Walter Griffin, Jr., and Candus Griffin v. Menard, Inc. and Briggs Plumbing, LLC (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                               FILED
regarded as precedent or cited before any                                 Oct 20 2020, 8:43 am

court except for the purpose of establishing                                   CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANTS                                 ATTORNEYS FOR APPELLEE,
Jeffrey J. Stesiak                                       MENARD, INC.
James P. Barth                                           Karl J. Veracco
Pfeifer, Morgan & Stesiak                                Larry L. Barnard
South Bend, Indiana                                      Carson LLP
                                                         Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Walter Griffin, Jr., and Candus                          October 20, 2020
Griffin,                                                 Court of Appeals Case No.
Appellants-Plaintiffs,                                   20A-CT-310
                                                         Appeal from the Elkhart Superior
        v.                                               Court
                                                         The Honorable Stephen R.
Menard, Inc. and Briggs                                  Bowers, Judge
Plumbing, LLC,                                           Trial Court Cause No.
Appellee-Defendants.                                     20D02-1603-CT-56




Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CT-310 | October 20, 2020                    Page 1 of 18
                                       Statement of the Case

[1]   Walter (“Walter”) and Candus Griffin (“Candus”) (collectively, “the Griffins”)

      appeal the trial court’s grant of summary judgment in favor of Menard, Inc.

      (“Menard”). This appeal originates from a complaint filed by the Griffins

      alleging premises liability negligence and loss of consortium based on an

      incident at Menard wherein the bottom of a box containing a sink opened when

      Walter pulled the box off the shelf, and the sink fell on Walter.


[2]   The Griffins argue that the trial court erred by granting summary judgment in

      favor of Menard. Specifically, they argue that: (1) Menard failed to negate the

      breach of duty element of their premises liability negligence claim because

      questions of fact exist as to whether Menard had knowledge of the defectively

      packaged sink on its shelf; (2) there was a presumption of negligence created

      under the doctrine of res ipsa loquitur; and (3) there was an inference of

      negligence created under the doctrine of spoliation.


[3]   We conclude that, based on the evidence designated to the trial court, Menard

      failed in its initial burden of showing the absence of a genuine issue of material

      fact regarding whether it had actual or constructive knowledge of whether the

      particular sink box was defective. Additionally, Menard failed to meet its initial

      burden of showing an absence of material fact on the Griffins’ res ipsa loquitur

      claim. However, we conclude that Menard met its burden of negating an

      element of the Griffins’ spoliation claim. Accordingly, we affirm the grant of

      summary judgment in favor of Menard on the spoliation claim and reverse the

      Court of Appeals of Indiana | Memorandum Decision 20A-CT-310 | October 20, 2020   Page 2 of 18
      grant of summary judgment with respect to the Griffins’ claims of premises

      liability negligence and res ipsa loqutur.


[4]   We affirm in part, reverse in part, and remand.


                                                      Issue

              Whether the trial court erred in granting summary judgment in
              favor of Menard.

                                                     Facts

[5]   The facts most favorable to the Griffins, the non-moving party in this summary

      judgment action, reveal that on May 31, 2015, the Griffins were shopping at a

      Menard home improvement store in Elkhart, Indiana. The Griffins were

      interested in purchasing a new bathroom vanity sink. After seeing a model that

      they liked, Walter grabbed the box that contained the desired sink. The box

      was located on the second shelf. Walter reached up and grabbed the two

      handles on the box and began to remove the box from the shelf. As Walter

      pulled the box off the shelf, the bottom part of the box opened, and the sink fell

      on Walter. Walter sustained injuries to the right side of his neck, right

      shoulder, and right foot.


[6]   On March 9, 2016, the Griffins filed a complaint for damages against Menard,

      claiming premises liability negligence and loss of consortium. On July 30,

      2018, Menard filed a third-party complaint against Briggs Plumbing Products,

      LLC, who had manufactured and boxed the sink. On May 1, 2019, Menard


      Court of Appeals of Indiana | Memorandum Decision 20A-CT-310 | October 20, 2020   Page 3 of 18
filed a motion for summary judgment and a supporting brief. In support of its

motion, Menard designated portions of depositions given by Walter and

Candus and an affidavit by Brent Bahr (“Bahr”), the Menard store’s general

manager whom Menard had selected as the most knowledgeable person to

respond about the May 31 incident and store policies and procedures. In the

designated portion of Walter’s deposition, he acknowledged that he had not

noticed that the staples were loose on the bottom of the sink box. In his

affidavit, Bahr stated that “[i]t is the policy and practice of Menards that if there

is any problem with the box or packaging of any item, they are not to be placed

upon the shelves for sale.” (App. Vol. 2 at 77). He further declared that “[i]f a

Mendards’ employee would [have] notice[d] . . . any defect or other issue with

regard to the boxes containing the Briggs Plumbing sinks, that employee would

not have placed the sink with the defective packaging on the shelf.” (App. Vol.

2 at 77). Bahr also stated that “Menards had no prior notice of any defect or

problem with the box containing the Briggs Plumbing sink involved in the

incident involving Walter[,]” and that he had “never received any notice of and

[was] not aware of any circumstances where a sink manufactured by Briggs . . .

ha[d] fallen through the bottom of its box.” (App. Vol. 2 at 77). Relying

primarily on Walter’s deposition testimony and Bahr’s affidavit, Menard

argued that it was entitled to summary judgment on the Griffins’ premises

liability negligence claim because it “had no actual or constructive notice of any

dangerous condition which led to Walter[’s] . . . injur[ies].” (App. Vol. 2 at 62).




Court of Appeals of Indiana | Memorandum Decision 20A-CT-310 | October 20, 2020   Page 4 of 18
[7]   In the Griffins’ summary judgment response, they argued that Menard’s motion

      for summary judgment should be denied because there: (1) were issues of

      material fact regarding Menard’s constructive knowledge; (2) was a clear

      inference of negligence under the doctrine of res ipsa loquitur; and (3) was an

      inference of negligence under the doctrine of spoliation.


[8]   The Griffins first argued that the trial court should deny Menard’s summary

      judgment motion because Menard had “failed to designate any evidence that it

      exercised reasonable care or attempted to discover the danger but was unable to

      do so.” (App. Vol. 2 at 89). The Griffins’ designated evidence included Bahr’s

      deposition, wherein he testified about Menard general practices, policies, and

      procedures. Bahr first explained that employees are trained to identify defective

      merchandise. Specifically, if there is defective merchandise:


              whether it’s received off of incoming trucks before it goes to the
              floor or once it’s on the floor, you know, team members doing
              their cleaning and, you know, walking by products, if they see
              something unsafe, damaged, unsellable, we have a defect program
              in place to take that merchandise off the shelf and bill it back to
              the vendor.

      (App. Vol. 2 at 128).


[9]   Additionally, Bahr testified that Menard has “general practices” of end-of-the-

      night “front and facing” and daily “sectioning.” (App. Vol. 2 at 129). The

      front and facing practice requires employees to go through every aisle every

      night to “bring every product forward, clean it, front it, [and] face it.” (App.

      Vol. 2 at 129). Bahr explained that the sectioning practice entails breaking up

      each of Menard’s sales departments into sections to “thoroughly detail each
      Court of Appeals of Indiana | Memorandum Decision 20A-CT-310 | October 20, 2020   Page 5 of 18
       section where [employees] would, 4 foot at a time, inspect every product in that

       section, dust it, clean it, bring it forward, make sure that section is perfect. And

       we do a section a day in every department and rotate.” (App. Vol. 2 at 130).

       The employee responsible for sectioning is supposed to inspect every product

       from “left to right.” (App. Vol. 2 at 130). Bahr further explained that Menard

       provides “maps that correlate the dates of the month with what section we

       should be doing that day.” (App. Vol. 2 at 130). However, Bahr stated that the

       “map . . . [is] a guideline. It doesn’t necessarily mean that zone was done that

       day.” (App. Vol. 2 at 154). Bahr further explained that he did not have a “way

       to verify if a department did that section or who did that section that day.”

       (App. Vol. 2 at 130).


[10]   The Griffins’ designated portion of Bahr’s deposition also included Menard’s

       standard procedure for dealing with an incident. Bahr explained that

       employees are required to fill out an incident report and gather as much

       information as possible from the claimant. The employee is then supposed to

       check the cameras to see if any surveillance video footage captured the incident

       and save the footage. Bahr testified that in relation to the May 31, 2015

       incident, neither he nor his employees had investigated whether there had been

       any surveillance video footage of the incident. Furthermore, Bahr admitted

       that Menard employees do not always follow the policies. Additionally, he

       stated that there is no formal policy that requires employees to read the policies.


[11]   The Griffins next argued that under the doctrine of res ipsa loquitur, “the

       designated facts and reasonable inferences drawn therefrom show that

       Court of Appeals of Indiana | Memorandum Decision 20A-CT-310 | October 20, 2020   Page 6 of 18
       [Menard] had the management and control of its store, the stocking of the

       shelves, and the inspection for and removal of defective products.” (App. Vol.

       2 at 91). As a result, they contended that summary judgment was inappropriate

       because there was a clear inference of negligence. Finally, the Griffins argued

       that Menard’s “failure to follow its own procedures resulted in the deletion and

       loss of any relevant video footage.” (App. Vol. 2 at 92). Therefore, the Griffins

       alleged that Menard’s summary judgment motion was precluded based on a

       spoliation inference.


[12]   Thereafter, Menard filed its reply to the Griffins’ summary judgment response.

       Menard argued that: (1) the Griffins had failed to show an issue of material fact

       regarding whether it had actual or constructive knowledge of the defective

       condition of the box at issue; (2) the doctrine of res ipsa loquitur was not

       applicable because the box was not in Menard’s exclusive control at the time of

       the accident; and (3) the doctrine of spoliation was not applicable because the

       Menard store did not have a camera in the specific area of the plumbing

       department that would have recorded the incident in question. As

       supplemental designated evidence, Menard attached its’ responses to

       interrogatories and a portion of Bahr’s deposition. In relevant part, Menard’s

       responses stated:


               INTERROGATORY NO. 2: When was the last time the section
               in which the sink was stocked had been “faced/shelved” or
               stocked.

               ANSWER: Menards’ Daily Manager’s Responsibilities (To-Do
               Lists and Department Closing Checklist) – Policy & Procedure
               #204 requires the team members to inspect and reface all
       Court of Appeals of Indiana | Memorandum Decision 20A-CT-310 | October 20, 2020   Page 7 of 18
               inventory at least every 8 days. Each area of the store is broken
               down into 8 specific sections which are inspected and refaced
               every day on a rotating basis. Thus, every 8 days all inventory in
               the entire area is inspected and refaced. There are no records
               maintained pertaining to the inspection and refacing of the
               areas/sections.

               INTERROGATORY NO. 3: When was the sink received by
               Menards, stocked.

               ANSWER: Unknown.

               INTERROGATORY NO. 4: How long had the sink been on the
               shelf.

               ANSWER: Unknown.

                                                       * * *

               INTERROGATORY NO. 6: At the time of the incident, was
               there surveillance coverage of the aisle where the incident is
               alleged to have occurred?

               ANSWER: No.

       (App. Vol. 2 at 182-83). Bahr’s designated deposition testimony explained that

       there was no surveillance video recorded of the incident on May 31, 2015, the

       stocking of the Briggs Plumbing box on the shelf, or the receiving dock where

       inventory is received. Bahr further explained that the surveillance cameras have

       changed since 2015.


[13]   The trial court conducted a hearing and granted summary judgment to Menard.

       Thereafter, the trial court amended its summary judgment, making it a final

       appealable order. The Griffins now appeal. We will add additional facts when

       necessary.


                                                   Decision
       Court of Appeals of Indiana | Memorandum Decision 20A-CT-310 | October 20, 2020   Page 8 of 18
[14]   The Griffins argue that the trial court erred by granting summary judgment to

       Menard because: (1) Menard failed to negate the breach of duty element of

       their premises liability negligence claim because questions of fact exist as to

       whether it had knowledge of the defectively packaged sink on its shelf; (2) there

       was a presumption of negligence created under the doctrine of res ipsa loquitur;

       and (3) there was an inference of negligence created under the doctrine of

       spoliation. We will address each argument in turn.


       1. Actual or Constructive Knowledge


[15]   The Griffins first argue that the trial court erred in granting summary judgment

       in favor of Menard because there were questions of fact as to whether Menard

       had knowledge of its inventory’s defective packaging. Our standard of review is

       well-settled.


               We review summary judgment de novo, applying the same
               standard as the trial court: “Drawing all reasonable inferences in
               favor of . . . the non-moving parties, summary judgment is
               appropriate ‘if the designated evidentiary matter shows that there
               is no genuine issue as to any material fact and that the moving
               party is entitled to judgment as a matter of law.’” Williams v.
               Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
               fact is ‘material’ if its resolution would affect the outcome of the
               case, and an issue is ‘genuine’ if a trier of fact is required to resolve
               the parties’ differing accounts of the truth, or if the undisputed
               material facts support conflicting reasonable inferences.” Id.
               (internal citations omitted).

               The initial burden is on the summary-judgment movant to
               “demonstrate[ ] the absence of any genuine issue of fact as to a
               determinative issue,” at which point the burden shifts to the non-
               movant to “come forward with contrary evidence” showing an
               issue for the trier of fact. Id. at 761-62 (internal quotation marks

       Court of Appeals of Indiana | Memorandum Decision 20A-CT-310 | October 20, 2020   Page 9 of 18
               and substitution omitted). And “[a]lthough the non-moving party
               has the burden on appeal of persuading us that the grant of
               summary judgment was erroneous, we carefully assess the trial
               court’s decision to ensure that he was not improperly denied his
               day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys., 916
               N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
               omitted).

       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to

       Hughley).


[16]   We emphasize that summary judgment is a “high bar” for the moving party to

       clear in Indiana. Id. at 1004. “In particular, while federal practice permits the

       moving party to merely show that the party carrying the burden of proof [at

       trial] lacks evidence on a necessary element, we impose a more onerous burden:

       to affirmatively ‘negate an opponent’s claim.’” Id. at 1003 (quoting Jarboe v.

       Landmark Comm. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994)).


[17]   Here, the Griffins filed their complaint against Menard claiming premises

       liability, which is rooted in negligence. In order to recover under a theory of

       negligence, the Griffins must establish: (1) the existence of a duty on the part of

       Menard to conform its conduct to a standard of care arising from its

       relationship with Walter; (2) Menard’s failure to conform its conduct to the

       requisite standard of care; and (3) an injury to Walter proximately caused by

       Menard’s breach. Mayfield v. Levy Co., 833 N.E.2d 501, 505 (Ind. Ct. App.

       2005). Generally, “‘[a] negligence action is rarely an appropriate case for

       disposal by summary judgment’” because “‘issues of negligence, causation, and

       reasonable care are most appropriately left for a determination of the trier of


       Court of Appeals of Indiana | Memorandum Decision 20A-CT-310 | October 20, 2020   Page 10 of 18
       fact.’” Id. (quoting Guy’s Concrete, Inc. v. Crawford, 793 N.E.2d 288, 293 (Ind.

       Ct. App. 2003), trans. denied).


[18]   Neither party disputes that, at the time of the incident, Walter was a business

       invitee of Menard. “Under Indiana’s premises liability law, a landowner owes

       the highest duty to an invitee: the duty to exercise reasonable care for his

       protection while he is on the landowner’s premises.” Converse v. Elkhart Gen.

       Hosp., 120 N.E.3d 621, 625 (Ind. Ct. App. 2019). Indiana has adopted the

       Restatement (Second) of Torts Section 343, which defines the scope of the duty

       a landowner owes to an invitee on its property as follows:


             A possessor of land is subject to liability for physical harm caused to
             his invitees by a condition on the land if, but only if, he

               (a) knows or by the exercise of reasonable care would discover the
               condition, and should realize that it involves an unreasonable risk
               of harm to such invitees, and

               (b) should expect that they will not discover or realize the danger,
               or will fail to protect themselves against it, and

               (c) fails to exercise reasonable care to protect them against the
               danger.

       Id. (quoting Restatement (Second) of Torts § 343 (1965)). Each of the three

       conditions set forth in Section 343 must be met for liability to attach. Harradon

       v. Schlamadinger, 913 N.E.2d 297, 301 (Ind. Ct. App. 2009), trans. denied.


[19]   Additionally, an invitee is “entitled to expect that the possessor will take

       reasonable care to ascertain the actual condition of the premises and, having

       discovered it, either to make it reasonably safe by repair or to give warning of


       Court of Appeals of Indiana | Memorandum Decision 20A-CT-310 | October 20, 2020   Page 11 of 18
       the actual condition and the risk involved.” Merrill v. Knauf Fiber Glass GmbH,

       771 N.E.2d 1258, 1265 (Ind. Ct. App. 2002) (citing Restatement (Second) of

       Torts § 343, cmt. d), trans. denied. While a landowner’s duty to a business

       invitee includes a duty to exercise reasonable care to protect the invitee from

       foreseeable dangers on the premises, there is no duty to insure a business

       invitee’s safety while on the premises. Schulz v. Kroger Co., 963 N.E.2d 1141,

       1144 (Ind. Ct. App. 2012). “As an invitor is not the insurer of the invitee’s

       safety, and before liability may be imposed on the invitor, it must have actual or

       constructive knowledge of the danger.” Id. We have defined constructive

       knowledge as a “‘condition [which] has existed for such a length of time and

       under such circumstances that it would have been discovered in time to have

       prevented injury if the storekeeper, his agents or employees had used ordinary

       care.’” Id. (quoting Wal-Mart Stores, Inc. v. Blaylock, 591 N.E.2d 624, 628 (Ind.

       Ct. App. 1992), trans. denied).


[20]   Here, because Walter was a business invitee at the time of the incident on

       Menard’s premises, Menard owed Walter the duty of care set out above. The

       Griffins argue that Menard is not entitled to summary judgment because it

       failed to negate the breach of duty element of their negligence claim based on

       premises liability. Specifically, the Griffins argue that questions of fact exist as

       to whether Menard had knowledge of the defectively packaged sink on its shelf.

       Menard maintains that the designated evidence shows that it did not have

       actual or constructive knowledge of any dangerous condition which led to

       Walter’s injury. We agree with the Griffins.


       Court of Appeals of Indiana | Memorandum Decision 20A-CT-310 | October 20, 2020   Page 12 of 18
[21]   As the moving party in this summary judgment action, Menard had the burden

       to negate an element of the Griffins’ claim by establishing that no genuine

       issues of material fact exist regarding the element. See Jarboe, 644 N.E.2d at

       123. More specifically, Menard had the burden of showing, as a matter of law,

       the absence of a genuine issue of material fact relating to breach of its duty to

       Walter when he was an invitee on Menard’s premises.


[22]   The trial court granted Menard’s motion for summary judgment after finding

       that the undisputed facts established that Menard did not have actual or

       constructive knowledge that the sink’s box was defective. In making its ruling,

       the trial court relied on the following evidence:


               General Manager Brent Bahr, who had been employed with
               Menard, Inc. since 2000, had “never received any notice of and
               was not aware of any circumstances where a sink manufactured by
               Briggs Plumbing had fallen through the bottom of its box.”
               Employees would not place any sinks with defective packages
               onto the store’s shelves. Furthermore, “Menards had no prior
               notice of any defect or problem with the box containing the Briggs
               Plumbing sink involved in the incident[.]”

       (App. Vol. 2 at 21-22) (internal citations omitted).


[23]   However, there is conflicting evidence. Some evidence shows that “[i]t is the

       policy and practice of Menards that if there is any problem with the box or

       packaging of any item, they are not to be placed upon the shelves for sale.”

       (App. Vol. 2 at 77). But this is contradicted by Bahr’s testimony that Menard

       does not have a formal policy requiring that employees read the policies. As

       such, he admitted that Menard employees do not always follow proper


       Court of Appeals of Indiana | Memorandum Decision 20A-CT-310 | October 20, 2020   Page 13 of 18
       procedures. Furthermore, Menard failed to designate evidence showing that

       this particular box had been inspected. Moreover, in response to the Griffins’

       interrogatories, Menard indicated that it had no knowledge regarding when the

       sink at issue had been received or how long it had been on the shelf. The only

       designated evidence of investigative measures taken by Menard was that its

       employees are supposed to inspect all inventory in an entire area every eight

       days. According to Bahr, he could not verify if, or when, the section where the

       sink fell on Walter had last been inspected.


[24]   In support of its summary judgment claim, Menard draws our attention to

       Gasser Chair Co., Inc. v. Nordengreen, 991 N.E.2d 122 (Ind. Ct. App. 2013). In

       Gasser, a casino patron was injured when the adjustable chair she was sitting on

       collapsed due to a failed gas cylinder in the chair. She sued both the casino and

       the chair manufacturer. The trial court granted summary judgment to the

       casino on the patron’s premises liability claim and denied summary judgment

       to the chair manufacturer. The chair manufacturer then appealed the trial

       court’s grant of summary judgment to the casino, arguing in part that there

       were genuine issues of fact regarding the casino’s knowledge of the defective

       nature of the chair on its premises. This Court affirmed the grant of summary

       judgment to the casino, which had negated the element regarding its knowledge

       of a dangerous condition on its premises. We concluded that there was no

       genuine issue of fact that the casino had actual or constructive knowledge that

       the chair was a dangerous condition on its premises. Gasser, 991 N.E.2d 126-

       27. In reaching this decision, we explained that the chairs were inspected daily,


       Court of Appeals of Indiana | Memorandum Decision 20A-CT-310 | October 20, 2020   Page 14 of 18
       no problems had been reported with the chair the patron had used, that the

       chair manufacturer had not warned the casino about the danger of the gas

       cylinder suddenly falling, and that although there had been some previous

       problems with a very small percentage of chairs at the casino, none of those

       problems had caused injuries. Id. at 127.


[25]   The facts of Gasser can be distinguished from the facts of this case.

       Significantly, unlike in Gasser where the chairs were inspected daily, there was

       no evidence designated establishing when the defective box had last been

       inspected. Indeed, Bahr stated that he could not verify if, or when, the section

       where the sink fell on Walter had last been inspected. Furthermore, Bahr

       testified that employees do not always follow Menard’s own policies. Because

       the defective box was on the shelf for an unspecified period of time, there

       remains a question of fact regarding whether Menard had actual or constructive

       knowledge that the sink box was a dangerous condition on its premises.


[26]   Viewing this evidence in light of the facts most favorable to the Griffins, the

       non-movants, we must conclude that Menard has failed to meet its initial

       burden of negating the breach of duty element of the Griffins’ negligence claim

       based on premises liability. See, e.g., Sinner v. Kindred Hosp. Ltd. P’ship, 51

       N.E.3d 1184, 1189 (Ind. 2016) (noting that under Indiana law, summary

       judgment movant has the burden of affirmatively negating an opponent’s

       claim).


       2. Res Ipsa Loquitor


       Court of Appeals of Indiana | Memorandum Decision 20A-CT-310 | October 20, 2020   Page 15 of 18
[27]   Next, the Griffins argue that there is a presumption of negligence under the

       doctrine of res ipsa loquitur. Res ipsa loquitur is translated from Latin as “the

       thing speaks for itself.” Gary Cmty. Sch. Corp. v. Lardydell, 8 N.E.3d 241, 247

       (Ind. Ct. App. 2014), trans. denied. Res ipsa loquitur is a rule of evidence that

       permits an inference of negligence to be drawn based upon the surrounding

       facts and circumstances of the injury. Johnson v. Blue Chip Casino, LLC, 110

       N.E.3d 375, 378 (Ind. Ct. App. 2018), trans. denied. Under res ipsa loquitur,

       negligence may be inferred where: (1) the injuring instrumentality is shown to

       be under the management or exclusive control of the defendant or his servants;

       and (2) the accident is such that in the ordinary course of things does not

       happen if those who have management of the injuring instrumentality use

       proper care. Volger v. Dominguez, 624 N.E.2d 56, 61 (Ind. Ct. App. 1993), reh’g

       denied, trans. denied. To invoke res ipsa loquitur, the plaintiff must demonstrate

       that the defendant had exclusive control of the injuring instrumentality at the

       time of the injury. Rector v. Oliver, 809 N.E.2d 887, 890 (Ind. Ct. App. 2004).

       “The element of ‘exclusive control’ is an expansive concept which focuses upon

       who has the right or power of control to exercise it, rather than actual physical

       control.” Volger, 624 N.E.2d at 61 (internal citations omitted). Further,

       exclusive control is satisfied if the defendant had control at the time of the

       alleged negligence. Id. at 61-62.


[28]   In this summary judgment proceeding, Menard argued, and the trial court

       found, that the Griffins “cannot establish that Menards was in exclusive control

       of the defective box at the time of the incident at issue in this case.” (App. Vol.

       Court of Appeals of Indiana | Memorandum Decision 20A-CT-310 | October 20, 2020   Page 16 of 18
       2 at 171). However, “[m]erely alleging that the plaintiff has failed to produce

       evidence on each element of [his cause of action against the defendant] is

       insufficient to entitle the defendant to summary judgment under Indiana law.”

       Jarboe, 644 N.E.2d at 123. As the moving party, Menard had the burden to

       negate the control element. Id. The designated evidence demonstrates that

       Menard had the management and control of its premises. Moreover, Menard

       also had the power to control the stocking of the shelves, and the inspection and

       removal of defective products. These details leave open an issue of material fact

       as to the element of exclusive control.


       3. Spoliation


[29]   Last, the Griffins argue that the trial court erred by granting summary judgment

       to Menard on the Griffins’ spoliation theory, and they contend that designated

       evidence created an inference of negligence under the doctrine of spoliation.

       “Spoliation is a particular discovery abuse that involves the intentional or

       negligent destruction, mutilation, alteration, or concealment of physical

       evidence.” N. Ind. Pub. Serv. Co. v. Aqua Envtl. Container Corp., 102 N.E.3d 290,

       300 (Ind. Ct. App. 2018) (internal quotation omitted). A party raising a claim

       of spoliation must prove that (1) there was a duty to preserve the evidence, and

       (2) the alleged spoliator either negligently or intentionally destroyed, mutilated,

       altered, or concealed the evidence. Id. at 301.


[30]   Here, Menard designated evidence showing that there was not a camera in the

       Menard store that could have captured video of the incident. Specifically,


       Court of Appeals of Indiana | Memorandum Decision 20A-CT-310 | October 20, 2020   Page 17 of 18
       Menard’s responses to interrogatories stated that, at the time of the incident,

       there was no surveillance coverage of the aisle where the incident occurred. We

       agree with the trial court that Menard “cannot have sought to wrongfully

       conceal that which did not exist.” (App. Vol. 2 at 26). We therefore conclude

       that the trial court did not err in finding that the doctrine of spoliation was

       inapplicable to this case.


       Conclusion


[31]   In conclusion, the evidence designated to the trial court demonstrates that

       Menard did not meet its initial summary judgment burden of showing an

       absence of a genuine issue of material fact regarding the breach of duty element

       of the Griffins’ negligence claim based on premises liability. In addition,

       Menard failed to meet its initial burden of showing an absence of material fact

       on the Griffins’ res ipsa loquitur claim. However, Menard did meet its burden of

       negating an element of the Griffins’ spoliation claim. Accordingly, we affirm

       the grant of summary judgment in favor of Menard on the spoliation claim and

       reverse the grant of summary judgment with respect to the Griffins’ claims of

       premises liability negligence and res ipsa loqutur.


[32]   Affirmed in part, reversed in part, and remanded for further proceedings.


       Kirsch, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CT-310 | October 20, 2020   Page 18 of 18