Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019 Page 1 of 27

ATTORNEYS FOR APPELLANT

Crystal G. Rowe

New Albany, Indiana

Michael Wroblewski

Adam S. Ira

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Marc S. Sedwick

New Albany, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Golden Corral Corporation,

Appellant-Defendant,

v.

Kristina M. Lenart,

Appellee-Plaintiff

June 19, 2019

Court of Appeals Case No.

18A-CT-704

Appeal from the Clark Circuit 

Court

The Honorable Vicki L. 

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 
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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 twelveyear-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. 
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[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,
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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.
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[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 
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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.
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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.
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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 
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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 
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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 inperson 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.
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[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 
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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.
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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.
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pathogen6 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.
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[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.
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[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. 
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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 
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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 
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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 
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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.
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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 22 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 23 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 24 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 25 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 26 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 27 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.