APPEAL FROM THE MARION SUPERIOR COURT. The Honorable David A. Shaheed, Judge. Cause No. 49D01-1209-CT-37100.
ATTORNEY FOR APPELLANT: NEAL F. EGGESON, JR., Eggeson Appellate Services, Indianapolis, Indiana.
ATTORNEY FOR APPELLEE: JENNA C. LOWER, Law Offices of the Liberty Mutual Group, Carmel, Indiana.
BROWN, Judge. BARNES, J., and BRADFORD, J., concur.
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 bye 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.
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."
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 it was taken did not mean it anticipated litigation at that time, and that Dawson had ...