing the jury regarding spoliation of evidence. The purpose of jury instructions is

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

enable it to comprehend the case clearly and arrive at a just, fair and correct verdict.

Blocher v. DeBartolo Props. Mgmt, Inc., 760 N.E.2d 229, 235 (Ind. Ct. App. 2001),

trans. denied.   In reviewing a trial court’s decision to give or refuse a tendered


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instruction, it must be determined whether the instruction: (1) correctly states the law; (2)

is supported by the evidence in the record; and (3) is covered in substance by other

instructions. Wal-Mart Stores, Inc. v. Wright, 774 N.E.2d 891, 893 (Ind. 2002), reh’g

denied. If the challenge to a jury instruction is that it does not correctly state the law, we

will review the instruction de novo, but if the challenge is that the instruction is not

supported by the evidence in the record or that the substance is not covered by other

instructions, we will reverse only if the trial court has abused its discretion. Id. at 893-

894.

       To find an abuse of discretion, it must be determined that the instructions as a

whole misstate the law or otherwise mislead the jury. Smock Materials Handling Co. v.

Kerr, 719 N.E.2d 396, 402 (Ind. Ct. App. 1999). Errors with regard to instructions are

harmless and do not require reversal where the verdict would have been no different had

the jury been properly instructed. Id. In addition, we will not reverse a court’s decision

not to give a proposed instruction unless the substantial rights of the proposing party

would be prejudiced by the failure to give the instruction. See Dollar Inn, Inc. v. Slone,

695 N.E.2d 185, 190 (Ind. Ct. App. 1998) (citing Captain & Co. v. Stenberg, 505 N.E.2d

88, 97 (Ind. Ct. App. 1987), trans. denied, trans. denied), reh’g denied, trans. denied.

       Dawson contends that, by refusing to instruct the jury on spoliation of evidence,

the trial court “essentially dictated the outcome of the trial” and that, “[a]s the condition

of the floor mat was the sole contested issue at trial, the trial court’s refusal to allow any

argument, discussion, or adverse inference regarding the absence of the floor mat left the

jury with no choice but to conclude Thornton’s had done nothing wrong.” Appellant’s


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Brief at 7. Dawson argues that her tendered instruction satisfied the three requirements

and that the court’s failure to give the instruction warrants a new trial. She also argues

that the court’s error affected her substantial rights, that any question of fact surrounding

the issue of spoliation should have been determined by the jury and not the court, and that

equity requires this court to recognize an independent cause of action for spoliation of

evidence and rule that she may pursue a first-party spoliation claim against Thornton’s.

Thornton’s maintains that Dawson waived her claim by failing to object to the trial

court’s ruling not to instruct the jury on spoliation of evidence, that there was not

sufficient evidence to support a spoliation instruction, and that Dawson cannot establish

that her substantial rights were impaired. It also argues Dawson is not entitled to a new

cause of action against Thornton’s.

       In Porter v. Irvin’s Interstate Brick & Block Co., this court stated:

               In Indiana, the exclusive possession of facts or evidence by a party,
       coupled with the suppression of the facts or evidence by that party, may
       result in an inference that the production of the evidence would be against
       the interest of the party which suppresses it. While this rule will not be
       carried to the extent of relieving a party of the burden of proving his case, it
       may be considered as a circumstance in drawing reasonable inferences from
       the facts established. The rule not only applies when a party actively
       endeavors to prevent disclosure of facts, but also when the party merely
       fails to produce available evidence. These cases are directed to a party
       which has suppressed evidence believed to be in its control at the time of
       the law suit; however, we see no reason why they should not be applied
       where the party spoliates evidence prior to the commencement of a law suit
       that the party knew or should have known was imminent.

691 N.E.2d 1363, 1364-1365 (Ind. Ct. App. 1998) (citations and internal quotation marks

omitted).




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       In Cahoon v. Cummings, the Indiana Supreme Court stated that “[s]poliation of

evidence consists of ‘the intentional destruction, mutilation, alteration, or concealment of

evidence, usually a document. If proved, spoliation may be used to establish that the

evidence was unfavorable to the party responsible.’” 734 N.E.2d 535, 545 (Ind. 2000)

(quoting BLACK’S LAW DICTIONARY 1409 (7th ed. 1999)). In Gribben v. Wal-Mart

Stores, Inc., in addressing a certified question regarding whether Indiana law recognizes a

claim for first-party spoliation of evidence, the Court held that, “[n]otwithstanding the

important considerations favoring the recognition of an independent tort of spoliation by

parties to litigation, we are persuaded that these are minimized by existing remedies and

outweighed by the attendant disadvantages,” and “[w]e thus determine the common law

of Indiana to be that, if an alleged tortfeasor negligently or intentionally destroys or

discards evidence that is relevant to a tort action, the plaintiff in the tort action does not

have an additional independent cognizable claim against the tortfeasor for spoliation of

evidence under Indiana law.” 824 N.E.2d 349, 355 (Ind. 2005).

       The instruction proposed by Dawson was not supported by the admitted evidence.

The record reveals that, at some point at least four weeks after the accident, Dawson

returned to Thornton’s, inspected the mat, and attempted to take a photograph of the mat

using her cell phone, but the photograph was not usable. In addition, while Dawson’s

previous counsel sent a letter to Thornton’s requesting the store’s video recording of the

incident, no request was made with respect to the mat. Dawson tripped on the mat in

Thornton’s on October 22, 2010, and, according to the testimony of the manager at

Thornton’s and an interrogatory answer provided by Thornton’s, the mat was replaced in


                                              7
March 2012, over one year and four months after Dawson’s fall.1 During this period,

Dawson and her counsel had ample opportunity to inspect and document the condition of

the mat upon which she tripped, have an expert inspect the mat, or request that the mat be

preserved.    Further, Dawson has not made a showing that Thornton’s concealed or

suppressed any of the facts or evidence regarding the mat from her.

       Based upon the record, we cannot say the trial court erred or abused its discretion

in not giving Dawson’s proposed instruction regarding spoliation of evidence or that the

substantial rights of Dawson were prejudiced by the court not giving her proposed

instruction. See Underwood v. Gale Tschuor Co., 799 N.E.2d 1122, 1134 (Ind. Ct. App.

2003) (holding that the trial court did not abuse its discretion by finding that the evidence

presented at trial did not support the giving of a spoliation of evidence instruction where

the defendant did not paint the counterweight at issue until nine months after the

accident), trans. denied. Additionally, we decline Dawson’s request to recognize an

independent cause of action for spoliation of evidence. See Gribben, 824 N.E.2d at 355

(holding that, if an alleged tortfeasor negligently or intentionally destroys or discards

evidence that is relevant to a tort action, the plaintiff in the tort action does not have an



       1
          In an August 2013 answer to interrogatories, counsel for Thornton’s stated the mat upon which
Dawson tripped “was replaced with a Water Hog mat in 2011.” Appellant’s Appendix at 125. In an
October 2013 answer to subsequent interrogatories, counsel for Thornton’s stated: “The mat which is the
subject of the instant suit was replaced with a Water Hog mat in March 2012. [Thornton’s] originally
stated in 2011, however upon further investigation it found that the correct year was 2012.” Id. at 134.
Thornton’s attached an Order Confirmation dated March 8, 2012, for the purchase of a “WATERHOG
MAT.” Id. at 139. The manager at Thornton’s testified that a new mat was purchased in March 2012.
On cross-examination, the manager was asked if she had a reason to dispute the interrogatory answer that
the mat was replaced in 2011, and the manager testified: “No, it could have been replaced twice. I’m not
positive.” Transcript at 148. On redirect, when asked if the mat was ever replaced before March of 2012
and after Dawson’s fall, the manager testified “[n]ot that I’m aware of,” and she indicated she had been
the manager of the store for that entire time. Id. at 151.
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additional independent cognizable claim against the tortfeasor for spoliation of evidence

under Indiana law).

                                    CONCLUSION

      For the foregoing reasons, we affirm the trial court’s judgment.

      Affirmed.

BARNES, J., and BRADFORD, J., concur.




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