COA affirms judgment to Menard, Inc. following motorcycle crash

The Indiana Court of Appeals has affirmed a judgment favoring Menard, Inc. following a Southern Indiana motorcycle crash that occurred when a couple hit a wooden pallet in the middle of the road, injuring one rider.

While traveling on a motorcycle from Louisville to Newburgh, Indiana, Jessica Whetstine and Tyler Norrenbrock hit a wooden pallet in the middle of the road, which threw Jessica from the bike and caused her substantial injuries.

Officers at the scene noticed a wooden pallet that witnesses to the accident had moved to the side of the road, as well as a shipping label near the accident. Employees of a local Menards store later called police to identify the shipping label found at the scene as one used by Menard.

Whetstine eventually sued Menard and Norrenbrock, alleging she was injured from the accident and that the collision was a result of negligent conduct by Menard and Norrenbrock. During a jury trial, the Whetstines attempted to admit a photograph which they argued was a picture of a Menards enclosed trailer hauling behind it an open flatbed trailer stacked with wooden pallets.

Menard objected, citing lack of foundation and lack of relevance. The trial court did not admit the photo, finding that the Whetstines had not provided a proper foundation and the evidence was not relevant to the matter before the court.

The jury ultimately returned a verdict in favor of Norrenbrock and Menard, prompting the Whetstines to appeal. But the Indiana Court of Appeals affirmed in Jessica Whetstine, Barbara Whetstine as Co-Guardian of the Limited Guardianship, and Christopher Whetstine as Co-Guardian of the Limited Guardianship v. Menard, Inc., and Tyler R. Norrenbrock, 19A-CT-2949.

The appellate court first found that the trial court did not abuse its discretion when it denied the Whetstines’ motion for default judgment based on spoliation of evidence because Menard did not have a duty to preserve the relevant surveillance video.

“We cannot say Menard had notice that it would be subject to litigation at any time prior to its addition as a defendant in Jessica’s claim because no one contacted (Menard Assistant Security Manager Paul Beutz) again after Beutz gave Detective (Tony) Mayhew the still photograph from the lumber yard on the relevant date,” Judge Melissa May wrote for the appellate court.

The appellate court also found no issue with the trial court’s decision not to admit the photo presented by the Whetstines from the Internet depicting an alleged Menards tractor-trailer hauling two additional open-bed trailers behind it. Without information regarding when the picture was taken, where it was taken, and whether the truck was one that had ever actually been used by Menard, the appellate court concluded that the picture was not relevant.

On the final issue of the res ipsa loquitur jury instruction, the appellate court concluded that there is no evidence any vehicle owned or controlled by Menard was in the immediate area where the collision occurred. It noted that there was even less evidence in the case at hand than that in Farmer v. Werner Transportation Co., 152 Ind. App. 609, 615, 284 N.E.2d 861, 865 (1972).

“Therefore, based on Farmer, we cannot say that a label, found near the scene of the collision, for a product not found at the scene of the collision, would satisfy the requirement for res ipsa loquitur that the evidence most favorable to the Whetstines indicate that Menard had exclusive control over the pallet Norrenbrock struck. Therefore, the trial court did not abuse its discretion when it denied the Whetstines’ request to include a jury instruction regarding res ipsa loquitur,” it concluded.

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