COA affirms photo, expert testimony in slip-and-fall case but reverses $4M verdict

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A trial court did not abuse its discretion in admitting photographic evidence and expert testimony in a case involving a woman who slipped on ice in a Menards parking lot, the Court of Appeals of Indiana has ruled. However, the Court of Appeals reversed a multimillion-dollar verdict.

Marilyn Terew sued Menards and a snow removal company after she slipped and fell on an ice-filled depression in the parking lot of a Menards store in Avon in February 2019. She alleged Menards and the snow removal company breached the duty of care they owed to protect her from the hazardous conditions.

A jury in the Hendricks Superior Court found Terew was entitled to recover $4 million in damages — $3.8 million against Menards and $200,000 against Fisher’s Lawn Care and Snow Removal LLC.

Menards filed a motion to correct error, arguing the sum of Terew’s special damages as stipulated by the parties was $40,503.09, and the record was devoid of evidence justifying the verdict. The trial court denied the motion.

On appeal, Menards challenged the trial court’s admission of a photograph for evidence and of expert testimony, as well as the court’s denial of the motion to correct error.

The Court of Appeals affirmed the trial court’s decisions on the first two challenges but agreed with Menards that the $4 million verdict was excessive.

At trial, a man who testified he was with Terew said he took photographs on the day of Terew’s fall. Menards objected to the admission of the photographs based on relevance, arguing they were taken days after the incident. The court overruled the objection, ruling photographs don’t have to be of “complete and total accuracy.”

Menards specifically appealed as to Exhibit 5, arguing it was a photograph depicting Menards’ parking lot allegedly taken after Terew fell, showing the parking lot clear of snow except for a lone icy patch in a parking space near where she fell.

The store argued Terew’s counsel asked the jury to conclude that if ice existed there at some later date, it must have been there on the date Terew fell. The photo was apparently taken March 5, 2019, 23 days after Terew’s fall.

But the Court of Appeals ruled it could not say that the challenged photograph was not relevant or that its probative value was substantially outweighed by a danger of unfair prejudice or misleading the jury.

The appeal next turned to testimony from a forensic engineer who said he reviewed the photographs and weather information and used that analysis — along with a visit to the site — to determine there was ice in the depression when Terew fell.

Menards argued that the trial court erred in permitting the forensic engineer to “create facts from inferences as needed” to prove Terew’s case, and that his testimony “prejudiced the jury by presenting unsupported speculation delivered under the luster of ‘expert opinion.’”

But the Court of Appeals disagreed, ruling the trial court didn’t abuse its discretion by allowing the testimony.

Menards did win a reversal in arguing that the trial court erred in denying its motion to correct error and that Terew offered no evidence to justify the multimillion-dollar verdict.

The store argued Terew stipulated that her total special damages amounted to about $40,500 and that she offered no evidence of uncontrolled pain, job loss, or a plan for continuing or future medical care. Menards also argued Terew’s counsel “openly speculated” about the store’s daily profits.

According to the Court of Appeals, the parties agreed and stipulated that the amount billed to Terew for treatment totaled about $81,240, and her medical providers accepted about $31,255 as full satisfaction of the bills. Terew’s lost wages from a department store job came to $2,420, and she lost almost $7,000 in wages from her job at a school.

Terew indicated she stopped taking a narcotic pain reliever in approximately March 2019 and that since then, if she needs pain relief, she takes ibuprofen once a day. Terew’s surgeon discharged her in August 2019 and didn’t put limitations on her activities.

Menards argued the $4 million verdict was excessive and not based on a reasoned assessment, and the Court of Appeals agreed, electing to grant a new trial on the issue of damages.

Judge Elaine Brown wrote the opinion. Judges Leanna Weissmann and L. Mark Bailey concurred.

The case is Menard, Inc. v. Marilyn K. Terew, 22A-CT-1679.

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