Golden Corral Corporation v. Kristina M. Lenart

FILED
Jun 19 2019, 8:59 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Crystal G. Rowe Marc S. Sedwick
New Albany, Indiana New Albany, Indiana
Michael Wroblewski
Adam S. Ira
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Golden Corral Corporation, June 19, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CT-704
v. Appeal from the Clark Circuit
Court
Kristina M. Lenart, The Honorable Vicki L.
Appellee-Plaintiff Carmichael, Judge
Trial Court Cause No.
10C04-1310-CT-183
Altice, Judge.
Case Summary
[1] Golden Corral Corporation appeals following a jury verdict and $240,000
award of damages in favor of Kristina M. Lenart on Lenart’s claim for
Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019 Page 1 of 27
negligence in which Lenart alleged that Golden Corral failed to prepare and
serve its barbeque chicken wings in a manner safe for human consumption and
that as a result of consuming such chicken wings, Lenart suffered from food
poisoning and related injuries. On appeal, Golden Corral presents four issues
for our review:
1. Did the trial court abuse its discretion in allowing Dr. Julie
Hutchinson to testify as an expert witness on Lenart’s behalf?
2. Did the trial court abuse its discretion in denying Golden
Corral’s motions for judgment on the evidence?
3. Did the trial court abuse its discretion by instructing the jury
on spoliation and res ipsa loquitur?
4. Did the trial court err in concluding that Lenart’s claim was
not governed by the Indiana Products Liability Act (IPLA)?
[2] We affirm.
Facts & Procedural History
[3] On Sunday, April 28, 2013, Lenart, her husband Kenneth, and their twelve-
year-old daughter went to the Golden Corral restaurant in Clarksville, Indiana.
When they arrived at the restaurant at approximately 1:00 p.m., there was a
line at the front register and after they paid, they had to wait about ten minutes
until a table became available. Lenart and her family then proceeded to the
buffet.
Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019 Page 2 of 27
[4] When Kenneth grabbed a plate, he saw that there was food stuck between two
plates and brought it to the attention of a Golden Corral employee. He then
grabbed another plate and started choosing food items. As he walked down the
buffet line, Kenneth noted that “the amounts of food were kinda slim-pickin’s”
and most of the food bins were “down to a bare minimum” with some bins
completely empty of food. Transcript Vol. 2 at 239. He overheard an employee
apologizing to patrons and advising that it could take up to thirty to forty
minutes for food on the buffet to be replenished because they had been
“slammed” with customers. Id. Kenneth then returned to the table. Because
he did not get all the food he wanted on his first trip to the buffet, Kenneth
continued to watch the buffet line to see when additional food was brought out.
He described the circumstances as a “feast or famine type of thing,” noting that
“[e]very time that a tray of food was brought out it was kind of like . . . steel to
a magnet, everybody just converted [sic] on it, . . . they wanted their food.” Id.
at 242.
[5] During her first trip to the buffet, Lenart chose bone-in, barbeque chicken
wings, mashed potatoes, and a slice of pizza and then returned to the table with
her family. As she ate the wings, she did not perceive any problems or note that
they were pink or undercooked. On her second trip to the buffet, Lenart
grabbed about ten more barbeque chicken wings and ate all but a couple.
[6] Lenart’s daughter went through the buffet line three times, and on her third trip
she opted for plain, bone-in chicken wings, which were in a tray separate from
the barbeque chicken wings. After she bit into her first plain chicken wing,
Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019 Page 3 of 27
Kenneth “noticed it was like blood raw, it wasn’t just pink, . . . it was raw.” Id.
at 244. Kenneth told her to stop eating her plain chicken wing and then he took
it to the register and demanded to speak with a manager. While he was
speaking with the manager, another female patron approached and “went off
on the manager” about her chicken being raw. 1 Transcript Vol. 3 at 3. The
manager immediately offered Kenneth a refund, which Kenneth accepted. The
manager then threw away the plain chicken wing that Kenneth brought to his
attention.
[7] Lenart and her family left Golden Corral without finishing their food. They
went to a nearby Lowe’s home improvement store, where they shopped for
approximately thirty to forty-five minutes before making the twenty-minute
drive home. During this time, Lenart was feeling fine. Shortly after returning
home, while she was preparing to plant flowers outside, Lenart suddenly started
feeling sick and had to walk “real fast like a run” to the bathroom. Id. at 6.
Lenart first had diarrhea and then she experienced intense vomiting. These
symptoms appeared approximately one to two hours after Lenart left Golden
Corral. Neither Kenneth nor Heather experienced any illness or adverse
symptoms.
1
Kenneth did not know what type of chicken the customer was complaining about—whether it was a
chicken breast, thigh, or wing.
Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019 Page 4 of 27
[8] Later that evening, Kenneth took Lenart to the emergency room. Because she
was not treated promptly, Kenneth took her to a second emergency room where
she remained overnight. The following morning, Lenart was released.
[9] On May 7, 2013, Lenart followed up with a family doctor with continued
complaints of abdominal pain, nausea, and vomiting. Lenart was referred to a
gastroenterologist, who, after an evaluation on May 28, 2013, referred her to
Dr. Julie Hutchinson, a board-certified general surgeon. Dr. Hutchinson
evaluated Lenart on May 31, 2013, at which time Lenart complained of
continued abdominal pain and told Dr. Hutchinson that she was not able to
keep food down. Dr. Hutchinson determined that Lenart had an umbilical
hernia that required surgery, which Dr. Hutchinson performed on June 5, 2013.
[10] After the surgery to repair the umbilical hernia, Lenart continued to complain
of abdominal pain and nausea, leading to two additional surgeries to repair scar
tissue that had formed at the first surgical site. Dr. Hutchinson believes Lenart
might require additional surgeries in the future. Prior to this health incident,
Lenart never had problems with her gallbladder, gastritis, pancreatitis, or
vomiting. In the six months preceding her visit to Golden Corral, Lenart had
not experienced any issues with heartburn or gastroesophageal reflux.
[11] With regard to Golden Corral’s food preparation, when Golden Corral receives
its chicken wings from its distributor, the wings are raw and cold, but not
frozen. Golden Corral’s procedure for preparing the chicken wings is that the
wings are cut into three pieces at the joints and the wing tips are discarded. The
Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019 Page 5 of 27
wings are cooked in a deep fryer at a temperature of 350 degrees for eight and a
half minutes and then drained for 10 to 30 seconds. For barbeque chicken
wings (as well as other types of flavored chicken wings), the fried wings are
placed in a pan and heated sauce is poured over them. The wings are then
transferred to an appropriate bin and placed on the buffet. Each different flavor
of chicken wings is contained in its own separate bin, and each bin has its own
dedicated tongs.
[12] Golden Corral also has a procedure for ensuring that the food on its buffet is
maintained at a temperature outside the “danger zone”—which refers to the
temperature range that promotes the growth of bacteria. 2 Id. at 103. Four times
a day (at 11 a.m., 2 p.m., 4 p.m., and 8 p.m.), Golden Corral takes the
temperature of food on the buffet and the temperatures are noted in a
temperature log. It is Golden Corral’s policy that the buffet temperature logs
are kept for ninety days, after which they are replaced with new temperature
logs over the course of the next ninety-day period. In the case of chicken wings,
the temperature is taken of individual chicken wings on the buffet. These logs
do not provide information about how the food was prepared or cooked.
Golden Corral does not have a corollary procedure for taking the temperature
of food once it is cooked. Rather, the food is simply prepared and cooked
according to the specified procedures. As pertinent here, Golden Corral did not
2
William Scheibe, whose title was New Store Opening Specialist for Golden Corral at the time he provided
his deposition testimony, testified that food is allowed to be in the danger zone for a period of four hours,
during which time frame the food “will not develop enough bacteria to be of a harmful nature.” Id. at 103.
Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019 Page 6 of 27
preserve the buffet temperature logs of the chicken wings for the day Lenart
visited the Clarksville location after the expiration of the ninety-day retention
period.
[13] With respect to food items that are returned or about which a complaint is
made, Golden Corral did not, at all times relevant to this case, have a policy
requiring preservation of such items. Generally speaking, a food item about
which a patron complains would only be saved if the manager was directed to
do so or if there is a confirmed form of contamination. Undercooked food is
typically disposed of because there is no reason to keep it.
[14] On April 30, 2013, two days after their visit to Golden Corral, Kenneth
accessed Golden Corral’s corporate website and submitted the following
complaint:
We visited your Clarksville, IN location Sunday – THE
CHICKEN BEING SERVED WAS BLOOD RAW –There was
no ham, sausage, pizza, taco meat, meatloaf, chocolate in the
wonderfall and the deserts [sic] were at a bare minimum – This
place was pushing out RAW food and telling people it will be a
30-40 minute wait. The food was being pushed out without
ample cooking time. My wife ended up with food poisoning and
spent the night in a hospital from eating undercooked wings and
chicken. I spoke with two managers and pointed these tings [sic]
out and neithor [sic] of them seemed like they were very
concerned about it. Other diners were complaining as well about
the chicken being undercooked. I would like someone to contact
me on this issue.
Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019 Page 7 of 27
Exhibits Vol. 6, Plaintiff’s Exhibit 1 at 4-5. Golden Corral responded to Kenneth’s
message on May 3, 2013, advising that his concerns had been forwarded to the
District Manager for corrective action. Kenneth also received a call from a
representative of Golden Corral assuring him that the matter was being
investigated and that it was being taken “very serious.” Transcript Vol. 3 at 17.
Subsequently, at the direction of the district manager, Golden Corral’s claims
administrator sent a letter to Lenart dated May 8, 2013, asking Lenart to
contact them. On June 7, 2013, Lenart’s counsel wrote the claims
administrator indicating his representation of Lenart, noting that Lenart was
still being treated for her injuries, and stating that he would be in touch within
two months. The claims administrator responded on June 19, 2013, requesting
Lenart’s recorded statement to complete its investigation.
[15] On October 24, 2013, Lenart filed a complaint for negligence alleging that
Golden Corral failed to prepare and serve its barbeque chicken wings in a
manner safe for human consumption and that as a result of eating such chicken
wings, she sustained injuries and damages. In its answer, Golden Corral denied
the essential averments of Lenart’s complaint and asserted affirmative defenses,
including that the claimed defective product conformed to the generally
recognized state of the art under the IPLA.
[16] Prior to trial both parties unsuccessfully moved for summary judgment. In
support of her motion for partial summary judgment, Lenart submitted the
affidavit of Dr. Hutchinson in which Dr. Hutchinson stated: “As of May 31,
2013, it was my understanding that in the weeks prior, [Lenart] visited a
Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019 Page 8 of 27
Golden Corral restaurant, located in Clarksville, Indiana, where she
unknowingly consumed undercooked chicken wings.” Appellant’s Appendix Vol.
2 at 60. Based on her conversations with Lenart, a review of Lenart’s medical
history, and her experience, Dr. Hutchinson noted that she engaged in a
differential diagnosis and concluded “[t]o a reasonable degree of medical
probability, it is more probably true than not true, that [Lenart]’s umbilical
hernia was caused by her violent episodes of vomiting, which is related to
consuming the undercooked chicken wings at Golden Corral on April 28,
2013.” Appellant’s Appendix Vol. 2 at 60. Dr. Hutchinson further opined:
[B]ut for consuming the undercooked chicken wings, which there
is no dispute, there is no other medically supported reason to
explain why [Lenart] experienced the violent episodes of
vomiting, which vomiting caused [Lenart]’s umbilical hernia.
Further it is known that there are food-borne pathogens, such as
Staphlococcus [sic] and Bacillus cereus, which have an
incubation period consistent with the onset of symptoms
experienced by [Lenart].
Id. at 61. Golden Corral moved to strike Dr. Hutchinson’s affidavit, or in the
alternative, for an extension of time in order for Golden Corral to depose her.
The trial court granted the latter request.
[17] After taking Dr. Hutchinson’s deposition, Golden Corral again moved to strike
her affidavit and deposition testimony on grounds that her opinion did not meet
the reliability requirements of Ind. Evid. R. 702 for admissibility of an expert
opinion. The trial court denied Golden Corral’s motion to strike, thereby
indicating Dr. Huchinson’s proffered expert opinion as to the cause of Lenart’s
Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019 Page 9 of 27
sickness and injury would be admissible at trial. 3 Golden Corral again
challenged the admissibility of Dr. Hutchinson’s testimony and opinion as to
causation by filing a motion in limine. The trial court denied Golden Corral’s
motion in limine.
[18] A four-day jury trial commenced on February 20, 2018. At trial, Dr.
Hutchinson testified via her videotaped deposition and, later, provided in-
person testimony as a rebuttal witness. Golden Corral did not object at trial to
Dr. Hutchinson’s testimony on the basis it challenged her testimony in pretrial
motions. At the end of Lenart’s case-in-chief, Golden Corral moved for
judgment on the evidence, arguing that Lenart failed to present sufficient
evidence to prove proximate cause. The court denied the motion. Golden
Corral renewed its motion for judgment on the evidence after the close of all
evidence, which motion the trial court again denied.
[19] Prior to the case being given to the jury, Lenart tendered instructions on
spoliation of evidence (based on Golden Corral’s failure to preserve the buffet
temperature logs and Lenart’s daughter’s plain chicken wing that Kenneth took
to the manager) and res ipsa loquitur. Over Golden Corral’s objection, the trial
court gave Lenart’s tendered instructions to the jury.
3
Golden Corral asked the trial court to certify the denial of its motion to strike for interlocutory appeal,
which the trial court denied.
Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019 Page 10 of 27
[20] The jury ultimately returned a verdict in favor of Lenart and awarded her
$240,000 in damages. On March 2, 2018, the trial court entered final judgment
on the jury’s verdict. Golden Corral now appeals. Additional facts will be
provided as necessary.
Discussion & Decision
1. Admission of Expert Testimony
[21] Golden Corral argues that the trial court abused its discretion in allowing Dr.
Hutchinson to testify as an expert regarding the cause of Lenart’s illness and
subsequent injury because the scientific methodology employed by Dr.
Hutchinson was not reliable and thus, did not meet the admissibility
requirements of Evid. R. 702. Lenart argues that Golden Corral waived this
issue for appellate review by failing to object at trial to Dr. Hutchinson’s direct
(by deposition) and rebuttal (in person) testimony on the basis of Evid. R. 702.
[22] It is well established that a trial court’s ruling on a motion in limine does not
determine the ultimate admissibility of the evidence; that determination is made
by the trial court in the context of the trial itself. Clausen v. State, 622 N.E.2d
925, 927 (Ind. 1993). Case law makes clear that any objection to the challenged
evidence must be reasserted at trial contemporaneously with the introduction of
Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019 Page 11 of 27
such evidence or the issue is waived. 4 Shoultz v. State, 995 N.E.2d 647, 654-655
(Ind. Ct. App. 2013), trans. denied; see also Raess v. Doescher, 883 N.E.2d 790,
796-97 (Ind. 2008) (“Failure to object at trial to the admission of the evidence
results in waiver of the error, notwithstanding a prior motion in limine.”).
[23] Here, Golden Corral did not object at trial to Dr. Hutchinson’s direct or
rebuttal testimony on grounds that her opinion testimony was based on
unreliable scientific principles and not admissible under Evid. R. 702. Golden
Corral therefore waived this argument for appellate review.
[24] Waiver notwithstanding, we note that Golden Corral thoroughly presented its
arguments challenging the admissibility of Dr. Hutchinson’s testimony through
pretrial motions in limine and a motion to exclude. Specifically, Golden Corral
argued that the methodology (i.e., differential diagnosis) employed by Dr.
Hutchinson in arriving at her expert opinion that Lenart contracted a foodborne
illness from eating undercooked chicken at Golden Corral was faulty because
she did not rule out all other possible causes for Lenart’s sickness. Golden
Corral also argues that Dr. Hutchinson’s conclusion as to causation was
“improperly based primarily upon a temporal relationship (i.e., the fact that
Lenart reported getting sick two hours after eating at Golden Corral).”
Appellant’s Brief at 35. We are unpersuaded by Golden Corral’s argument that
4
An exception exists where a trial court assures the defense that his objection has been preserved. Vehorn v.
State, 717 N.E.2d 869, 872-73 (Ind. 1999); Swanson v. State, 730 N.E.2d 205, 208 (Ind. Ct. App. 2000), trans.
denied. Golden Corral does not argue that the trial court made any such assurances.
Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019 Page 12 of 27
such undermined the reliability of the methodology employed by Dr.
Hutchinson so as to render her testimony inadmissible.
[25] Dr. Hutchinson engaged in a differential diagnosis, which is “a standard
scientific technique accomplished by determining the possible causes of a
patient’s symptoms and then eliminating each of these potential causes until
isolating one that cannot be ruled out or by determining which of those that
cannot be ruled out is the most likely.” Triplett v. USX Corp., 893 N.E.2d 1107,
1118 (Ind. Ct. App. 2008) (quoting Lennon v. Norfolk and W. Ry. Co., 123
F.Supp.2d 1143, 1153 (N.D. Ind. 2000)), trans. denied. A reliable differential
diagnosis is performed after completing a physical examination, taking a
medical history, and reviewing clinical tests, including laboratory tests. Id. Dr.
Hutchinson described the manner in which she conducted a differential
diagnosis—that she considered Lenart’s medical history and information
provided by Lenart (i.e., that she had eaten raw chicken wings) and ruled out
several possible causes, including certain physical ailments and congenital
conditions. She acknowledged that she could not rule out all possible causes for
Lenart’s sickness, 5 but that given her medical training and experience, it was
“reasonable” to conclude that Lenart contracted an unidentified foodborne
5
For example, Dr. Hutchinson could not rule out certain non-foodborne bacterium or viruses.
Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019 Page 13 of 27
pathogen 6 from eating the chicken wings at Golden Corral. Appellant’s Appendix
Vol. 2 at 139.
[26] As the trial court properly determined, Golden Corral’s challenges to Dr.
Hutchinson’s testimony went to the weight of such testimony, not admissibility.
See Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 461 (Ind. 2001) (noting
that where the trial court is satisfied that the expert’s general methodology is
based on reliable scientific principles, “the accuracy, consistency, and credibility
of the expert’s opinions may properly be left to vigorous cross-examination,
presentation of contrary evidence, argument of counsel, and resolution by the
trier of fact”). Moreover, Golden Corral thoroughly cross-examined Dr.
Hutchinson about the methodology she employed, pointed out for the jury
what it perceived as shortcomings in the manner in which she reached her
expert opinion, and presented its own expert witness who provided an opinion
contrary to Dr. Hutchinson’s in some respects. The trial court did not abuse its
discretion in allowing Dr. Hutchinson to provide her expert opinion as to
causation of Lenart’s sickness.
2. Proximate Cause
6
Dr. Hutchinson acknowledged that there were numerous foodborne pathogens that applied to Lenart’s
symptom profile, only two of which had incubation periods that correlated with the timing of Lenart’s illness
relative to her consumption of the wings. She further testified that there is no way to know for sure which
foodborne pathogen caused Lenart’s sickness without being able to test a stool sample or the chicken wing.
Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019 Page 14 of 27
[27] Golden Corral argues that the trial court erred in denying its motions for
judgment on the evidence. A motion for judgment on the evidence challenges
the legal sufficiency of the evidence. Walgreen Co. v. Hinchy, 21 N.E.3d 99, 106
(Ind. Ct. App. 2014), trans. denied (2015). When reviewing a trial court’s ruling
on a judgment on the evidence, we apply the same standard as the trial court.
Kimbrough v. Anderson, 55 N.E.3d 325, 336 (Ind. Ct. App. 2016), trans. denied.
“We may not substitute our judgment for that of the jury on questions of fact
nor should a motion for judgment on the evidence be granted because the
evidence preponderates in favor of the moving party.” Id. Instead, we
determine only whether any reasonable evidence exists to support the
nonmovant’s claim and, if so, whether the inference supporting the claim can
be drawn without undue speculation. Id. The motion should be granted only
where there is no substantial evidence to support an essential issue in the case.
Solnosky v. Goodwell, 892 N.E.2d 174, 181 (Ind. Ct. App. 2008). “If there is
evidence that would allow reasonable people to differ as to the result, judgment
on the evidence is improper.” Id.[28] Here, Lenart claimed that Golden Corral was negligent in the manner in which
it prepared and served its barbeque chicken wings. To establish negligence,
Lenart was required to show that Golden Corral (1) owed her a duty of care; (2)
breached that duty; and that (3) she suffered injury proximately caused by the
breach. See Hassan v. Begley, 836 303, 307 (Ind. Ct. App. 2005). Golden Corral
argues that Lenart did not satisfy her burden to establish that her symptoms and
injuries were proximately caused by Golden Corral.
Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019 Page 15 of 27
[29] Golden Corral first argues that “the record is devoid of any scientifically reliable
evidence.” Appellant’s Brief at 42. Golden Corral also argues that Lenart’s
entire case was based on circumstantial evidence between the timing of her
lunch and the manifestation of her symptoms, which Golden Corral asserts
amounts to nothing more than speculation. Golden Corral’s argument in this
regard is essentially a challenge to the weight to be afforded Dr. Hutchinson’s
testimony on causation.
[30] Dr. Hutchinson testified via video deposition that she engaged in a differential
diagnosis and that based on information provided by Lenart, Lenart’s medical
history, as well as her own medical training and experience, she was of the
opinion that Lenart contracted one of a couple food pathogens having an
incubation period consistent with the timeframe between when Lenart
consumed the barbeque chicken wings and when she became sick. Dr.
Hutchinson acknowledged that there was no way to definitively know what
foodborne pathogen Lenart was exposed to but opined that her opinion was
reasonable and appropriate given the available information. Lenart presented
sufficient evidence as to the element of proximate cause to withstand Golden
Corral’s motions for judgment on the evidence. The trial court did not abuse its
discretion in denying such motions.
3. Final Instructions
[31] Golden Corral argues that the trial court abused its discretion by instructing the
jury, over its objection, on spoliation and the doctrine of res ipsa loquitur.
Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019 Page 16 of 27
Instructions serve to inform the jury of the law applicable to the facts presented
at trial, enabling it to comprehend the case sufficiently to arrive at a just and
correct verdict. Blocher v. DeBartolo Properties Management, Inc., 760 N.E.2d 229,
235 (Ind. Ct. App. 2001), trans. denied. In reviewing a trial court’s decision to
give a tendered instruction, we consider 1) whether the instruction correctly
states the law, 2) whether there is evidence in the record supporting the
instruction, and 3) whether the substance of the instruction is covered by other
instructions. Wal-Mart Stores, Inc. v. Wright, 774 N.E.2d 891, 893 (Ind. 2002).
The trial court has sole discretion in instructing the jury and thus, we will
reverse on the last two issues only when the instructions amount to an abuse of
discretion. Id. A party seeking a new trial on the basis of an improper jury
instruction must show a reasonable probability that its substantial rights have
been adversely affected. Elmer Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939,
944 (Ind. 2001). In other words, “[a]n erroneous instruction merits reversal if it
could have formed the basis for the jury’s verdict.” Fleetwood Enter., Inc. v.
Progressive N. Ins. Co., 749 N.E.2d 492, 495 (Ind. 2001).
A. Spoliation
[32] We first consider whether the court properly gave an instruction on spoliation.
Over Golden Corral’s objection, the trial court gave Final Instruction No. 9 to
the jury:
If Golden Corral fails to produce documents under Golden
Corral’s exclusive control, such as the temperature logs for the
barbecue chicken wings Ms. Lenart consumed and/or the plain
Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019 Page 17 of 27
chicken wing that Kenneth Lenart took to the manager of
Golden Corral on April 28, 2013, you may conclude that these
temperature logs and/or plain chicken wing, that Golden Corral
could have produced, would have been unfavorable to Golden
Corral’s case.
Appellant’s Appendix Vol. 5 at 24. On appeal, Golden Corral argues that the trial
court abused its discretion in giving this instruction because there is no evidence
that it “intentionally” destroyed evidence. Appellant’s Brief at 52 (emphasis in
original). Golden Corral also argues that the instruction was “irrelevant and
not supported by the evidence.” Id.[33] The party raising a claim of spoliation has the burden of proving that there was
a duty to preserve the evidence on the part of the alleged spoliator. Glotzbach v.
Froman, 854 N.E.2d 337, 338-39 (Ind. 2006) (noting that duty to preserve
evidence may be assumed voluntarily or imposed by statute, regulation,
contract, or other circumstances). 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.” N. Ind. Pub. Serv. Co. v. Aqua Envtl.
Container Corp., 102 N.E.3d 290, 301 (Ind. Ct. App. 2018).
[34] “In Indiana, the exclusive possession of facts or evidence by a party, coupled
with the suppression of the facts or evidence by that party, may result in an
inference that the production of the evidence would be against the interest of
the party which suppresses it.” Porter v. Irvin’s Interstate Brick & Block Co., Inc.,
691 N.E.2d 1363, 1364-1365 (Ind. Ct. App. 1998) (citing Westervelt v. Nat’l Mfg.
Co., 69 N.E. 169, 172 (Ind. App. 1903)). This rule is typically applied “to a
Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019 Page 18 of 27
party which has suppressed evidence believed to be in its control at the time of
the law suit.” Id. at 1365. Like we held in Porter, “we see no reason why [this
rule] should not be applied where the party spoliates evidence prior to the
commencement of a law suit that the party knew or should have known was
imminent.” Id.
[35] Here, we agree with Lenart that Golden Corral was immediately on notice of
her illness and was contacted by her attorney within the ninety-day period
during which Golden Corral retained its temperature logs. The buffet
temperature logs were likewise relevant to the issue of whether Lenart
contracted a foodborne pathogen from the barbeque chicken wings she
consumed as the chicken wings had been prepared and served on Golden
Corral’s buffet. Under these circumstances, Golden Corral had a duty to
maintain such records. Because Golden Corral destroyed the buffet
temperature logs despite its knowledge and duty, the spoliation instruction was
warranted.
[36] Golden Corral also argues that the spoliation instruction was improper because
it had no duty to preserve the plain chicken wing that was brought to the
manager’s attention. We agree with Golden Corral that Lenart has not
established that Golden Corral had a duty to keep the plain chicken wing that
was allegedly undercooked. Notwithstanding, Golden Corral has not
established a reasonable probability that such affected its substantial rights. To
be sure, Lenart presented direct and circumstantial evidence from which the
Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019 Page 19 of 27
jury could have reasonably reached the same conclusion permitted by the
negative inference instruction.
B. Res Ipsa Loquitur
[37] We next consider whether the instruction on the doctrine of res ipsa loquitur was
warranted given the facts of this case. The trial court, over Golden Corral’s
objection, instructed the jury with regard to the elements of res ipsa loquitur in
Final Instruction No. 19, which provided:
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 Kristina Lenart proves all of the following by the greater
weight of the evidence:
1. Mrs. Lenart was injured as a result of consuming the under
cooked chicken wings;
2. Only Golden Corral controlled the undercooked chicken
wings; and
3. Under normal circumstances Mrs. Lenart would not have
gotten ill unless Golden Corral was negligent.
Then you may infer that the incident resulted from Golden
Corral’s negligence.
Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019 Page 20 of 27
You may consider this inference with all of the other evidence in
arriving at your verdict.
Appellant’s Appendix Vol. 5 at 34. This instruction was derived from Indiana
Civil Pattern Jury Instruction 325 and purports to instruct the jury on the
doctrine of res ipsa loquitur. The doctrine of res ipsa loquitur is a qualified
exception to the general rule that the mere fact of injury will not create an
inference of negligence. Syfu v. Quinn, 826 N.E.2d 699, 703 (Ind. Ct. App.
2005).
[38] Res ipsa loquitur literally means, “the thing speaks for itself.” Narducci v. Tedrow,
736 N.E.2d 1288, 1292 (Ind. Ct. App. 2000). The doctrine of res ipsa loquitur is
a rule of evidence that “permits an assumption that in some situations an
occurrence is so unusual that, absent a reasonable justification or explanation,
the person in control of the situation should be held responsible.” Hale v. SS
Liquors, Inc., 956 N.E.2d 1189, 1194 (Ind. Ct. App. 2011). Specifically, this
court has held that:
Under the doctrine of 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 as in the ordinary course of
things does not happen if those who have management of the
injuring instrumentality use proper care.
Vogler v. Dominguez, 624 N.E.2d 56, 61 (Ind. Ct. App. 1993), trans. denied.
Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019 Page 21 of 27
[39] Application of the doctrine does not in any way depend on the standard of care
imposed by law but, rather, depends entirely upon the nature of the occurrence
out of which the injury arose. Narducci, 736 N.E.2d at 1292. The central
question involved in the use of the res ipsa loquitur doctrine is whether the
incident more probably resulted from the defendant’s negligence rather than
from some other cause. K-Mart Corp. v. Gipson, 563 N.E.2d 667, 669 (Ind. Ct.
App. 1990). As we have before stated:
When presented with a request for a res ipsa loquitur instruction,
the trial court’s duty is to determine whether the plaintiff
produced evidence from which the jury could reasonably
conclude the existence of the underlying elements of exclusive
control and probability of negligence. This is a sufficiency
question. There only need be evidence and reasonable inferences
therefrom, which, when viewed in the light most favorable to the
proponent, would support the [theory] contained in the
instruction. If there is no such evidence, the instruction is
properly refused. On the other hand, if there is evidence from
which a jury could reasonably find the existence of the elements,
then the conditional res ipsa loquitur instruction, which merely
tells the jury that if they do find the existence of these elements
then they may draw the inference of negligence, must be given.
Sharp v. LaBrec, Inc., 642 N.E.2d 990, 993 (Ind. Ct. App. 1994), trans. denied.
[40] It is not necessary for a plaintiff to exclude every other possibility other than the
defendant’s negligence as a cause for the plaintiff’s injury. Merriman v. Kraft,
249 N.E.2d 485, 487 (Ind. 1969). A plaintiff relying upon the doctrine “may
show that the event or occurrence was more probably the result of negligence
by relying upon common sense and experience or by expert testimony.” Gold v.
Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019 Page 22 of 27
Ishak, 720 N.E.2d 1175, 1181 (Ind. Ct. App. 1999) (citing Shull v. B.F. Goodrich
Co., 477 N.E.2d 924, 928 (Ind. Ct. App. 1985), trans. denied), trans. denied
(emphasis omitted). We further note that the quantum of evidence necessary
for the giving of an instruction “is deliberately set at a relatively low level in
order to assure the right of parties to have the trier of fact determine factual
disputes thus preserving the constitutional rights to a trial by jury.” Shull, 477
N.E.2d at 927-28.
[41] Golden Corral argues that Lenart cannot identify the instrumentality that
caused her illness/injury or demonstrate that such instrumentality was within
Golden Corral’s exclusive control. We disagree. Lenart’s claim was that she
suffered from food poisoning after she consumed undercooked barbeque
chicken wings at Golden Corral. She thus identified the instrumentality as the
chicken wing she consumed.
[42] The facts most favorable to Lenart are that she had no medical history of
abdominal problems, she was feeling fine before she went to Golden Corral,
and within two hours of eating barbeque chicken wings at Golden Corral she
became violently ill with diarrhea and intense vomiting. Further, there are two
foodborne pathogens that have incubation periods that correlate with the onset
of Lenart’s symptoms, one of which (staphylococcus) is also associated with
poultry. Lenart also presented evidence that plain chicken wings exclusively
prepared and served by Golden Corral were undercooked and that undercooked
chicken can be contaminated with a foodborne pathogen. A reasonable
inference could be drawn that the barbeque chicken wings Lenart ate were
Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019 Page 23 of 27
similarly undercooked and contaminated. Lenart’s expert witness opined that
“[w]hen you have a temporal relationship” between food consumption and the
development of symptoms like Lenart experienced, it “seems reasonable and
appropriate” that Lenart’s vomiting resulted from eating undercooked chicken
wings contaminated with a foodborne pathogen and that such vomiting caused
her hernia. Appellant’s Appendix Vol. 2 at 139.
[43] Once a plaintiff has presented sufficient evidence to bring himself within the
operation of the doctrine, the burden of going forward with the evidence to
explain the accident is cast upon the defendant. Hammond v. Scot Lad Foods,
Inc., 436 N.E.2d 362, 364 (Ind. Ct. App. 1982). Here, Golden Corral had the
opportunity to defend itself and did offer other possible explanations for
Lenart’s sickness (i.e., virus or foodborne pathogen with longer incubation
period that Lenart contracted before she visited Golden Corral) and resulting
injury. However, even though the defendant comes forward with an
explanation of the accident and evidence of his careful inspection, tests, and
due care, the inference of negligence drawn from the facts does not disappear
from the case, but instead remains, and is placed upon the scales to be weighed
by the trier of fact along with any and all explanations of the defendant, as well
as all of the other evidence. Id.[44] In short, Lenart presented sufficient evidence from which a jury could
reasonably find the existence of the elements of res ipsa loquitur. In such case,
“the conditional res ipsa loquitur instruction, which merely tells the jury that if
they do find the existence of these elements then they may draw the inference of
Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019 Page 24 of 27
negligence, must be given.” See Sharp, 642 N.E.2d at 993. The trial court did
not abuse its discretion in instructing the jury on the doctrine of res ipsa loquitur.
4. IPLA
[45] Golden Corral argues that the trial court erred in allowing the case to be tried as
a negligence action as Lenart’s claim is governed exclusively by the IPLA. 7
Specifically, Golden Corral maintains that the barbeque chicken wing (the
claimed defective product) is personalty and that it is a manufacturer by virtue
of the preparation and cooking process. Lenart disagrees, asserting that her
visit to Golden Corral predominately involved the sale of a service. Lenart also
argues that Golden Corral does not qualify as a manufacturer so as to fall
within the ambit of the IPLA. The trial court agreed with Lenart insofar as it
concluded that Golden Corral was not a manufacturer.
[46] The IPLA “governs all actions that are: (1) brought by a user or consumer; (2)
against a manufacturer or seller; and (3) for physical harm caused by a product;
regardless of the substantive legal theory or theories upon which the action is
brought.” Ind. Code § 34-20-1-1; Ind. Code § 34-6-2-115 (defining “product
liability action”).
[47] Under the IPLA, a manufacturer is “a person or an entity who designs,
assembles, fabricates, produces, constructs, or otherwise prepares a product or a
7
Prior to trial, Golden Corral unsuccessfully moved in limine to exclude any evidence alleging that it failed
to exercise reasonable care or was negligent because Lenart’s claim was governed exclusively by the IPLA.
Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019 Page 25 of 27
component part of a product before the sale of the product to a user or
consumer.” I.C. § 34-6-2-77(a). Golden Corral asserts that its control over the
food preparation and cooking process makes it a manufacturer of food that it
serves in its restaurant. See I.C. § 34-6-2-77(a)(2). In the alternative, Golden
Corral asserts that it is deemed a manufacturer because it is a seller that alters or
modifies the product in a significant manner before selling it to the ultimate
consumer. See I.C. § 34-6-2-77(a)(3). Specifically, Golden Corral claims that
through the cooking process, it turns inedible, raw chicken into a product that is
edible and delicious. We are not persuaded.
[48] There are no Indiana cases that directly address whether a restaurant is a
manufacturer for purposes of the IPLA. We therefore look to cases in which
we have found an entity to be a manufacturer. In Lenhardt Tool & Die Co. v.
Lumpe, 703 N.E.2d 1079, 1085 (Ind. Ct. App. 1998), trans. denied, this court
stated that “[w]here an entity reconditions, alters, or modifies a product or raw
material to the extent that a new product has been introduced into the stream of
commerce, the entity is a manufacturer and provider of products under the
[IPLA].” The court noted that a plant would ship solid blocks of metal to
Lenhardt Tool & Die (LTD) with drawings and specifications. LTD would
then machine the block of metal into molds per the designs found in the
drawings and specifications. We held that “[LTD] transformed the metal block
into ‘a new product’ that is substantially different from the raw material used.
Therefore, it has introduced a new product into the stream of commerce and
provided products to [the plant], not mere services.” Id.Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019 Page 26 of 27
[49] In this case, Golden Corral prepared and cooked the raw chicken wings it
received from its distributor by placing them in a fryer at a set temperature for a
set amount of time. At the end of the cooking process, the chicken wing was
still a chicken wing, although now (if cooked properly) safe for human
consumption. The cooking process did not substantially alter the chicken wing
or create a new product. The trial court did not err in concluding that Lenart’s
action was not controlled by the IPLA.
[50] Judgment affirmed.
Najam, J. and Pyle, J., concur.
Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019 Page 27 of 27