ILNews

Justices: Jeans require new trial

Jennifer Nelson
January 1, 2008
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The Indiana Supreme Court vacated a judgment in favor of a plaintiff who claimed he was injured by slipping on diesel fuel at a gas station, because of a pair of jeans introduced as evidence on the first day of trial. Those jeans, which the plaintiff said he was wearing the day of the accident, were introduced by the plaintiff without communicating the discovery to the opposing party.

In Speedway SuperAmerica, LLC v. Gerald and Madeline Holmes, No. 45S05-0711-CV-258, Speedway appealed the trial court decision and Indiana Court of Appeals affirmation denying Speedway's motion to correct error and for relief from judgment under Indiana Trial Rules 59 and 60 and its request for relief under T.R. 60(B)(2) alleging newly discovered evidence.

Gerald and Madeline Holmes were traveling to Michigan in his refrigerated truck. On June 1, 2000, Gerald pulled his truck up to a fuel island at a truck stop and he slipped on what he described as diesel fuel, fell to the ground, and twisted his knee and hurt his back.

Gerald then changed his clothes, took a shower, and left the truck stop. The next day in Michigan, still in pain, he stopped at an emergency room for treatment. The injury has required him to undergo physical therapy, epidural injections for back pain, and knee surgery.

In November 2001, the Holmes filed a complaint for damages against the owner of the truck stop, Speedway SuperAmerica. Three weeks before trial, the Holmes' new attorney asked if they still had the pair of jeans and boots Holmes was wearing the day of the accident. The couple found what they believed to be the jeans and boots in their barn, where their son put them after cleaning out the contents of the truck.

On the first day of trial, Dec. 13, 2004, when Gerald was called as a witness, his attorney asked if he still had the jeans and he answered he found them in the summer. The attorney then stated he was giving notice to Speedway's attorney so that the jeans and boots could be displayed during Madeline's testimony. Speedway's attorney didn't object during trial but objected over the introduction of the evidence during a bench conference while the jury was on recess. The trial court allowed for the jeans and boots to be introduced as evidence but prohibited any testimony or inference the stain was diesel fuel.

The $1,125,000 awarded to Gerald was reduced to $562,600 because the jury found Speedway and Gerald each bore 50 percent liability.

Speedway filed its motions to correct error and for relief, and also a motion to test the jeans. The trial court granted only the motion to test the jeans.

Speedway's testing concluded that the jeans didn't have diesel fuel on them and the jeans' label shows the jeans weren't made as of June 1, 2000 and likely weren't manufactured until April 2001. After testing, the trial court denied Speedway's motion for a new trial.

Speedway is entitled to a new trial under T.R. 60(B)(2), ruled the high court, because the test results of the jeans proved Speedway met the nine requirements the Supreme Court has found are needed to order a new trial: evidence has been discovered since the trial; it is material and relevant; it is not cumulative; it is not merely impeaching; it is not privileged or incompetent; due diligence was used to discover it in time for trial; the evidence is worthy of credit; it can be produced upon a retrial of the case; and it will probably produce a different result at retrial, wrote Justice Theodore Boehm.

Although the plaintiffs argue Speedway didn't exercise due diligence in this case, the Supreme Court believes Speedway did. Speedway had asked for all exhibits the plaintiff intends to offer at trial, but that only yielded medical records. Also, it was the plaintiffs who discovered the jeans days before the trial and kept that information from Speedway, so the Supreme Court can't say that failing to request a continuance was a failure to exercise due diligence to discover the new evidence developed in a post-trial setting, wrote Justice Boehm.

The Supreme Court remanded the case with instructions to vacate the judgment and schedule a new trial.
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  1. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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