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. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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