Recently, the Indiana Supreme Court dealt with the issue to handle potential evidence which is not preserved and the Court declared that the issue is within the discretion of the trial court.
The case involved a person who was injured when she tripped on a lobby floormat while leaving Community Hospital and sued for negligence. Plaintiff’s counsel sent a letter shortly after the fall requesting the all video evidence be preserved. The hospital security only preserved a short clip of approximately 10–12 seconds from a camera that captured the fall which was produced to plaintiff’s counsel. The hospital admitted there were three cameras that covered the area, but only one captured the fall. The footage from the other cameras, and earlier footage from the camera that captured the fall were not preserved.
The Plaintiff moved for sanctions arguing that by not preserving all of the cameras the hospital committed spoilation and requested a jury instruction allowing an adverse inference if a party fails to preserve evidence. The trial court denied sanctions and the adverse-inference instruction and the jury returned a verdict for the hospital. The Court of Appeals reversed, in part, finding potential spoliation and error in refusing the instruction. The Supreme Court granted transfer and vacated that opinion.
The majority of the Indiana Supreme Court held that that the trial court did not abuse its discretion in finding no spoliation even though the Plaintiff argued that the preserved video was distant and pixelated so earlier footage which was not preserved would likely shown the small, foot-sized raised portion of the mat. Ultimately, the Supreme Court majority affirming the trial judgment for the hospital.
However, Justice Goff wrote a dissenting opinion arguing the trial court abused its discretion by declining to give Plaintiff’s adverse-inference instruction. as Justice Goff stated. He emphasized the factual sensitivity of spoliation determinations and stated “[s]poliation is a ‘discovery abuse that involves the intentional or negligent destruction, mutilation, alteration, or concealment of physical evidence’ in pending or reasonably foreseeable litigation”. He argued that the question of whether evidence was spoliated and the inference to drawn is better decided by a jury after evidentiary presentation. Justice Goff argued this would be classic jury factual question given the Plaintiff’s preservation letter shortly after the fall, the preserved video’s poor angle and pixelation blocking the relevant portion of the mat, the unpreserved footage from two other cameras which might have shown the mat condition before the fall.
While the plaintiff did not prevail, this case is a reminder of the need for a carefully crafted preservation letter in cases where evidence might be change or be deleted.
Plaintiff Caryl Rosen v. Community Healthcare System d/b/a Community Hospital, Indiana, Supreme Court No. 25S-CT-217 (Decided March 11, 2026)
James A.L. Buddenbaum is a partner in the law firm of Parr Richey Frandsen Patterson Kruse LLP with offices in Indianapolis and Lebanon, Indiana and has more than 35 years’ experience litigating in state and federal courts for utilities, local government, healthcare providers and businesses on a variety of issues. The statements contained herein are matters of opinion and general information only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have any questions regarding this article, please contact an attorney.