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March 16, 2026 Get Citation Alerts Download PDF Add Note

Pandel Ludwig v. Flaherty & Collins, Inc.

Indiana Court of Appeals

• Citations: None known
• Docket Number: 25A-CT-00941
• Judges: Weissmann, DeBoer, Bradford

• Disposition: Affirmed

• Opinion

• Authorities (33)

• Cited By (0)

• Summaries (0)

• Similar Cases (2.8K)

• PDF

Disposition

Affirmed

Combined Opinion

                        by Judge DeBoer

IN THE

Court of Appeals of Indiana
Pandel Ludwig, FILED
Mar 16 2026, 10:14 am
Appellant-Plaintiff
CLERK
Indiana Supreme Court
Court of Appeals
v. and Tax Court

Flaherty & Collins, Inc.,
Appellee-Defendant

March 16, 2026
Court of Appeals Case No.
25A-CT-941
Appeal from the Marion Superior Court
The Honorable Gary L. Miller, Judge
Trial Court Cause No.
49D03-2303-CT-13118

Opinion by Judge DeBoer
Judges Bradford and Weissmann concur.

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 1 of 32
DeBoer, Judge.

Case Summary
[1] Pandel Ludwig sued Flaherty & Collins, Inc. (Flaherty) after she slipped and

fell on ice outside the fitness center in one of its apartment complexes. A jury

returned a verdict in Flaherty’s favor, and Ludwig moved for a new trial on two

grounds. First, she argued the trial court had erred in rejecting her proposed

jury instruction on spoliation of evidence given Flaherty’s failure to preserve

security camera footage from the day of her fall. Second, she claimed the way

jurors completed the verdict form indicated they misunderstood the effect of

their verdict. The court denied that motion, and Ludwig appeals. Because the

court did not abuse its discretion in denying a new trial, we affirm.

Facts and Procedural History
[2] On the afternoon of January 8, 2022, Ludwig returned home to her apartment

at a complex in Danville owned by Flaherty. As she did so, she noticed sleet

and hail starting to fall and heard one of her neighbors tell a maintenance

worker that it was “getting slick out . . . .” Transcript Vol. 3 at 39. She also

received a weather alert on her phone notifying her of the “potential for bad

weather” and she knew “there was [a] possibility of slick sidewalks . . . .” Id. at

1. Nonetheless, at around 6:00 p.m., she decided to take a short walk to the

complex’s fitness center. On the way, she saw that salt had been spread in front

of her apartment building, which caused her to “walk with caution” in case

there were any slick spots on the sidewalk. Id. at 41.

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 2 of 32
[3] Ludwig arrived at the fitness center without incident. After exercising for some

time, Ludwig’s daughter unexpectedly appeared outside the fitness center’s

door. Ludwig let her in, and she told Ludwig that she had gotten into trouble at

home. Ludwig decided to cut her workout short and walk back to the

apartment with her daughter. Carrying a water bottle and cell phone in her

hands, Ludwig left the fitness center through the same door she and her

daughter had entered. She slipped and fell on the icy sidewalk outside,

breaking her ankle in multiple places.

[4] A couple days later, Ludwig’s boyfriend told the complex’s office staff about

Ludwig’s fall and mentioned that security cameras inside the fitness center may

have recorded the incident. A Flaherty employee then reviewed the security

camera footage. The camera was pointed directly at the door where Ludwig

had slipped, but its view was obstructed by exercise equipment. See infra Figure

1. The employee who reviewed the footage would later claim Ludwig’s fall was

not captured on the video, so she did not save it. Flaherty’s employees did,

however, complete an incident report to memorialize that “Ludwig had gone to

the gym [over the weekend] when she slipped and fell outside on the sidewalk .

. . .” Exhibits at 22.

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 3 of 32
Figure 1: Ex. at 36.

[5] Roughly one and a half weeks after Flaherty learned of the incident, Ludwig’s

attorney sent a letter of representation requesting “preservation of . . . video.”

Tr. Vol. 2 at 73. But the complex’s security system was programmed to

automatically delete video files after five to six days unless an employee

manually saved them. So, by the time Flaherty received that letter, it claimed

that all of the footage taken on the day of the incident had been recorded over.

[6] In March 2023, Ludwig filed a complaint alleging Flaherty had negligently

failed to, among other things, “maintain the sidewalks of the [complex] free of
Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 4 of 32
ice and snow” or “use salt or another appropriate treatment timely when on

notice of incoming precipitation . . . .” Appellant’s Appendix Vol. 2 at 13. A

two-day jury trial was held in March 2025. The missing security camera

footage was a major theme of Ludwig’s opening statement:

This is a case about a corporation that does not do what it says
it’s going to do. Predictably hurt someone and then fail[] to keep
the evidence.

....

[A Flaherty employee] says they put salt out for freezing rain . . .
. [I]nterestingly, you will find out that she says that . . . the video
of the incident was deleted. Then she later on in the deposition
says, no, I watched it, but then it didn’t really show anything . . .
because there’s a giant exercise machine blocking the view of the
door. But you’ll also see that there’s a big window right here
with no blinds on it that has the sidewalk going to the door . . . .
[S]o that video presumably would have shown whether a worker
went down the sidewalk with salt. . . . But we don’t have that
video to show that they did what they said that they did.

....

And if you look at all the evidence, we do ask you to use
common sense about . . . [w]hat it really means when they say,
oh, the video didn’t show anything, but we don’t have the video.

Tr. Vol. 2 at 17-21, 25.

[7] Ludwig also highlighted the surveillance footage in her case-in-chief. Her

attorney extensively questioned Flaherty’s property manager about when

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 5 of 32
Flaherty was notified of Ludwig’s fall and when the footage had been deleted,

including in the following exchange:

Q: [Y]ou’re saying that by the time you [knew] you need[ed]
to preserve that video, the video had already been automatically
deleted?

A: Correct.

....

Q: The letter I’m showing that we sent roughly a week and a
half after [Ludwig’s ] injury, . . . do you know how many days
the surveillance in January 2022 would survive before deletion?

A: I believe I can’t 100% say this, it’s [five] or [six] days.

Tr. Vol. 2 at 74-75 (cleaned up). He also asked her about what might have been

depicted in the video had it been preserved:

Q: If that video had not been deleted . . . would it have
captured the area that you understand [Ludwig] fell?

A: No. . . . [Y]ou can’t see out the door. I mean it’s got glass
on it, but you could not see.

Q: Does [Flaherty] have any knowledge or opinion about
how far away [Ludwig] was from the door when she fell?

A: No. I don’t remember that that information was ever
given to us. . . . Did she fall on this sidewalk, did she fall out
there, did she fall on the grass? I honestly do not know that.

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 6 of 32
Q: If she would have fallen . . . immediately stepping out the
door, if that video had been preserved, could it have seen her fall
if the door was still open?

A: It might have if the door was open, but it was dark and
you could not see out the door.

Id. at 77-78 (cleaned up).

[8] After the close of evidence, the parties each submitted proposed final jury

instructions to the trial court. Ludwig’s proposed instructions included an

adverse inference instruction based on Indiana Model Civil Jury Instruction

535—Failure to Produce Evidence (Spoliation). See infra Figure 2. Without

explaining why, the court ruled from the bench it would not give the

instruction.

Figure 2: Appellant’s App. Vol. 2 at 28.

[9] Even without the instruction, Ludwig told the jury during her closing argument

that it could infer the missing security camera footage would have been

unfavorable to Flaherty’s defense:

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 7 of 32
[Flaherty] could have done something to help you guys. To help
us know what the truth is, know for certain what the truth is. We
could have had a camera . . . outside the fitness center . . . . At
minimum, have the camera in the fitness center in a place that
actually shows the door instead of showing people working out
on the machine . . . . And of course have a system that doesn’t
delete the video quickly. . . .

[I]f the video actually shows what [Flaherty] say[s] it shows, be
pretty darn sure that they would keep it. . . . [Y]ou would think
that if they had someone coming down, . . . all the way down,
you would think that they would . . . want the video that shows
someone walking past that window. . . . There’s no way that that
video didn’t show whether someone went . . . up and down that
sidewalk.

Tr. Vol. 3 at 76-78.

[10] Flaherty’s counsel agreed the jury was free to make that inference, but argued

the property manager had no incentive to delete evidence or lie about what the

video would have shown had it been preserved:

Now I understand this argument about the video, but I want to
break that down for a moment. . . . [F]irst of all, you saw [the
property manager]. . . . If you think that she purposefully
destroyed evidence [in] furtherance of preserving the Flaherty . . .
conspiracy, I can’t stop you. But, I guess I’d ask you, she’s
retiring, is that something you would expect her to do and to
what end?

Id. at 87. A more reasonable interpretation of the evidence, he argued, was that

Flaherty “saw the weather was coming[,] . . . started salting[,] . . . continued to

salt, and during that time period, [Ludwig] slipped and fell.” Id. at 93. And

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 8 of 32
according to Flaherty, Ludwig was mostly at fault for that fall because she

chose to walk “in January in Indiana and she [knew] that [we were] in the

middle of a weather event.” Id. at 94.

[11] Following their deliberations, the jury returned a verdict apportioning ninety

percent of the fault for Ludwig’s injuries to her and ten percent to Flaherty. 1 See

infra Figure 3. The trial court polled the jurors to confirm their verdict before

releasing them.

Figure 3: Appellant’s App. Vol. 2 at 79.

1
The Indiana Comparative Fault Act requires the jury to “determine the percentage of fault of the claimant,
of the defendant, and of any person who is a nonparty.” Ind. Code § 34-51-2-7 (b)(1). If the jury finds the
plaintiff more than fifty percent at fault, it must “return a verdict for the defendant and no further deliberation
of the jury is required.” I.C. § 34-51-2-7(b)(2).

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 9 of 32
[12] The day after trial, the court made the verdict form available for counsel to view

on the Chronological Case Summary and indicated it would wait seven days to

enter judgment. During that time, Ludwig filed a motion for a new trial

arguing the crossed-out entries on the verdict form “provided prima facie

evidence the jury had a fundamental misunderstanding of the instructions.” Id.

at 84. She also argued that the trial court’s decision not to give the adverse

inference instruction meant the jury did not know it was permitted to infer the

missing surveillance footage was harmful to Flaherty’s defense. The court

denied that motion without written findings and entered judgment in Flaherty’s

favor. Ludwig now appeals.

Discussion and Decision2
[13] Motions for a new trial are governed by Indiana Trial Rule 59(J)(1), which

provides that if the trial court “determines that prejudicial or harmful error has

been committed, [it] shall take such action as will cure the error, including . . .

[g]rant[ing] a new trial . . . .” Trial courts have “wide discretion to correct

errors and to grant new trials.” Newland Res., LLC v. Branham Corp., 918 N.E.2d

763, 772 (Ind. Ct. App. 2009) (quoting Leroy v. Kucharski, 878 N.E.2d 247, 250

(Ind. Ct. App. 2007), trans. denied). We will reverse if the court abused its

discretion, meaning its decision was “against the logic and effect of the facts

2
We held oral argument in this case on February 12, 2025, in the Court of Appeals courtroom in
Indianapolis. We thank counsel for the parties and amicus curiae, the Indiana Trial Lawyers Association, for
their excellent written and oral presentations.

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 10 of 32
and circumstances before it[,]” or if the record demonstrates “a flagrant

injustice has occurred[] or . . . the appellant has presented a very strong case for

relief . . . .” Id. In our review, “we award the trial court’s action with a strong

presumption of correctness.” Pendleton v. Aguilar, 827 N.E.2d 614, 624 (Ind. Ct.

App. 2005), reh’g denied, trans. denied.

1. Spoliation of Evidence [14] Ludwig first contends a new trial was warranted because of the trial court’s

failure to give her proposed adverse inference spoliation instruction to the jury.

We generally “entrust instructing the jury to the sound discretion of the trial

court, and we . . . review a trial court’s instructions for an abuse of that

discretion.” Ellis v. State, 194 N.E.3d 1205, 1214 (Ind. Ct. App. 2022), trans.

denied. When a party challenges the court’s failure to give a proposed

instruction, we determine whether (1) the instruction correctly stated the law,

(2) the instruction was supported by evidence in the record, and (3) the

substance of the instruction was covered by other instructions. Humphrey v.

Tuck, 151 N.E.3d 1203, 1207 (Ind. 2020). The parties here primarily dispute

whether the adverse inference instruction was supported by the evidence, so we

focus our analysis there.

A. Adverse Inference Instructions Generally

[15] Spoliation is the destruction, material alteration, or concealment of “evidence

that a party has a duty to preserve for pending or reasonably foreseeable

litigation.” Rosen v. Cmty. Healthcare Sys., No. 25S-CT-217, slip. op. at 7 (Ind.

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 11 of 32
Mar. 11, 2026). It can occur in two forms: first-party and third-party spoliation.

Safeco Ins. Co. of Ind. v. Blue Sky Innovation Grp., 230 N.E.3d 898, 902 (Ind.

2024). “First-party spoliation ‘refers to spoliation of evidence by a party to the

principal litigation,’ and third-party spoliation refers to the spoliation of

evidence ‘by a non-party.’” Id. (quoting Gribben v. Wal-Mart Stores, Inc., 824

N.E.2d 349, 350 (Ind. 2005)). The case at bar involves a claim of first-party

spoliation, i.e., spoliation by a party to this lawsuit.

[16] Our Supreme Court has held that “[i]f spoliation by a party to a lawsuit is

proved, rules of evidence permit the jury to infer that the missing evidence was

unfavorable to that party.” Glotzbach v. Froman, 854 N.E.2d 337, 338 (Ind.

2006). Indiana’s Model Civil Jury Instructions provide an instruction that may

be given to the jury when spoliation has occurred: “If a party fails to [testify

about facts][produce a witness][produce documents] under the party’s exclusive

[knowledge][control], you may conclude that the [testimony the witness could

have given][documents the witness could have produced] would have been

unfavorable to the party’s case.” Ind. Model Civ. Jury Instruction 535. Ludwig

requested that instruction be given here.

[17] Generally, a “court may refuse a jury instruction only when ‘[n]one of the facts’

in the record would support the legal theory offered in the instruction.”

Humphrey, 151 N.E.3d at 1207 (quoting Sims v. Huntington, 393 N.E.2d 135, 139

(Ind. 1979)). And here, Ludwig argues “[t]he trial contained an abundance of

evidence indicating a spoliation instruction was appropriate and necessary . . .

.” Appellant’s Brief at 15-16. But two considerations lead us to the conclusion

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 12 of 32
that even when there is evidence that spoliation occurred, trial courts retain

broad discretion to fashion an appropriate remedy, which may or may not

include giving an adverse inference instruction.

[18] First, our Supreme Court recently reaffirmed the principle that a trial court will

be found to have abused its discretion in deciding whether spoliation occurred

and how to remedy it only if “its decision [was] unlawful, illogical, or otherwise

unreasonable.” Rosen, slip. op. at 6 (quoting Expert Pool Builders, LLC v.

Vangundy, 224 N.E.3d 309, 312 (Ind. 2024)). And as this Court had previously

recognized,

[w]hen deciding whether to sanction a party for the spoliation of
evidence, courts consider two primary factors: (1) the degree of
culpability of the party who lost or destroyed the evidence; and
(2) the degree of actual prejudice to the other party. Culpability
can range along a continuum, from destruction intended to make
evidence unavailable in litigation to inadvertent loss of
information for reasons unrelated to the litigation. Prejudice
likewise can range along a continuum, from an inability to prove
claims or defenses to little or no impact on the presentation of
proof.

....

. . . [T]he culpability versus prejudice balancing act . . . is best left
to the trial court. And as we have observed, a variety of spoliation
remedies are available to a party to litigation, such as potent
discovery sanctions and an inference that the spoliated evidence
was unfavorable to the party responsible.

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 13 of 32
N. Ind. Pub. Serv. Co. v. Aqua Env’t Container Corp., 102 N.E.3d 290, 303-40 (Ind.

Ct. App. 2018) (emphasis added) (internal citations and quotation marks

omitted).

To hold that the adverse inference instruction is “the only logical solution” to

spoliation (as the Indiana Trial Lawyers Association (ITLA) urges us to do),

Amicus Br. at 14, would require us to strip trial courts of their discretion to

“[d]etermin[e] whether sanctions are warranted and, if so, what they should

include . . . .” Carmichael v. Separators, Inc., 148 N.E.3d 1048, 1060 (Ind. Ct.

App. 2020) (quoting Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182, 189

(Ind. 2011)), trans. denied. And we would also need to ignore the observation

from our Supreme Court that “it would be difficult to come up with a detailed

approach to sanctions that would apply in every case . . . .” Gordon, 952 N.E.2d

at 189.

[19] Second, our Supreme Court has recognized “that intentional first-party

spoliation of evidence may be used to establish an inference that the spoliated

evidence was unfavorable to the party responsible.” Gribben, 824 N.E.2d at 351

(emphasis added). But it has never recognized the same for negligent spoliation,

and the Court signaled in Rosen that it remains an open question under Indiana

law “whether mere negligence is enough to justify the sanction of an adverse

inference instruction, or whether instead something more is required.” Rosen,

slip. op. at 7 n.2. While this Court has appeared to suggest the adverse inference

instruction may be given to sanction negligent spoliation, that notion seems to

have entered our jurisprudence without analysis. See, e.g., N. Ind. Pub. Serv. Co.,

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 14 of 32
102 N.E.3d at 302, 304 (explaining that “[a] variety of spoliation remedies are

available . . . , such as ‘potent’ discovery sanctions and an inference that the

spoliated evidence was unfavorable to the party responsible” and remanding for

“the trial court to determine the appropriate remedy, if any, for [a party’s]

negligent spoliation of evidence” (quoting Shirey v. Flenar, 89 N.E.3d 1102, 1107

(Ind. Ct. App. 2017) (contrasting remedies for first-party spoliation from third-

party spoliation))) (emphasis added).

[20] While some jurisdictions do permit giving an adverse inference instruction as a

sanction for negligent spoliation, many courts and scholars have expressly

rejected that approach as illogical:

[A]n adverse inference instruction makes little logical sense if
given as a sanction for negligent breach of the duty to preserve,
because the inference that a party failed to preserve evidence
because it believed that the evidence was harmful to its case does
not flow from [negligence]. . . . The more logical inference is that
the party was disorganized, or distracted, or technically
challenged, or overextended, not that it failed to preserve
evidence because of an awareness that it was harmful.

Michael W. Deyo, Deconstructing Pension Committee: The Evolving Rules of

Evidence Spoliation and Sanctions in the Electronic Discovery Era, 75 ALB. L. REV.

305, 325 (2012) (quoting Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497,

526 (D. Md. 2010)).

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 15 of 32
[21] Many courts, including the Seventh Circuit, have also reasoned that the adverse

inference instruction is a harsh remedy, so to give the instruction there must be

evidence the alleged spoliator acted not only intentionally, but in bad faith:

In this circuit, when a party intentionally destroys evidence in
bad faith, the judge may instruct the jury to infer the evidence
contained incriminatory content. Faas v. Sears, Roebuck & Co.,
532 F.3d 633, 644 (7th Cir. 2008). When considering the
propriety of such an adverse inference instruction, “[t]he crucial
element is not that the evidence was destroyed but rather the
reason for the destruction.” Park v. City of Chi., 297 F.3d 606, 615
(7th Cir. 2002) (quoting S.C. Johnson & Son, Inc. v. Louisville &
Nashville R.R. Co., 695 F.2d 253, 258 (7th Cir. 1982)[, reh’g denied,
reh’g on banc denied]) . . . . A party destroys a document in bad
faith when it does so ‘for the purpose of hiding adverse
information.’” Faas, 532 F.3d at 644 (quoting Rummery v. Ill. Bell
Tel. Co., 250 F.3d 553, 558 (7th Cir. 2001)).

Bracey v. Grondin, 712 F.3d 1012, 1018-19 (7th Cir. 2013), reh’g denied, cert.

denied (first alteration in original); see also Sharp v. Hylas Yachts, LLC, 872 F.3d

31, 41-42 (1st Cir. 2017) (instructing jurors they’re “entitled in [their]

deliberations to draw a negative inference . . . ‘usually makes sense only where

the evidence permits a finding of bad faith destruction.’” (quoting United States

v. Laurent, 607 F.3d 895, 902 (1st Cir. 2010), cert. denied)) (alteration in original);

Bull v. United Parcel Serv., Inc., 665 F.3d 68, 79 (3d Cir. 2012) (“[A] finding of

bad faith is pivotal to a spoliation determination.”); Jones v. Norton, 809 F.3d

564, 580 (10th Cir. 2015) (“‘Mere negligence in losing or destroying’ evidence is

not enough to support imposition of” adverse inferences. (quoting Turner v. Pub.

Serv. Co. of Colo., 563 F.3d 1136, 1149 (10th Cir. 2009))), cert denied.

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 16 of 32
[22] Further complicating our analysis is that this case involves a claim that

electronically stored information (ESI) was spoliated. See, e.g., Brookshire Bros.,

Ltd. v. Aldridge, 438 S.W.3d 9, 16-17 (Tex. 2014) (analyzing allegation that

surveillance footage was recorded over as a claim of spoliated ESI). As many

legal professionals and jurists have come to realize,

[p]reservation of ESI presents challenging issues because ESI
may easily be inadvertently destroyed through automatic
processes. To ensure that spoliation does not occur, parties may
need to take affirmative steps to prevent the deletion or
modification of ESI. The spoliation issue is very real and arises
from one basic problem: most companies follow a regular
practice of rotating and writing over backup tapes. This process,
of course, eliminates the original data, and may constitute
spoliation.

Hon. Peter M. Laurait (Ret.), et al., 49A MASS. PRAC. SERIES, § 7:20 (Oct.

2025).

[23] Until recently (and at the time trial was held in this cause), Indiana Trial Rule

37 did not permit the imposition of sanctions when ESI was “lost as a result of

the routine, good faith operation of an electronic information system.” Ind.

Trial Rule 37(E) (2025). But effective January 1, 2026, that rule was amended

to more closely resemble its federal counterpart. 3 Unlike the federal rule,

3
Rule 37(e) of the Federal Rules of Civil Procedure provides:

If [ESI] that should have been preserved in the anticipation or conduct of litigation is lost
because a party failed to take reasonable steps to preserve it, and it cannot be restored or
replaced through additional discovery, the court:

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 17 of 32
however, Rule 37 now makes an adverse inference instruction available without

proof of intent so long as the non-spoliating party has been prejudiced by the

loss of ESI:

A court may impose sanctions on a party for failing to take
reasonable steps to preserve [ESI] that is relevant, material to the
litigation, should have been preserved in anticipation of or during
litigation and is lost because a party fails to take reasonable steps
to preserve it, cannot be restored or replaced through additional
discovery, and either prejudice results to another party from loss of the
information or the party acted with the intent to deprive another party of
the information’s use in the litigation.

The sanctions available to the court include the following: a
presumption that the lost information was unfavorable to the
party, an instruction the jury must presume the information was
unfavorable to the party, 4 dismissal of the action, entry of a
default judgment, or other orders as are just and necessary to
cure the prejudice.

(1) upon finding prejudice to another party from loss of the information, may order measures
no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the
information’s use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the
party; or
(C) dismiss the action or enter a default judgment.
(emphasis added); see also Hoffer v. Tellone, 128 F.4th 433, 438 (2d Cir. 2025) (Under FRCP Rule 37(e), “only
the intentional loss or destruction of [ESI] gives rise to an inference that the evidence was unfavorable to the
party responsible for that loss or destruction . . . .”).
4
Thus, in the case of spoliated ESI, Indiana law now permits a mandatory adverse presumption instruction
(i.e., “must presume”) that is even harsher than the permissive adverse inference instruction one contemplated
by Model Instruction 535 (i.e., “may conclude”).

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 18 of 32
(emphasis added).

[24] But given the recency of these amendments, Indiana’s courts have not had the

opportunity to comment on how to analyze claims of spoliated ESI under Rule

37(D), let alone discuss whether and when courts should give the mandatory

adverse presumption instruction now permitted by the rule. See supra note 4.

Nor is it clear under Rosen whether the amendments to Rule 37 indicate that

our Supreme Court agrees with the federal Advisory Committee “that ESI is

inherently different from other forms of evidence and merits a different standard

for spoliation sanctions than that applied to other forms of evidence.” Hon.

Shira A. Scheindlin, et al., The Adverse Inference Instruction After Revised Rule

37(E): An Evidence-Based Proposal, 83 FORDHAM L. REV. 1299, 1312 (2014).

[25] That said, we do not comment further on these unresolved issues here, as the

parties did not brief them and Flaherty rejected our invitation at oral argument

to explore this topic in depth and instead conceded that negligence would have

been enough to support giving the permissive adverse inference instruction

Ludwig requested at trial. For the purposes of this opinion, we therefore

assume without deciding that Indiana law permits the giving of an adverse

inference instruction when there is evidence a party negligently or intentionally

spoliated surveillance footage. And we confine the remainder of our discussion

to the three points of contention raised by the parties: (1) whether Flaherty had

a duty to preserve video from the day of Ludwig’s fall; (2) whether Flaherty

negligently or intentionally breached that duty; and (3), if so, whether the trial

court’s failure to give the adverse inference instruction was harmless.

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 19 of 32
B. Duty and Breach

[26] As the party claiming spoliation, Ludwig was required to prove “(1) there was a

duty to preserve the evidence, and (2) [Flaherty] either negligently or

intentionally destroyed, mutilated, altered, or concealed the evidence.” N. Ind.

Pub. Serv. Co., 102 N.E.3d at 301. The parties first disagree as to whether

Flaherty had a duty to preserve surveillance footage from the day of Ludwig’s

fall. According to Ludwig, Flaherty was obligated to preserve that video

because it was notified of her injuries two days after the incident and was

“sophisticated enough to be apprised of the possibility of litigation and the need

to preserve evidence . . . .” Appellant’s Br. at 16. Flaherty claims that it had no

such duty because there was “no evidence to suggest [Flaherty] knew litigation

was possible before the video re-recorded.” Appellee’s Br. at 14. We agree

with Ludwig.

[27] A duty to preserve evidence arises “when a first-party claimant ‘knew, or at the

very least, should have known, that litigation was possible, if not probable.’”

Golden Corral Corp. v. Lenart, 127 N.E.3d 1205, 1217 (Ind. Ct. App. 2019)

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

whether Flaherty should have known litigation was possible, we need look no

further than the fact that it learned of Ludwig’s fall two days after it happened

when her boyfriend reported the incident to the complex’s office staff. We see

no reason why a sophisticated landlord who operates apartment complexes

across multiple states would not know that litigation is possible when it learns

that a tenant slipped, fell, and was injured on one of its properties. Indeed,

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 20 of 32
upon being notified of the fall, the complex’s office staff promptly prepared an

incident report, which should have put higher-level Flaherty representatives on

notice of the need to preserve relevant evidence.

[28] That said, the scope of Flaherty’s duty to preserve surveillance footage is not

obvious. As this Court has previously recognized, “a [business], upon

recognizing the threat of litigation, need not ‘preserve every shred of paper,

every e-mail or electronic document, and every backup tape,’ as such a rule

would ‘cripple large corporations . . . that are almost always involved in

litigation.’” Miller v. Fed. Exp. Corp., 6 N.E.3d 1006, 1013 (Ind. Ct. App. 2014)

(quoting Zubulake, 220 F.R.D. at 217), trans. denied. In Rosen, for example, our

Supreme Court found a hospital did not breach its duty to preserve when it

saved a portion of security footage depicting the moment an individual tripped

over a floor mat but did not preserve “earlier footage [that] might have shown

the mat was disheveled . . . .” Slip. op. at 8. Demonstrating that breach of the

duty to preserve is a fact-sensitive inquiry that often turns on the specific

circumstances of each case, the Court reasoned that because the mat was far

from the camera and difficult to see on the footage, “it was reasonable for the

trial judge to conclude that earlier video would have been no more

enlightening.” Id.

[29] Ludwig argues that under the specific facts of this case, Flaherty’s duty to

preserve extended beyond the portion of the surveillance footage around the

time of her fall and encompassed footage from hours earlier. She explains this

was so because the “employees who claimed to have spread salt where Ludwig

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 21 of 32
fell would have been visible . . . as they passed the large window” next to where

she fell. Appellant’s Br. at 16. And such an expansive duty to preserve is

crucial to Ludwig’s argument on appeal, as her discussion of the missing video

during her closing argument focused almost entirely on what surveillance

footage from hours before her fall might have shown had it been preserved.

[30] Flaherty contends that a rule requiring businesses to not only save surveillance

footage from immediately before, during, and after a fall but also from hours

earlier would be overly burdensome. There is some merit to Flaherty’s

position, as “a litigant is under no duty to keep or retain every document in its

possession” and need only “preserve what it knows, or reasonably should

know, is relevant in the action, is reasonably calculated to lead to the discovery

of admissible evidence, is reasonably likely to be requested during discovery[,]

and/or is the subject of a pending discovery request.” Miller, 6 N.E.3d at 1013

(quoting Zubulake, 220 F.R.D. at 217). While it’s clear to us that a property

owner should reasonably know that surveillance footage from some time before,

during, and after a fall might be relevant to litigation, Flaherty might be right

that it could not have reasonably foreseen that Ludwig would request footage

from hours earlier.

[31] But we are mindful that Ludwig’s counsel requested footage from Flaherty less

than two weeks after her fall. We agree with ITLA that “[w]e must place the

duty of preservation of evidence on the party with control[,]” as well as the

consequences that accompany a failure to do so. Amicus Br. at 14. As

Flaherty’s counsel acknowledged at oral argument, modern surveillance

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 22 of 32
systems retain footage for much longer than five days. 5 And the present case is

distinguishable from Rosen because there, the hospital preserved some video of

the fall—which was reasonable under the circumstances—while here, Flaherty

failed to preserve any footage at all. See Rosen, slip. op. at 11 (a party “must do

what is reasonable given the circumstances”).

[32] We do not draw any bright line as to how long Flaherty’s system should have

retained footage from the day of the incident, but it suffices to say that after

being notified of Ludwig’s fall two days after the fact, it was not reasonable for

Flaherty to permit its system to automatically delete footage from that day in as

little as five days. And when Ludwig requested video from Flaherty a mere two

weeks later, she could have reasonably expected that it had not been deleted.

We therefore find that Flaherty’s failure to preserve the video during that short

time frame was at least negligent.

[33] Nonetheless, we will not remand a case for a new trial when the trial court’s

failure to give a jury instruction resulted in harmless error. See Elmer Buchta

Trucking, Inc. v. Stanley, 744 N.E.2d 939, 944 (Ind. 2001) (a party “seeking a

new trial on the basis of an improper jury instruction must show ‘a reasonable

probability that [their] substantial rights . . . have been adversely affected.’”

(quoting Peak v. Campbell, 578 N.E.2d 360, 362 (Ind. 1991))); see also Ind.

5
Specifically, Flaherty’s counsel conceded the security system in place at the time of Ludwig’s fall was
“older” and that a modern system would have held on to footage for a longer period before it was
automatically deleted.

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Appellate Rule 66(A) (“No error or defect in any ruling or order. . . is ground

for granting relief or reversal on appeal where its probable impact, in light of all

the evidence in the case, is sufficiently minor so as not to affect the substantial

rights of the parties.”). We therefore turn to Flaherty’s claim that “any alleged

error was harmless . . . .” Appellee’s Br. at 22.

C. Harmless Error

[34] To show that her substantial rights were adversely affected, Ludwig was

required to prove the trial court’s erroneous instructions “could have formed the

basis for the jury’s verdict.” Torrence v. Gamble, 124 N.E.3d 1249, 1251 (Ind. Ct.

App. 2019). And with respect to the failure to give a permissive adverse

inference instruction, proving as much is a difficult task. Though some courts

have described the instruction as extremely harmful to the alleged spoliator’s

case, our Supreme Court has noted it’s difficult to determine what a jury would

have done with the instruction if it had been given:

[E]ven if the jury infers from the act of spoliation that the
spoliated evidence was somehow unfavorable to the spoliator,
there will typically be no way of telling what precisely the
evidence would have shown and how much it would have
weighed in the spoliation victim’s favor. Without knowing the
content and weight of the spoliated evidence, it would be
impossible for the jury to meaningfully assess what role the
missing evidence would have played in the determination of the
underlying action. The jury could only speculate as to what the
nature of the spoliated evidence was and what effect it might
have had on the outcome of the underlying litigation.

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 24 of 32
Gribben, 824 N.E.2d at 354 -55 (quoting Cedars-Sinai Med. Ctr. v. Superior Ct., 954

P.2d 511, 518 (Cal. 1998)). Indeed, as noted above, Indiana’s model spoliation

instruction (which Ludwig requested here) would have merely instructed the

jury that it may, not must, have made an adverse inference against Flaherty,

and even then, it did not indicate what weight the jury should have given that

inference. See Ind. Model Civ. Jury Instruction 535.

[35] That said, under the present circumstances, even if the jury had been given the

instruction, we agree with Flaherty that Ludwig “cannot escape her own

comparative fault which obviously weighed heavily on the jury.” Appellee’s

Br. at 22. The jury heard testimony about the missing video, heard arguments

from Ludwig and Flaherty that it could infer the video would prove that Flaherty

had not salted the sidewalk, and still it found that Ludwig was overwhelmingly

at fault for her injuries. Even assuming Flaherty failed to salt the sidewalk

outside the fitness center, the jury’s 90-10 comparative fault allocation was

supported by the evidence. After all, Ludwig chose to walk outside in the

middle of an ice storm and testified that it was “common sense” that even when

a walkway has been salted, that “doesn’t mean necessarily there’s no slick

spots.” Tr. Vol. 3 at 41.

[36] Said differently, this case was not a close call. We are mindful of our former

Chief Justice’s observation that it’s easier to find reversible error when the

verdict was close, for example, “where [a] 1% difference in fault separate[d] a

defense verdict from a plaintiff’s verdict.” Penn Harris Madison Sch. Corp. v.

Howard, 861 N.E.2d 1190, 1198 (Ind. 2007) (Shepard, C.J., dissenting). In

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 25 of 32
contrast, when the jury has assigned most of the fault to the plaintiff by, for

example, returning “a defense verdict at 65-35, not really a close call, . . . the

erroneous instruction ‘[would not have] affect[ed] the substantial rights of the

parties . . . .’” Id. (quoting Ind. Trial Rule 61).

[37] We further note the trial court’s decisions regarding spoliation were even

harsher in Rosen than here, as it “barred any argument, questions, testimony, or

evidence suggesting that (a) video footage existed or does exist;

substantiating plaintiff’s claim of negligence; and that was or is being

withheld or has been destroyed by defendants or by defendants’ attorneys.”

Slip. Op. at 14 (internal quotation marks omitted). In contrast, Ludwig was

allowed to argue and introduce evidence at trial that Flaherty failed to produce

surveillance footage from the day of the incident and made that failure a major

theme of her opening statement, examination of witnesses, and closing

argument. Since the Supreme Court found no error in the court’s decision to

bar evidence of spoliation in Rosen, it’s difficult to find reversible error here

since Ludwig was permitted to present such evidence.

[38] And we reiterate that given the jury’s apparent rejection of Ludwig’s invitation

to hold the missing footage against Flaherty, it was unlikely that an instruction

on spoliation would have affected their verdict, particularly the permissive

adverse inference instruction Ludwig requested. As such, Ludwig has failed to

show that her substantial rights were adversely affected by the trial court’s

decision not to give the spoliation instruction. Consequently, to the extent that

decision was erroneous, it was harmless.

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 26 of 32
2. The Verdict Form
[39] Ludwig next argues that a new trial should have been granted because “[t]he

verdict form clearly revealed a meaningful risk the jurors had a fundamental

misunderstanding of what they communicated as their verdict.” Appellant’s

Br. at 20. She contends the verdict form had “multiple verdicts crossed out,

various comparative fault percentages assigned . . . then subsequently crossed

out, the foreperson’s signature crossed out, the date of the verdict crossed out, a

new purported final assessment of percentages, and a new signature and date

entered.” Id. at 19-20. And according to Ludwig, this was “the textbook

definition of [an] extraordinary” verdict. Id. at 19.

[40] As an initial matter, Ludwig has failed to cite any legal authority standing for

the proposition that a new trial should be granted if a jury’s verdict is

“extraordinary,” nor has she explained with any specificity what it means for a

verdict to be “extraordinary” in this context. In fact, her argument on this issue

does not cite any legal authority at all. This runs afoul of Indiana Appellate

Rule 46(A)(8)(a), which requires the parties to support their arguments with

“citations to the authorities [and] statutes . . . relied on . . . .” By failing to do

so, Ludwig has waived this issue for our review. See Miller v. Patel, 212 N.E.3d

639, 657 (Ind. 2023) (“[A] litigant who fails to support his arguments with

appropriate citations to legal authority and record evidence waives those

arguments for . . . review.” (quoting Pierce v. State, 29 N.E.3d 1258, 1267 (Ind.

2015)).

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 27 of 32
[41] Waiver notwithstanding, we agree with Ludwig insofar as she argues it would

have been best practice for the trial judge to permit counsel to examine the

verdict form before releasing the jury. When trial courts do so, it gives the

parties an opportunity to address any “substantial irregularities that reasonably

indicate a risk the jury did not record the verdict properly.” Appellant’s Br. at

23-24. But we have found no authority standing for the proposition that trial

courts are required to follow that practice. And in any event, Ludwig is

incorrect that under the specific circumstances of this case a new trial is

required to “assure the verdict [was] free from mistake . . . .” Appellant’s Br. at

24.

[42] If there is any doubt as to the jury’s intention in returning a verdict, one remedy

is to poll it “to assure that each of the jurors accepts the verdict as his own and

to provide for further jury deliberation where polling reveals a juror dissents

from the verdict.” State v. Normandy Farms, 413 N.E.2d 268, 271 (Ind. Ct. App.

1980). For example, in Foddrill v. Crane, a panel of this Court rejected the

defendant’s argument “that the jury’s award was based on a miscalculation[,]”

reasoning:

[A] jury’s general verdict in a negligence case may not be
impeached by a damages calculation form, at least so long as it is
clear that the general verdict is indicative of each juror’s intent. .
. . Here, . . . the jury was polled and all members affirmed that
[the award] was his or her verdict.

894 N.E.2d 1070, 1080, 1081 (Ind. Ct. App. 2008), trans. denied.

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 28 of 32
[43] Likewise, here, the trial court polled the jurors to ensure each of them intended

to assign ninety percent of the fault for Ludwig’s injuries to her and return a

verdict in Flaherty’s favor:

THE COURT: . . . The verdict forms have been tendered to the
court. One is filled out. And it reads as follows. . . . [W]e, the
jury, assigned the following percentages of fault. . . . Ludwig
90%, Flaherty . . . 10%. Because Ludwig’s fault is greater than
50%, we therefore decide in favor of the Defendant Flaherty . . .
and against . . . Ludwig, signed by the presiding juror and dated
today’s date. Juror number 1, is that your verdict?

JUROR #1: Yes.

THE COURT: Juror #2?

JUROR #2: Yes.

THE COURT: Juror #3?

JUROR #3: Yes.

THE COURT: 4?

JUROR #4: Yes.

THE COURT: 5?

JUROR #5: Yes.

THE COURT: And 6?

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 29 of 32
JUROR #6: Yes.

Tr. Vol. 3 at 107-08. From this, there is no doubt the verdict form completed by

the jury accurately reflects its intention to find in Flaherty’s favor and award no

damages to Ludwig.

[44] Nor is Ludwig correct that the trial court was required to specifically ask the

jurors, “Is your verdict that . . . Ludwig receives no compensation from . . .

Flaherty[?]” to alleviate the supposed risk the jurors did not understand a

verdict in Flaherty’s favor would result in Ludwig receiving no compensation

for her injuries. Appellant’s Br. at 23. The court’s final instructions explicitly

explained:

To decide if . . . Ludwig is entitled to recover damages from
Flaherty . . . apportion the fault of . . . Ludwig and Flaherty . . .
on a percentage basis. Do this as follows:

First, if you determine that Flaherty . . . was not at fault, return
your verdict for Flaherty . . . and against . . . Ludwig and
deliberate no further.

If Flaherty . . . is at fault[:] decide Flaherty[’s] . . . percentage of
fault, and the percentage of fault, if any, of . . . Ludwig that
caused . . . Ludwig’s injuries. . . .

Next, if . . . Ludwig’s fault is greater than 50 percent, return your
verdict for Flaherty . . . and against . . . Ludwig in this case and
deliberate no further.

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 30 of 32
However, if you decide that . . . Ludwig’s fault is 50 percent or
less, then:

(1) Decide the total amount of . . . Ludwig’s damages, if any.
Do not consider fault when you decide this amount.

(2) Multiply . . . Ludwig’s total damages by Flaherty[’s] . . .
percentage of fault.

(3) Return your verdict for . . . Ludwig and against Flaherty . .
. in the amount of the product of that multiplication.

Appellant’s App. Vol. 2 at 70.

[45] By these instructions, the jury was informed that it should only award damages

to Ludwig if her fault was less than or equal to fifty percent. Because the jury

found Ludwig ninety percent at fault, it stopped deliberating and awarded no

damages in accordance with the trial court’s instructions. See Prange v. Martin,

629 N.E.2d 915, 922 (Ind. Ct. App. 1994) (“A jury is presumed to have

followed the court’s instructions.”), reh’g denied, trans. denied. Even if Ludwig

had been given the opportunity to raise issues with the verdict form before

jurors were released, once each juror confirmed the form’s accuracy, there was

no need for the court to subject the verdict to additional scrutiny. Since each

juror did so, a new trial was not warranted merely because the jury crossed out

items on the verdict form.

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 31 of 32
Conclusion
[46] For these reasons, the trial court did not abuse its discretion in denying

Ludwig’s motion for a new trial, and we affirm.

[47] Affirmed.

Bradford, J., and Weissmann, J., concur.

ATTORNEYS FOR APPELLANT
Jamison J. Allen
Nicole K. Szablak
Marc Lopez Law Firm
Indianapolis, Indiana

ATTORNEY FOR APPELLEE
Karl G. Popowics
Goodin Abernathy, LLP
Indianapolis, Indiana

ATTORNEY FOR AMICUS CURIAE THE INDIANA TRIAL LAWYERS ASSOCIATION
Katherine A. Piscione
Waldron Tate Land LLC
Indianapolis, Indiana

Court of Appeals of Indiana | Opinion 25A-CT-941 | March 16, 2026 Page 32 of 32