ILNews

Justices: Jeans require new trial

Jennifer Nelson
January 1, 2008
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
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.
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

ADVERTISEMENT