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

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANTS

Jeffrey J. Stesiak

James P. Barth

Pfeifer, Morgan & Stesiak

South Bend, Indiana

ATTORNEYS FOR APPELLEE,

MENARD, INC.

Karl J. Veracco

Larry L. Barnard

Carson LLP

Fort Wayne, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Walter Griffin, Jr., and Candus 

Griffin,

Appellants-Plaintiffs,

v.

Menard, Inc. and Briggs 

Plumbing, LLC,

Appellee-Defendants.

October 20, 2020

Court of Appeals Case No.

20A-CT-310

Appeal from the Elkhart Superior 

Court

The Honorable Stephen R. 

Bowers, Judge

Trial Court Cause No.

20D02-1603-CT-56

Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CT-310 | October 20, 2020 Page 2 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 
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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
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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). 
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[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-thenight “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 
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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 
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[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 
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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
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[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 nonmovant to “come forward with contrary evidence” showing an 

issue for the trier of fact. Id. at 761-62 (internal quotation marks 
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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 
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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 
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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.
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[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 
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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, 
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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
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[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. 
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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, 
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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.