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

FILED
Dec 28 2020, 10:33 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Matthew J. McGovern MENARD INC.
Anderson, Indiana Leslie B. Pollie
Jessica N. Hamilton
Travis W. Montgomery
Kopka Pinkus Dolin PC
Carmel, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Jessica Whetstine, Barbara December 28, 2020
Whetstine as Co-Guardian of the Court of Appeals Case No.
Limited Guardianship, and 19A-CT-2949
Christopher Whetstine as Co- Appeal from the Vanderburgh
Guardian of the Limited Circuit Court
Guardianship The Honorable David D. Kiely,
Appellants-Plaintiffs, Judge
Trial Court Cause No.
v. 82C01-1210-CT-517

Menard, Inc., and Tyler R.
Norrenbrock, 1
Appellees-Defendants

1
Tyler R. Norrenbrock does not participate in this appeal. However, a party before the trial court is a party
on appeal. See Indiana Appellate Rule 17(A) (“A party of record in the trial court . . . shall be a party on
appeal.”). We therefore include Norrenbrock’s name in the caption.

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 May, Judge.

[1] Jessica Whetstine, Barbara Whetstine as Co-Guardian of the Limited

Guardianship of Jessica Whetstine, and Christopher Whetstine as Co-Guardian

of the Limited Guardianship of Jessica Whetstine (collectively, “the

Whetstines”) appeal the trial court’s judgment in favor of Menard, Inc. 2

(“Menard”). 3 The Whetstines present four issues, which we restate as:

1. Whether the trial court abused its discretion when it denied
the Whetstines’ motion for default judgment based on alleged
spoliation of evidence;

2. Whether the trial court abused its discretion when it denied
the Whetstines’ request to admit a photograph of an alleged
Menard truck; and

3. Whether the trial court abused its discretion when it denied
the Whetstines’ request for a proposed jury instruction regarding
res ipsa loquitur.

We affirm.

Facts and Procedural History

2
The corporation name is “Menard” but the stores are called “Menards.” (See, e.g., App. Vol. II at 32
(noting the name of the defendant as “Menard, Inc. a/k/a Menards”).)
3
The Whetstines do not appeal the trial court’s judgment in favor of Norrenbrock.

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[2] On May 26, 2012, Jessica and her boyfriend, Tyler Norrenbrock, were traveling

on a motorcycle on I-164 4 as they went from Louisville, Kentucky, to

Newburgh, Indiana. Norrenbrock hit a wooden pallet in the middle of the road

shortly after exiting I-164 at Lynch Road. The impact threw Jessica from the

motorcycle.

[3] Officer Mark Saltzman arrived at the scene and spoke with Norrenbrock, who

was conscious. The crash report indicated Norrenbrock told officers he “saw a

large object sail out of the back of the truck” and before he could “react, his

motorcycle struck the pallet.” (Tr. Vol. II at 35.) Jessica was unconscious and

sustained substantial injuries. Officer Michael Sides also arrived at the scene

and noticed a wooden pallet that witnesses to the accident had moved to the

side of the road. Officer Sides also observed a shipping label within the vicinity

of the accident.

[4] Local news broadcasted information about the accident the following morning.

Nicholas Rebstock contacted police after seeing the news broadcast and told

police that he had observed a wooden pallet on Interstate I-164 the night before.

Rebstock reported that after he swerved to miss the item, he noticed a red or

maroon pick-up truck with its back up lights activated as if it were backing up to

retrieve the pallet. Employees of the local Menards store also saw a similar

4
I-164 has since been renamed to be a part of I-69. (See Tr. Vol. II at 60 (testimony regarding renaming of I-
164).)

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 news report and called police to identify the shipping label found at the scene as

one used by Menard.

[5] On May 31, 2012, Detective Tony Mayhew investigated the case and contacted

Menard Assistant Security Manager Paul Beutz. Detective Mayhew sent Beutz

a picture of the shipping label and asked if Beutz could help with the

investigation. Beutz identified the shipping label as one from “pollystyrene

[sic][.]” (Tr. Vol. V at 40.) The shipping label was part of a delivery from a

Menard distribution center in Holiday City, Ohio, to a Menards store in

Owensboro, Kentucky, completed two weeks prior.

[6] At Detective Mayhew’s request, Beutz also looked at the surveillance video for

the Evansville Menards store shipping yard from day of the accident, searching

specifically for a “pickup truck.” (Id. at 41.) Beutz found a pickup truck,

captured a still picture of it, and then sent it to Detective Mayhew, who

eventually contacted the owner of the truck and eliminated the truck as a

vehicle that dropped the pallet. Detective Mayhew did not ask Beutz for any

additional surveillance footage.

[7] On October 1, 2012, Jessica filed a complaint against “John Doe” alleging

Norrenbrock struck a wooden pallet in the middle of the highway that was

negligently left there by an unknown party. (App. Vol. II at 28.) On May 23,

2014, Jessica filed an amended complaint against Menard and Norrenbrock

alleging she was injured when the motorcycle driven by Norrenbrock hit a

wooden pallet in the middle of the interstate and the collision was a result of

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 negligent conduct by Menard and Norrenbrock. Menard filed its answer and

affirmative defenses to Jessica’s complaint on June 21, 2014.

[8] On May 29, 2015, Menard filed a motion for summary judgment. On October

9, 2015, Menard filed a supplemental brief in support of its motion for summary

judgment. On January 1, 2016, Jessica filed her memorandum in opposition to

Menard’s motion for summary judgment. On February 18, 2016, Menard filed

its reply brief in support of its motion for summary judgment. On February 24,

2016, the trial court held a hearing on Menard’s motion for summary judgment

and denied the motion on February 29, 2016. 5

[9] On February 27, 2019, the Whetstines filed a second amended complaint.

Norrenbrock and Menard filed their answers on March 1 and March 19, 2019,

respectively. On October 25, 2019, the Whetstines filed a motion for default

judgment alleging spoliation of evidence or, alternatively, a request for a jury

instruction regarding spoliation of evidence. In that motion, the Whetstines

alleged Menard failed to preserve the surveillance video from its loading yard

on May 26, 2012. Menard filed a motion opposing the Whetstines’ motion for

default judgment on November 5, 2019. The trial court denied the Whetstines’

5
On June 8, 2017, the Warrick Circuit Court established a limited guardianship over Jessica, naming her
parents, Christopher and Barbara, as her guardians. On July 17, 2017, Jessica filed a motion to substitute the
Limited Guardianship as the plaintiff. On July 31, 2017, and August 1, 2017, Norrenbrock and Menard,
respectively, filed objections thereto. Jessica filed a supplemental motion to substitute on December 13,
2018, and Norrenbrock and Menard again objected. On February 4, 2019, the trial court entered an order
allowing the co-guardians of the Limited Guardianship to be joined as parties in a representative capacity.

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 motion for default judgment during trial, prior to the presentation of evidence

by Menard.

[10] The parties filed their proposed preliminary jury instructions on November 8,

2019, and their proposed final jury instructions on November 14, 2019. The

trial court held a jury trial from November 11-15, 2019. During the jury trial,

the Whetstines attempted to admit a photograph which they purported 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 evidence, finding that the

Whetstines had not provided a proper foundation and the evidence was not

relevant to the matter before the court. The jury returned a verdict in favor of

Norrenbrock and Menard.

Discussion and Decision
1. Default Judgment
[11] Our standard of review for a trial court’s decision regarding a default judgment

is well-settled.

The decision to grant or deny a motion for default judgment is
within the trial court’s discretion. R.R. Donnelley & Sons Co. v. N.
Tex. Steel Co., Inc., 752 N.E.2d 112, 126 (Ind. Ct. App. 2001),
reh’g denied, trans. denied. We reverse only if the trial court’s
decision is clearly against the logic and effect of the facts and
circumstances. Id. The trial court’s discretion in granting or
denying a motion for default judgment is considerable. Green v.
Karol, 168 Ind. App. 467, 473, 344 N.E.2d 106, 110 (Ind. Ct.

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 App. 1976). “The trial court should use its discretion to do what
is ‘just’ in light of the unique facts of each case.” Allstate Ins. Co.
v. Watson, 747 N.E.2d 545, 547 (Ind. 2001) (quoting In re Ransom,
531 N.E.2d 1171, 1172 (Ind. 1988)).

Progressive Ins. Co. v. Harger, 777 N.E.2d 91, 94 (Ind. Ct. App. 2002). “[A]

default judgment is not generally favored, and any doubt of its propriety must

be resolved in favor of the defaulted party.” Watson, 747 N.E.2d at 547

(quoting Green, 168 Ind. App. at 474, 344 N.E.2d at 111). It is “an extreme

remedy and is available only where that party fails to defend or prosecute a suit.

It is not a trap to be set by counsel to catch unsuspecting litigants.” Id. at 547.

On the one hand, a default judgment plays an important role in
the maintenance of an orderly, efficient judicial system as a
weapon for enforcing compliance with the rules of procedure and
for facilitating the speedy determination of litigation. On the
other hand, there is a marked judicial preference for deciding
disputes on their merits and for giving parties their day in court,
especially in cases involving material issues of fact, substantial
amounts of money, or weighty policy determinations. The trial
court, in its discretion, must balance these factors in light of the
circumstances of each case.

Green, 168 Ind. App. at 473, 344 N.E.2d at 110.

[12] “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) (quoting Popovich v. Ind. Dep’t of State Revenue, 17

N.E.3d 405, 410 (Ind. Tax Ct. 2014)). A party raising a claim of spoliation

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 must prove “(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. The Whetstines argue the trial court

abused its discretion when it denied their motion for default judgment based on

their allegation that Menard spoiled evidence when Menard did not preserve

the surveillance video from its loading yard for the relevant time preceding the

collision.

[13] During his investigation of the collision, Detective Mayhew asked the Assistant

Security Manager of Menard, Beutz, for information from the surveillance tape,

specifically footage of any pickup truck that might have picked up pallets on

May 26, 2012. Beutz sent Detective Mayhew a still screenshot of a pickup

truck that picked up pallets that day. Detective Mayhew contacted the owner

of the truck and eliminated the truck as the one that may have dropped a pallet

on I-164. Detective Mayhew did not contact Beutz again, and the surveillance

footage of May 26, 2012, was destroyed after ninety days pursuant to Menard

company policy. Jessica named Menard as a defendant in her amended

complaint on May 23, 2014, almost two years after the accident. The

Whetstines contend Menard’s duty to preserve the surveillance footage “arose

the moment Detective Mayhew spoke with Beutz.” (Br. of Appellants at 31.)

[14] “The duty to preserve evidence occurs when a first-party claimant ‘knew, or at

the very least, should have known, that litigation was possible, if not

probable.’” Golden Corral Corp. v. Lenart, 127 N.E.3d 1205, 1217 (Ind. Ct. App.

2019) (quoting N. Ind. Pub. Serv. Co., 102 N.E.3d at 301), trans. denied. This

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 duty may exist prior to the commencement of a lawsuit. Id. at 1218. For

example, in Golden Corral, our Court concluded that Golden Corral had a duty

to preserve the buffet temperature logs because they were immediately put on

notice of Lenart’s illness, which she claimed was caused by a foodborne

pathogen, and Lenart’s attorney contacted Golden Corral within the ninety-day

record retention period. Id.

[15] Such is not the case here. Detective Mayhew contacted Beutz shortly after the

accident, and Beutz reviewed the relevant surveillance footage, sending

Detective Mayhew a still photograph of a truck on which pallets had been

loaded. Detective Mayhew testified that he investigated the vehicle and

determined it was not a vehicle of interest in the case. Detective Mayhew

testified he did not instruct Beutz “to retain the video of the lumber yard” and

did not “inform him that Menards was under investigation[.]” (Tr. Vol. II at

100.) Detective Mayhew testified he “never reached back out to [Beutz] for

additional information . . . once [he] received the information from him about

the truck that left the lumber yard on May 26, 2012[.]” (Id.) 6

6
The Whetstines note two other instances in which a person associated with the investigation asked Menard
employees for information and were referred to Menard’s corporate counsel. In the first instance,
Norrenbrock’s mother spoke to the Evansville Menards store manager and was referred to corporate counsel.
In the second, Larry Craddock, “a retired police officer, [who] was a friend of the Whetstine family and
agreed to assist in the investigation[,]” (Appellants’ Br. at 13), spoke with the shipping supervisor in Holiday
City, Ohio, and was referred to corporate counsel. However, the Whetstines do not indicate how an
employee’s referral to corporate counsel when asked to provide information and documentation about
specific incidents has any bearing on the duty to preserve unrelated evidence, specifically, the surveillance
tape from the Evansville Menards store.

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[16] Further, when Jessica filed her claim for damages arising from the accident in

October 2012, she did not name Menard as a defendant. Instead, she indicated

the proximate cause of her injuries from the collision “was negligent conduct on

the part of unknown parties.” (App. Vol. II at 28.) She did not name Menard

as a defendant until almost two years after the collision, on May 23, 2014.

Menard had no way of knowing that it would be a party to Jessica’s claim; it

would appear Jessica did not believe Menard to be responsible for her injuries

when she filed her original claim. 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 Beutz again after Beutz gave Detective

Mayhew the still photograph from the lumber yard on the relevant date.

Therefore, we conclude Menard did not have a duty to preserve the surveillance

tape relevant to this case, and thus spoliation did not occur. 7

2. Admission of Evidence
[17] We review the trial court’s admission of evidence for an abuse of discretion.

Henderson v. Henderson, 139 N.E.3d 227, 236 (Ind. Ct. App. 2019). An abuse of

discretion occurs if the trial court’s decision is clearly against the logic and

effect of the facts and circumstances before the court. Id. The Whetstines argue

7
As we hold Menard did not have a duty to preserve the surveillance video, there was not spoliation of
evidence. Therefore, the Whetstines’ argument that the trial court abused its discretion when it did not give a
jury instruction regarding spoliation fails because there was no evidence to support such an instruction. See
Otter Creek Trading Co., Inc. v. PCM Enviro PRY, LTD, 60 N.E.3d 219, 226 (Ind. Ct. App. 2016) (trial court
does not abuse its discretion when it denies a party’s request to include a jury instruction when there is no
evidence to support the instruction), reh’g denied, trans. denied.

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 the trial court abused its discretion when it did not admit a photograph

allegedly depicting a Menard truck with an enclosed trailer pulling an open

flatbed trailer stacked with wooden pallets.

[18] During trial, Menard called Stewart Hite, the general manager of the Menard’s

store in Evansville, Indiana, as a witness. He testified that Menard did not use

flatbed trailers to haul wooden pallets like the pallet found at the scene of the

accident and that any unused pallets were loaded on enclosed trailers for

shipping between stores. On cross-examination, the Whetstines attempted to

admit a photograph they “obtained . . . just searching through Google images of

Menards trucks.” (Tr. Vol. V at 73.) The image depicted a semi-trailer with the

Menard logo on it hauling an open trailer of wooden pallets behind it. (Ex.

Vol. II at 190.) The Whetstines wanted to use the image to impeach Hite’s

testimony “that [Menard] did not transport pallets on flatbed trailers.” (Tr. Vol.

V at 73.)

[19] Menard objected, arguing the image was irrelevant because Hite could only

testify as to how pallets are shipped out of the Evansville store and the

Whetstines had not laid a foundation for the admission the photograph.

Menard asserted, “[W]e have Google searched a picture with no

authentication, no background, no information. We don’t know where it is.

All we know is that’s a truck with a Menards logo pulling a flatbed of pallets.”

(Id.) The Whetstines made an offer to prove, asking Hite questions about the

image outside the presence of the jury. Hite testified the picture appeared to be

fifteen to twenty years old and the semi-truck was owned by a “contract hauler”

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 based on the “USDOT authorities and everything . . . on the side of the

truck[.]” (Id. at 75.) Hite also testified that in 2012 Menards did not transport

pallets on a flatbed trailer. The court denied the Whetstines’ request to admit

the photograph, stating:

Until you can lay a foundation that that photograph is relevant to
the time we’re talking about, I’m not going to admit the
photograph. So, if you want to make an offer to prove, you can
put it in but I need foundation. The only evidence I have is that
it’s not relevant at all to this time period.

(Id. at 78.)

[20] The Whetstines assert they laid a sufficient foundation for the photograph and

it was relevant to the issue whether Menard used open flatbed trailers to haul

wooden pallets. “To lay a foundation for the admission of evidence, the

proponent of the evidence must show that it has been authenticated.” Hape v.

State, 903 N.E.2d 977, 989 (Ind. Ct. App. 2009), trans. denied. Our Indiana

Supreme Court explained the requirements for the admission of photographs

for substantive evidence purposes over forty years ago:

The “silent witness theory” for the admission of photographic
evidence permits the use of photographs at trial as [s]ubstantive
evidence, as opposed to merely demonstrative evidence. Thus,
under the silent witness theory there is no need for a witness to
testify a photograph accurately represents what he or she
observed; the photograph “speaks for itself.” III J. Wigmore,
Evidence s 790 (Chadbourn rev. 1970).

*****

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 The foundation requirements for the admission of photographs as
substantive evidence under the silent witness theory are
obviously vastly different from the foundation required for
demonstrative evidence. However, we feel it would be wrong to
lay down extensive, absolute foundation requirements. Every
photograph, the context in which it was taken, and its use at trial
will be different in some respect. We therefore hold only that a
[s]trong showing of the photograph’s competency and
authenticity must be established. Whether a sufficiently strong
foundation has been laid is left to the sound discretion of the trial
court, reviewable only for abuse. However, we stress our use of
the adjective “strong.” Photographs tend to have great probative
weight and should not be admitted unless the trial court is
convinced of their competency and authenticity to [a] relative
certainty.

Bergner v. State, 397 N.E.2d 1012, 1015-7 (Ind. Ct. App. 1979). “Our courts

have consistently held this requires the testimony of a witness who can state the

photograph is ‘a true and accurate representation of the things it is intended to

depict.’” Id. at 1014.

[21] Here, the Whetstines attempted to admit a photograph from the internet

depicting what is purported to be a Menards tractor-trailer hauling two

additional open bed trailers behind it. On one of the open bed trailers, there

seem to be wooden pallets. The Whetstines did not indicate what site they used

to obtain the photograph, except to state that they “obtained . . . [by] just search

through Google images of Menards trucks.” (Tr. Vol. V. at 73.) The

Whetstines did not establish a date the picture was taken, except that Hite

testified he thought it was approximately fifteen to twenty years old. The

Whetstines did not inform the court where the picture was taken, nor how,

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 whether it be by an automatic camera such as a surveillance camera, or a

personal camera. Based thereon, we cannot say the Whetstines established a

“strong” showing of the photograph’s authenticity – in fact, they barely laid any

competent foundation at all. Cf. Torres v. State, 442 N.E.2d 1021, 1024-5 (Ind.

1982) (sufficient foundation laid for admission of photographs when evidence

adduced photographs had not been altered, a witness identified the people in

the photographs, a witness identified the place the photograph was taken based

on her personal knowledge, and a witness approximated the date the

photographs were taken).

[22] Additionally, the image is irrelevant. Relevant evidence is “evidence having

any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence.” Evid. R. 401. Further, relevant evidence “may be

excluded if its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, or needless presentation of cumulative

evidence.” Evid. R. 403.

[23] Hite testified, “[t]his is a very old picture and that is a form of a you know split

trailer with a van and a flatbed that was used - - I mean I’m really guessing here

- that it’s at least 15 years old, at least, if not 20.” (Tr. Vol. V at 76.) The

Whetstines did not present any additional information in their offer to prove to

suggest the age of the photograph, specifically whether it depicted a Menard

truck during the time period of the collision. Without information regarding

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 when the picture was taken, where it was taken, and whether the truck was one

that had ever actually been used by Menard, we cannot say that the picture was

relevant. Moreover, its introduction would run the risk of confusing or

misleading the jury when there was no evidence to suggest any such truck was

in the Evansville area in the days, weeks, or months prior to the accident that

injured Jessica. We therefore conclude the trial court did not abuse its

discretion when it denied the Whetstines’ request to admit the photograph. See

Ind. Evid. R. 402 (“[i]rrelevant evidence is not admissible”); and see Ind. Evid.

R. 403 (trial court “may exclude relevant evidence if its probative value is

substantially outweighed” by “confusing the issues” or “misleading the jury”).

3. Jury Instructions
[24] At the conclusion of the trial, the Whetstines proposed the following jury

instruction:

There are certain situations in which the nature of an incident
and the circumstances surrounding it lead to the reasonable belief
that it would not have occurred unless someone did not use
reasonable care.

If the Plaintiff proves all of the following by the greater weight of
the evidence:

(1) The Plaintiff was injured when the vehicle operated
by Tyler Norrenbrock struck a pallet on I-164;

(2) Only the Defendant Menard, Inc. controlled the
pallet; and

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 (3) Under normal circumstances, the collision with the
pallet would not have occurred unless Defendant
Menard, Inc. was negligent,

then you may infer that the incident resulted from Defendant
Menard, Inc.’s negligence. You may consider this inference with
all of the other evidence in arriving at your verdict.

(App. Vol. IV at 112.) The language of the proposed instruction is nearly

identical to Indiana Civil Model Jury Instruction 325 for res ipsa loquitur. The

trial court denied the Whetstines’ request to include the proposed instruction.

The Whetstines argue the trial court abused its discretion in doing so because

the instruction was supported by evidence.

[25] Instructing the jury is a matter assigned to the sound discretion of the trial

court. Burdick v. Romano, 148 N.E.3d 335, 340 (Ind. Ct. App. 2020). We

review the court’s decision only for an abuse of discretion. Humphrey v. Tuck,

132 N.E.3d 512, 515 (Ind. Ct. App. 2019). When we review a trial court’s

refusal of a tendered instruction, we consider: 1) whether the tendered

instruction is a correct statement of the law; 2) whether there is evidence in the

record to support the instruction; and 3) whether the substance of the

instruction is covered by other instructions given by the court. Otter Creek

Trading Co., Inc. v. PCM Enviro PRY, LTD, 60 N.E.3d 219, 226 (Ind. Ct. App.

2016), reh’g denied, trans. denied. Jury instructions are intended to inform the

jury of the law applicable to the facts without misleading the jury and to enable

the jury to comprehend the case clearly and arrive at a just, fair and correct

verdict. Centennial Mortg., Inc. v. Blumenfeld, 745 N.E.2d 268, 278 (Ind. Ct. App.
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 2001). Accordingly, a trial court properly rejects an instruction that would

“mislead or confuse the jury.” Burdick, 148 N.E.3d at 340.

[26] The doctrine of res ipsa loquitur

literally means “the thing speaks for itself.” Shull v. B.F. Goodrich
Co., 477 N.E.2d 924, 926 (Ind. Ct. App. 1985), trans. denied. Res
ipsa loquitur is a rule of evidence which permits an inference of
negligence to be drawn based upon the surrounding facts and
circumstances of the injury. K-Mart Corp. v. Gipson, 563 N.E.2d
667, 669 (Ind. Ct. App. 1990), trans. denied. The doctrine
operates on the premise that negligence, like any other fact or
condition, may be proved by circumstantial evidence. Id. To
create an inference of negligence, the plaintiff must establish: (1)
that the injuring instrumentality was within the exclusive
management and control of the defendant or its servants, and (2)
that the accident is of the type that does not ordinarily happen if
those who have the management and control exercise proper
care. Id. In determining if the doctrine is applicable, the
question is whether the incident more probably resulted from
defendant’s negligence as opposed to another cause. Id. A
plaintiff may rely upon common sense and experience or expert
testimony to prove that the incident more probably resulted from
negligence. Vogler v. Dominguez, 624 N.E.2d 56, 61 (Ind. Ct.
App. 1993), 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 injury.
Aldana v. Sch. City of E. Chicago, 769 N.E.2d 1201, 1207 (Ind. Ct.
App. 2002), trans. denied. Exclusive control is an expansive
concept which focuses upon who has the right or power of
control and the opportunity to exercise it. Shull, 477 N.E.2d at
933.

Rector v. Oliver, 809 N.E.2d 887, 889-90 (Ind. Ct. App. 2004), trans. denied. It is

undisputed that the Whetstines’ tendered instruction was a correct statement of
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 the law and that the substance of the res ipsa loquitur instruction was not

covered by any other instruction tendered to or given by the court. Thus, the

issue before us is whether there existed evidence to support giving such an

instruction. When determining whether to allow a party to include a jury

instruction regarding res ipsa loquitur, the trial court must decide as a matter of

law “whether the plaintiff has produced evidence from which a jury could

reasonably find the existence of both of the underlying elements of res ipsa

loquitur: exclusive control and probability of negligence.” Vogler, 624 N.E.2d at

61. “There only need be evidence and reasonable inferences therefrom, which,

when viewed in the light most favorable to the proponent, would support the

jury verdict contained in the instruction.” Sharp v. LaBrec, Inc., 642 N.E.2d 990,

993 (Ind. Ct. App. 1994).

[27] The Whetstines argue the facts before us are akin to those in Pittsburgh,

Cincinnati, Chicago & Saint Louis Railway Co. v. Hoffman, 57 Ind. App. 431, 107

N.E. 315 (1914). In that case, Hoffman, a train watchman, was struck in the

head by a piece of coal that fell from a passenger train traveling westbound on a

temporary track. Id. at 435, 107 N.E. at 316-7. The passenger train and the

temporary track were both owned and maintained by the Railway Company.

Id. at 435, 107 N.E. at 316. At trial, the trial court permitted a jury instruction

regarding res ipsa loquitur, and the jury returned a verdict in favor of Hoffman.

Id. at 440, 107 N.E. at 318.

[28] The Railway Company appealed, arguing in part that Hoffman had not

presented sufficient evidence to support a jury instruction on the doctrine of res

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 ipsa loquitur. Our court affirmed the trial court’s decision to permit the

instruction, stating regarding the sufficiency of the evidence:

[Hoffman] was struck by a piece of coal, and the jury, as we have
said, were warranted in finding that such coal came from the
tender; but there is no circumstance proven, which as mere
matter of circumstantial evidence connects the fact of the falling
of the coal with any human agency. But the tender and the
engine and the coal thrown, and the handling and management
of all these, were under the exclusive control of [Railway
Company’s] servants. We do not believe that coal properly and
carefully loaded on an engine properly handled, keeping in view
the nature of the track, would ordinarily fall from such tender
upon persons near the track. It is in such a situation that the
maxim res ipsa loquitur supplements circumstantial evidence, by
raising a presumption from such facts unexplained that there was
negligence in the loading or handling of the coal.

Id. at 450, 107 N.E. at 321.

[29] Here, taking the evidence most favorable to the Whetstines, we agree that

Jessica’s injury was caused when Norrenbrock struck the pallet situated in the

middle of the road. There is no reason the pallet would be in the middle of the

road except for it falling off of something transporting that pallet, which would,

circumstantially, lead one to believe that the pallet was not properly loaded on

that vehicle. Thus, the first element of res ipsa loquitur – that is, that the

incident could not have happened if those who had management and control

had exercised proper care – is satisfied. See Farmer v. Werner Transportation Co.,

152 Ind. App. 609, 615, 284 N.E.2d 861, 865 (1972) (holding the “unexplained

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 presence of an air compressor on a traveled highway” is sufficient to support

one of the elements of res ipsa loquitur).

[30] However, the facts most favorable to the Whetstines here diverge from those in

Hoffman as they pertain to whether the item that injured Jessica, that is, the

pallet, was within the exclusive management and control of Menard. In

Hoffman, the injured watchman Hoffman saw the passenger train owned and

maintained by the Railway Company carrying the coal as it passed him on the

temporary track. Hoffman, 57 Ind. App. at 435, 107 N.E. at 316-7. Here, there

is no evidence that Jessica, Norrenbrock, or any witness saw the pallet leave a

truck with a Menard logo or a vehicle that could be traced in any way to

Menard.

[31] We confronted a similar issue in Farmer, where Farmer, a truck driver, was

injured when his truck hit an air compressor on the side of the road. Farmer,

152 Ind. App. at 614, 284 N.E.2d at 865. As noted supra, we concluded that the

presence of an air compressor on the side of the highway was sufficient to

support the negligence portion of the res ipsa loquitur analysis. Id. at 615, 284

N.E.2d at 865. In support of the other element of res ipsa loquitur – proof of

exclusive control of the instrumentality which caused the injury – Farmer

presented evidence that he (1) had been following a truck with the word

“Werner” on its side and (2) the air compressor involved in the collision with

Farmer and “a companion air compressor across the road located in another

part of the highway were later picked up by representatives of . . . Werner.” Id.

at 614, 284 N.E.2d at 865. We held that evidence was “absolutely and

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 completely inadequate upon an essential element of the concept of res ipsa

loquitur, namely, proof of exclusive control” by Werner. Id. at 615, 284 N.E.2d

at 865.

[32] There exists even less evidence here than in Farmer, where we held res ipsa

loquitur could not be invoked. Here, there is no evidence any vehicle owned or

controlled by Menard was in the immediate area where the collision occurred.

The Whetstines rely heavily on the label found near the collision site, which

was later identified as one belonging to Menard. However, if we analogize the

label to the air compressor in Farmer, the label here provides significantly less

indication that Menard was in exclusive control of the pallet in this collision

because the label was from a product that was not shipped on wooden pallets

and was part of a shipment traveling through the area two weeks prior to the

collision. 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.

Conclusion
[33] The trial court did not abuse its discretion when it denied the Whetstines’

motion for default judgment based on spoliation of evidence because Menard

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 did not have a duty to preserve the relevant surveillance video. Additionally,

the trial court did not abuse its discretion when it did not admit the Whetstines’

proffered picture of an alleged Menard truck. Finally, the trial court did not

abuse its discretion when it denied the Whetstines’ proffered jury instruction

regarding res ipsa loquitur because there was no evidence that Menard had

exclusive control over the pallet at issue. Accordingly, we affirm.

[34] Affirmed.

Riley, J., and Altice, J., concur.

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