Sydney Renner v. Trevor J. Shepard-Bazant

                                                                        Oct 16 2020, 8:30 am

                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court

      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      David W. Westland                                          Martin J. Gardner
      Nicole A. Bennett                                          Christopher J. Uyhelji
      Westland & Bennett, P.C.                                   Andria M. Oaks
      Hammond, Indiana                                           Gardner & Rans, P.C.
                                                                 South Bend, Indiana

                                                  IN THE

      Sydney Renner,                                             October 16, 2020
      Appellant-Plaintiff,                                       Court of Appeals Case No.
              v.                                                 Appeal from the Lake Superior
      Trevor J. Shepard-Bazant,                                  The Honorable John M. Sedia,
      Appellee-Defendant.                                        Judge
                                                                 Trial Court Cause No.

      Friedlander, Senior Judge.

[1]   Sydney Renner and Trevor Shepard-Bazant were in a three-vehicle accident,

      and Renner sustained injuries. She sued Shepard-Bazant for negligence, and he

      defaulted as to liability. The trial court held a bench trial on damages and

      awarded Renner $132,000. Renner appeals the court’s denial of her motion to

      Court of Appeals of Indiana | Opinion 19A-CT-2745 | October 16, 2020                       Page 1 of 21
      correct error, in which she asked the court to increase the damages award. We

      reverse and remand for a new trial on damages.

[2]   In 2013, Renner fell from a swing set and struck her head. Dr. Timothy

      Mullally diagnosed her with a concussion, and she fully recovered after several

      weeks. In 2014, Renner, then a high school student, fell eight to ten feet to the

      ground during a cheerleading routine, hitting her head on the floor. Dr.

      Mullally again diagnosed her with a concussion. Renner fully recovered from

      that concussion as well. As the record shows, having a concussion makes a

      person more likely to sustain concussions in future mishaps, and those

      concussions may have more severe symptoms than they would have had

      without the prior concussions, along with a longer recovery time.

[3]   In spring 2016, eighteen-year-old Renner was a senior in high school. Her

      transcript demonstrates that she was on average a B student, receiving some As

      and some Cs. Some of Renner’s classes qualified for college credit, and she had

      accumulated a year’s worth of college credit as she neared graduation. She was

      working part-time in a nursing home. Renner planned to get a nursing degree

      and become a neonatal nurse.

[4]   On April 20, 2016, Renner was stopped in traffic in Winfield, Indiana, when

      Shepard-Bazant (coincidentally Renner’s classmate) collided with the back of

      Renner’s car, pushing her car into the vehicle in front of her. Shepard-Bazant

      was going twenty-four miles per hour at the time of the collision. Renner was

      Court of Appeals of Indiana | Opinion 19A-CT-2745 | October 16, 2020     Page 2 of 21
      shaken by the two collisions. She was wearing her seat belt, and she did not

      strike her head, lose consciousness, or lose her memory of the incident.

[5]   An officer was dispatched to the scene. Renner was upset but told the officer

      she was fine. She drove her car home, but she soon noticed she had a severe


[6]   Dr. Mullally had previously instructed Renner’s parents to take her to the

      hospital if she suffered another head injury with a headache, so Renner and her

      mother went to the emergency room. Renner told the doctor she had a

      headache, but no neck or back pain. The treating doctor prescribed medication

      and directed Renner to follow up with her personal physician.

[7]   The next day, Renner went to Dr. Mullally’s office. She continued to have a

      moderate headache (five on a scale of one to ten) and further complained that

      she woke up with cervical spine pain. Dr. Mullally diagnosed Renner with a

      concussion, her third overall, and “Postconcussional syndrome.” Tr. Ex. Vol.

      1, p. 110. He directed her to be evaluated by a physical therapist. Dr. Mullally

      also advised her to rest.

[8]   Renner’s injuries occurred at a particularly unwelcome time because her senior

      prom was scheduled for that weekend. On April 23, 2016, Renner went to the

      prom, over the objections of her parents. The bright lights and loud music

      caused Renner to develop a headache. The next day, Renner and her friends

      took a long-planned trip to an amusement park, again over her parents’

      objections. She rode multiple roller coasters, which again resulted in a severe

      Court of Appeals of Indiana | Opinion 19A-CT-2745 | October 16, 2020       Page 3 of 21
       headache. In addition, after Renner rode “one of the bigger” roller coasters at

       the park, Tr. Vol. 5, p. 119, she subsequently was unable to remember anything

       that happened for the rest of the day, including the trip home from the park.

       Renner did not go to the emergency room or to Dr. Mullally’s office after

       returning home from the trip.

[9]    Per Dr. Mullally’s directions, Renner attended physical rehabilitation through

       Ivy Rehab. During that time, she continued to attend school with

       accommodations ordered by the doctor, but she did not work for three weeks

       after the accident. At her first physical therapy session, on April 25, 2016, she

       reported a headache with pain of seven out of ten, with ten being the most

       severe. Ivy Rehab’s staff also identified impairments in Renner’s balance and


[10]   During subsequent sessions, Renner continued to report headaches and

       difficulty concentrating, among other symptoms. During an appointment on

       April 28, 2016, the physical therapist noted that Renner had stuttering issues

       that were improving as the treatments progressed. During a May 9, 2016

       session, the physical therapist again noted that Renner had demonstrated

       “significant speech difficulties” during her initial evaluation on April 25, 2016.

       Tr. Ex. Vol. 1, p 198.

[11]   Renner’s headaches continued, and her family decided to get a different

       medical opinion. On May 10, 2016, Renner saw Dr. Michael A. Owens. She

       reported consistent headaches, as well as problems with dizziness, balance,

       Court of Appeals of Indiana | Opinion 19A-CT-2745 | October 16, 2020      Page 4 of 21
       concentration, memory, and neck pain and stiffness. He diagnosed her with a

       concussion and directed her to attend vestibular rehabilitation for balance and

       dizziness issues. Dr. Owens also issued academic accommodations for Renner

       and excused her from physical education. In addition, he cautioned her to limit

       her physical activities as she recovered from her concussion, to avoid reinjury to

       her head.

[12]   At Dr. Owens’ direction, Renner went to Community Hospital’s Dizziness,

       Balance, and Neuro Rehabilitation Clinic for vestibular therapy. She reported

       to physical therapist Patricia Tunberg that she had “constant headaches which

       range in intensity from a 2/10 to a 7-8/10.” Tr. Ex. Vol. 2, p. 28. Renner also

       reported problems with dizziness, balance, concentration, and memory. In

       addition, she stated that her headaches increased in severity after she returned

       to work.

[13]   Renner continued to attend therapy with Tunberg before and after graduating

       from high school. Renner also had two additional head injuries during the

       summer of 2016. On May 30, 2016, she lost her balance and hit her head on a

       doorknob. Later that summer, Renner’s brother hit her in the back of her head

       when they were roughhousing. Renner did not go directly to a doctor after

       either incident, although she mentioned the first incident to Tunberg during

       physical therapy.

[14]   Despite these incidents, Renner’s symptoms had improved in most respects by

       the end of summer, except for her headaches. She reported consistent

       Court of Appeals of Indiana | Opinion 19A-CT-2745 | October 16, 2020     Page 5 of 21
       headaches of varying intensity throughout her physical therapy sessions with

       Tunberg. During Renner’s last session with Tunberg, on August 18, 2016, she

       reported that she did not have a headache that day, but she generally had three

       to four headaches per week. Despite the headaches, Renner stated she felt

       “100% back to normal.”

Id. at 74.

During a review of symptoms with Tunberg,

       Renner further stated her problems with memory, concentration, balance, and

       dizziness were resolved. She planned to live in her parents’ home and work on

       the weekends while attending college. Renner had obtained a different part-

       time job at an antiques store.

[15]   In August 2016, Renner began classes at Indiana University Northwest, taking

       a full load of five courses. She quickly discovered that “self-motivation” to

       attend classes and study would be more important than it was in high school.

       Tr. Vol. 5, p. 100. She also realized that she would have to study more than she

       did in high school.

[16]   Nevertheless, as the semester progressed, Renner’s headaches continued, and

       she discovered that no matter how hard she studied, she was not passing tests.

       She redoubled her efforts after getting poor test grades, with no improvement.

       Toward the end of the semester, she told her mother that she still had

       headaches and difficulty concentrating. One evening, Renner’s mother helped

       her study for an exam using flash cards. The next morning, Renner and her

       mother discussed the previous night’s study session, and Renner did not

       remember what they had covered. Her mother stated, “it was like we never

       even studied. She couldn’t remember a thing . . . .” Tr. Vol. 4, p. 101.

       Court of Appeals of Indiana | Opinion 19A-CT-2745 | October 16, 2020       Page 6 of 21
       Ultimately, Renner failed three of her five classes that semester, and she got a C

       and a D+ in the other two.

[17]   When Renner began her next semester in January 2017, she took a lighter

       course load, but she continued to work part-time at the antiques store. She also

       took a second part-time job at a law office. On January 31, 2017, Renner and

       her father returned to Dr. Owens’ office, stating she was having “constant

       headaches.” Tr. Ex. Vol. 2, p. 104. Renner’s father stated she also had

       memory issues. As an example, he told Dr. Owens that Renner had forgotten

       why they were going to the doctor. Dr. Owens diagnosed her with a post-

       concussion headache and discussed different medicines with her.

[18]   During the spring of 2017, Renner volunteered to assist a cheerleading coach,

       who asked her to teach sideline cheers to the pupils. Renner had been a

       cheerleader from second grade until she had her second concussion in high

       school, and yet, when she and her mother discussed cheers that Renner had

       “done her whole life,” Renner “could not remember them.” Tr. Vol. 4, p. 106.

       At around the same time, Renner received a tax refund check. Her father

       showed it to her, and they discussed why she received it, but a few days later,

       Renner did not remember why she received the check or her discussion with her


[19]   At the end of the spring semester, Renner failed one of her courses and received

       a C+ in the other one. Renner’s academic performance did not significantly

       improve in the fall of 2017, or in 2018 or 2019. She obtained As in two classes,

       Court of Appeals of Indiana | Opinion 19A-CT-2745 | October 16, 2020     Page 7 of 21
       but those classes had no in-class tests. Instead, Renner took online weekly

       quizzes that she could retake if she did poorly, and she could refer to notes

       while she took them, unlike in other classes.

[20]   Renner saw several other doctors in 2017 and 2018, including neurologists and

       neuropsychologists, who recommended various medicines and therapies. Two

       doctors recommended that she participate in cognitive or behavioral therapy,

       but she did not follow through. Renner also saw Dr. Neil W. Margolis, an

       optometrist with experience in treating post-concussion vision issues. Dr.

       Margolis believed Renner’s headaches could be ameliorated by wearing glasses

       whose lenses contained prisms. He gave her a prescription for the specialized

       lenses, but she never filled it.

[21]   Renner went to physical therapy again from September 2017 through March

       2018. She reported that physical therapy alleviated some of her symptoms,

       including neck pain, but she still had frequent headaches and memory issues.

[22]   Considering her ongoing symptoms and poor academic performance, Renner

       abandoned her original plan of becoming a neonatal nurse. As a fallback, she

       considered becoming a radiography technician, but she subsequently

       abandoned that goal as well. Renner eventually obtained training as a

       phlebotomist. She continues to live in her parents’ home.

[23]   On June 2, 2016, Renner sued Shepard-Bazant, claiming negligence. On

       August 19, 2016, she filed a request for a default judgment, noting that Shepard-

       Court of Appeals of Indiana | Opinion 19A-CT-2745 | October 16, 2020     Page 8 of 21
       Bazant had failed to timely respond to her complaint. On August 25, 2016, the

       trial court issued an order of default against Shepard-Bazant as to liability.

[24]   In July 2019, the trial court held a seven-day bench trial on damages. After the

       trial, the parties submitted briefs to the court instead of in-person closing

       arguments. Renner has not included her post-trial brief in the record on appeal,

       but it appears that she requested over $600,000, including medical expenses. In

       Shepard-Bazant’s post-trial brief, he claimed that Renner’s damages resulting

       from the accident were no more than $20,000.

[25]   On July 24, 2019, the trial court issued a final judgment in favor of Renner,

       awarding her $132,000 in damages. The court determined, “[Renner] has

       proven by the greater weight of the evidence that [Shepard-Bazant’s] negligence

       was a responsible cause of part of her damages.” Appellant’s App. Vol. II, p.

       25. The court calculated the damages as follows:

               Considering the totality of Sydney’s damages, including the long-
               term effect of her injuries and her life expectancy, the Court will
               assign a daily value of $30.00 to each of the 21,900 days of her
               life expectancy and adjust the product of that multiplication to
               determine the portion of damages for which Trevor is liable,
               taking into consideration all five concussions she suffered from
               2013 to 2016, along with her medical expenses and her failure to
               follow post-concussion protocols recommended by her treating

Id. at 26-27. [26]

  On the other hand, the court rejected Renner’s requested damages, stating:

       Court of Appeals of Indiana | Opinion 19A-CT-2745 | October 16, 2020       Page 9 of 21
               [Renner] has not proven by the greater weight of the evidence
               that [Shepard-Bazant’s] negligence was the sole, responsible
               cause of all her damages. All the concussions she suffered from
               2013 through 2016, along with her failure to follow post-
               concussion protocols recommended by her treating professionals,
               have contributed to the damages she has proven by the greater
               weight of the evidence . . . .”

Id. As for Renner’s

college struggles, the court determined:

               Sydney has not proven by the greater weight of the evidence that
               her failure to attain her lifelong dream of becoming a neo-natal
               nurse was derailed by any cognitive impairment caused by her
               concussions. It is likely her poor grades at Indiana University
               Northwest were not a direct result of her concussions, but from
               poor school/work balance, her failure at times to follow post-
               concussion protocols, and by her very nature, common to many
               college freshmen. Sydney was a high school student who easily
               attained decent grades without having to study very much,
               permitting her to enjoy the social aspects of her teenage years,
               including, by her testimony, cheerleading, hanging out with
               family and friends, looking at the stars at night, tanning and
               watching Netflix. When she started college, however, she was
               thrown into a world of classes which were difficult to master,
               particularly in preparation for a career in neo-natal nursing, of
               which she had no practical concept, given the fact that she did
               nothing outside of her high school curriculum, such as
               shadowing a neo-natal nurse or an ob/gyn, to prepare her for
               what was to come.

Id. at 26. [27]

  Renner filed a motion to correct error, asking the trial court to increase the

       award of damages to $692,433.79. Shepard-Bazant filed a response, and the

       Court of Appeals of Indiana | Opinion 19A-CT-2745 | October 16, 2020     Page 10 of 21
       court held a hearing on the motion. The court denied Renner’s motion. In its

       order, the court stated, “It is undisputed that Shepard-Bazant is not excused

       from liability just because Renner had suffered previous concussions.”

Id. at 28.

       The court further stated:

                 The extent of Shepard-Bazant’s liability for Renner’s injuries is
                 determined by causation. Renner’s injuries arose from the
                 cumulative effects of at least five documented instances of mild
                 traumatic brain injury. All of these traumas contributed to her
                 present condition, including the collision caused by Shepard-

Id. at 29.

This appeal followed.

[28]   Renner raises three issues, which we consolidate and restate as: whether the

       trial court abused its discretion in denying her motion to correct error. We

       review a court’s denial of a motion to correct error for an abuse of discretion.

       Allstate Ins. Co. v. Hammond, 

759 N.E.2d 1162

(Ind. 2001). We reverse only

       when “the trial court’s decision was against the logic and effect of the facts and

       circumstances before it, together with the inferences that can be drawn

       therefrom.” Hockema v. J.S., 

832 N.E.2d 537

, 541 (Ind. Ct. App. 2005), trans.


[29]   In her motion to correct error, Renner challenged the trial court’s damages

       calculation. Damages are awarded to fairly and adequately compensate an

       injured party for her loss, and the proper measure of damages must be flexible

       enough to fit the circumstances. Bader v. Johnson, 

732 N.E.2d 1212

(Ind. 2000).

       “In a negligence action, the injured party is entitled to damages proximately
       Court of Appeals of Indiana | Opinion 19A-CT-2745 | October 16, 2020          Page 11 of 21
       caused by the tortfeasor’s breach of duty.” Bank One, N.A. v. Surber, 

899 N.E.2d 693

, 704 (Ind. Ct. App. 2009), trans. denied.

[30]   When we review a claim that an award of damages is inadequate, we neither

       reweigh the evidence nor judge the credibility of the witnesses. Manzo v. Estep,


689 N.E.2d 474

(Ind. Ct. App. 1997). We consider only the evidence favorable

       to the award, and we must not substitute our idea of a proper award for that of

       the finder of fact.

Id. We will not

reverse so long as the damages award is

       within the scope of the evidence.

Id. At the same

time, we may consider

       undisputed evidence favorable to the party that did not prevail. See

id. (considering plaintiff’s undisputed

medical expenses in determining whether

       damages were inadequate); Burris v. Riester, 

506 N.E.2d 484

(Ind. Ct. App.

       1987) (same), trans. denied.

[31]   Renner argues the trial court’s damages award was an abuse of discretion

       because the court failed to consider that her prior two concussions made her

       more susceptible to her third concussion arising from the collision with

       Shepard-Bazant, and further made it more likely that the effects of that third

       concussion would be more severe, possibly permanent.

[32]   Indiana has a “long-standing rule” that a defendant “takes his victim as he finds

       him.” Bailey v. State, 

979 N.E.2d 133

, 142 (Ind. 2012). Thus, “[a] tortfeasor . . .

       is not relieved from liability merely because of [a victim’s] increased

       susceptibility to injury.” Armstrong v. Gordon, 

871 N.E.2d 287

, 293 (Ind. Ct.

       App. 2007), trans. denied. This rule is sometimes described as the “eggshell

       Court of Appeals of Indiana | Opinion 19A-CT-2745 | October 16, 2020       Page 12 of 21
       skull” rule, referencing a venerable hypothetical in which a tortfeasor throws “a

       piece of chalk” at a person with an unexpectedly fragile skull, resulting in a

       skull fracture that the tortfeasor could not have expected but nonetheless

       caused. Defries v. State, 

264 Ind. 233

, 244-45, 

342 N.E.2d 622

, 630 (1976). Even

       so, “a defendant is liable only ‘for the extent to which his conduct has resulted

       in an aggravation of the pre-existing condition, and not for the condition as it

       was.’” Dunn v. Cadiente, 

516 N.E.2d 52

, 56 (Ind. 1987) (quoting Prosser, Law

       of Torts 4th Ed., p. 262).

[33]   It is undisputed that Renner experienced a concussion as a result of her collision

       with Shepard-Bazant. Doctors Mullally and Owens, along with subsequent

       doctors who treated Renner and/or reviewed her records, diagnosed her as

       having a concussion. Further, several experts testified that it is possible for a

       person to become concussed during a relatively low-impact auto accident, like

       the one at issue here, in which Renner did not hit her head, lose consciousness,

       or lose her memory of the incident, and was able to drive her car home.

[34]   It is also undisputed that Renner had two concussions prior to her auto accident

       with Shepard-Bazant. She fully recovered from those concussions, but Dr.

       Joseph Fink, a neuropsychologist who examined Renner in 2017, explained the

       effects of multiple concussions:

               But what the research does show that is if you continue to suffer
               concussions, if you have repeated concussions over time, then
               there can be some cumulative effects where, let’s say, by the third
               concussion, the recovered – the recovery does seem to be slower,
               and it seems to be less complete. In other words, there seem to

       Court of Appeals of Indiana | Opinion 19A-CT-2745 | October 16, 2020      Page 13 of 21
               be greater odds that the person is going to have some more
               persisting problems.

       Tr. Vol. 2, p. 75. Further, Dr. Elizabeth M. Pieroth, a neuropsychologist who

       interviewed Renner on May 9, 2017, agreed that past concussions are

       associated with an increased rate of concussions. Indeed, Shepard-Bazant

       concedes, “Concussions are cumulative, and the cumulative nature of a

       concussion makes it easier for a previously concussed individual to receive

       another concussion, experience more severe symptoms, or require prolonged

       recovery: these factors put the individual in a fragile state during the healing

       process.” Appellee’s Br. p. 8.

[35]   The record reflects that in the days and weeks after Shepard-Bazant struck

       Renner’s car, pushing her into another vehicle, Renner experienced more

       substantial symptoms than one might expect from a low-speed accident. She

       reported to Dr. Mullally, Dr. Owens, and her therapists that she had constant

       headaches and spine pain, and the therapists identified deficits in balance,

       cognition, and speaking.

[36]   The trial court’s order denying Renner’s motion to correct error does not

       address or acknowledge the rule that a tortfeasor takes a victim as they find

       them. Instead, the court merely stated that Shepard-Bazant is not “excused

       from liability” because of the prior concussions. Appellant’s App. Vol. II, p.

       28. In support, the court cited Humphery v. Duke Energy, Inc., 

916 N.E.2d 287

       (Ind. Ct. App. 2009). That case is distinguishable because it addresses

       causation generally, but not the “eggshell skull rule.”
       Court of Appeals of Indiana | Opinion 19A-CT-2745 | October 16, 2020      Page 14 of 21
[37]   Given the applicable law, and the undisputed evidence regarding the effects of

       Renner’s prior concussions upon the severity and long-term effects of the

       concussion she sustained due to Shepard-Bazant’s negligence, we conclude the

       court’s treatment of Renner’s prior two concussions as separate incidents, rather

       than as contributing to Renner’s injuries and damages arising from the auto

       accident, was against the logic and effects of the facts and circumstances before

       the court and resulted in error in the calculation of damages.

[38]   Our analysis does not end there. Shepard-Bazant argues that the trial court did

       not abuse its discretion in denying the motion to correct error, and did not err in

       calculating damages, because the evidence favorable to the judgment

       demonstrates that the two head injuries Renner sustained in the summer of

       2016, after the collision with Shepard-Bazant, was the cause of her injuries. We

       disagree. Turning to the May 30, 2016 incident where Renner lost her balance

       and hit her head on a doorknob, there is no evidence in the record that she

       suffered harm specifically derived from that fall rather than a continuation of

       the effects of the auto accident. Several days after the fall, Renner reported to

       her physical therapist that she was stuttering again, as she had done after the

       auto accident when she first began physical therapy, but Renner also reported

       that she had recently returned to work, and it had been stressful for her. None

       of the doctors testified that Renner’s headache and memory issues were caused

       by falling onto the doorknob, as opposed to the accident with Shepard-Bazant.

[39]   As for the incident in which Renner’s brother hit her in the back of the head,

       the record indicates that she experienced only an increase in her headaches and

       Court of Appeals of Indiana | Opinion 19A-CT-2745 | October 16, 2020     Page 15 of 21
       other symptoms afterwards, but those symptoms resolved. Again, none of the

       doctors testified that Renner’s injuries were caused by this incident, rather than

       the collision with Shepard-Bazant.

[40]   Shepard-Bazant further argues that a superseding cause of Renner’s ongoing

       headaches is a family history of migraine headaches, specifically Renner’s

       mother and sister. Although Renner’s relatives testified to having migraines

       occasionally, neither of them claimed to have such headaches on a near-daily

       basis, as Renner has done since the accident. Also, although several of

       Renner’s doctors diagnosed her with migraine headaches along with post-

       concussion syndrome, none of them stated that her ongoing, constant

       headaches are the result of genetically attributable migraines as opposed to the

       accident with Shepard-Bazant. There is no evidence to support Shepard-

       Bazant’s claim of superseding causation.

[41]   As a last point on the question of causation, Shepard-Bazant cites Spaulding v.


89 N.E.3d 413

(Ind. Ct. App. 2017), trans. denied, in support of his claim

       that Renner failed to carry her burden of proof on the question of causation of

       damages, but that case is distinguishable. In Spaulding, the parties were

       involved in a low-speed collision. Spaulding did not report any injuries at the

       scene, but he later developed pain in his left shoulder. Next, he was in another

       auto accident on his way to physical therapy. He again reported no injuries at

       the scene, but later he experienced more shoulder pain.

       Court of Appeals of Indiana | Opinion 19A-CT-2745 | October 16, 2020     Page 16 of 21
[42]   Spaulding later sued Cook for negligence. A jury heard evidence on the

       question of damages, and Spaulding presented testimony from two doctors

       stating that Cook’s negligence caused Spaulding’s shoulder injuries. The jury

       did not award any damages to Spaulding. He appealed, and a panel of this

       Court affirmed, concluding that the jury’s decision was within the range of the

       evidence presented, which included evidence that: (1) Spaulding had prior

       injuries to his shoulder; (2) Spaulding did not disclose the second auto accident

       to one of the doctors; (3) one of the doctors’ diagnosis had a low degree of

       certainty; and (4) the accident in question was low-impact.

[43]   Spaulding is distinguishable from Renner’s case because unlike Spaulding,

       Renner had prior concussions, but rather than being a possible separate cause of

       injury, those concussions established a preexisting condition of being prone to

       subsequent concussions of increased severity and duration. Further, there is no

       evidence that Renner lied to any of her doctors about her symptoms. Finally,

       several of the doctors who treated Renner were firm in their diagnosis that she

       had post-concussion syndrome resulting from the accident with Shepard-


[44]   Turning from causation to an affirmative defense, Shepard-Bazant claims that

       the trial court did not abuse its discretion, and did not err in calculating

       damages, because Renner failed to comply with her doctors’ restrictions and

       treatment recommendations. Shepard-Bazant further claims that Renner’s

       failure to mitigate her damages was the cause of her injuries and caused the trial

       Court of Appeals of Indiana | Opinion 19A-CT-2745 | October 16, 2020       Page 17 of 21
       court to appropriately set the damages award at an amount far less than Renner

       requested. Appellant’s Br. p. 15.

[45]   “[T]ort plaintiffs must mitigate post-injury damages; otherwise, the damages

       they can recover are reduced ‘by those damages which reasonable care would

       have prevented.’” Humphrey v. Tuck, 

151 N.E.3d 1203

, 1208 (Ind. 2020)

       (quoting Willis v. Westerfield, 

839 N.E.2d 1179

, 1187 (Ind. 2006)). Failure to

       mitigate damages is an affirmative defense, but not as to liability.

Id. Rather, failure to

mitigate may reduce the amount of damages a plaintiff is entitled to

       recover after liability has been found. Willis, 

839 N.E.2d 1179


[46]   As the Indiana Supreme Court has stated:

               The affirmative defense of failure to mitigate damages has two
               elements, and as to both the defendant bears the burden of proof
               by a preponderance of the evidence. First, the defendant must
               prove that the plaintiff failed to exercise reasonable care to
               mitigate his or her post-injury damages. Second, the defendant
               must prove that the plaintiff’s failure to exercise reasonable care
               caused the plaintiff to suffer an identifiable item of harm not
               attributable to the defendant’s negligent conduct. In this respect,
               the defendant bears the same burden with respect to this defense
               that the plaintiff bears with respect to the claim for damages. It is
               not enough to establish that the plaintiff acted unreasonably. The
               defendant must establish resulting identifiable quantifiable
               additional injury, just as the plaintiff must prove harm resulting
               from the defendant’s acts. When, as here, a defendant claims
               that after an accident a plaintiff unreasonably failed to follow
               medical advice, in order to establish a failure to mitigate, the
               defendant must also prove that the plaintiff’s actions caused the
               plaintiff to suffer a discrete, identifiable harm arising from that
               failure, and not arising from the defendant’s acts alone.

       Court of Appeals of Indiana | Opinion 19A-CT-2745 | October 16, 2020       Page 18 of 21

Id. at 1188. [47]

  Shepard-Bazant points to Renner’s trip to an amusement park to ride roller

       coasters, four days after the auto accident, as the strongest proof that she failed

       to mitigate her damages. Every doctor who testified about Renner’s trip to the

       amusement park (Doctors Mullally, Owens, Fink, and Larry Salberg) explained

       that they would have recommended against Renner riding roller coasters. Dr.

       Mullally further stated that Renner violated his restrictions by riding roller

       coasters a few days after seeing him. In addition, Renner’s parents argued

       against her trip to the amusement park, to no avail. This evidence establishes

       that Renner acted unreasonably in riding roller coasters.

[48]   We must next consider whether the evidence favorable to the judgment

       establishes that Renner’s riding roller coasters caused her to suffer a discrete,

       identifiable harm arising from that conduct, rather than Shepard-Bazant’s

       negligence. It appears that Renner suffered amnesia after the amusement park

       trip, whereas she did not have amnesia after the auto accident. Even so,

       Doctors Mullally, Owens, Fink, and Salberg stated that at worst, riding the

       roller coasters merely extended or exacerbated Renner’s symptoms, rather than

       being a discrete harm separate from the effects of the auto accident. Shepard-

       Bazant did not provide any evidence, expert or otherwise demonstrating that

       Renner suffered a separate injury, such as a concussion, from the amusement

       park trip. Given the absence of evidence proving Renner sustained a separate,

       new harm from riding roller coasters four days after the accident, her choice to

       ride the roller coasters is insufficient proof of failure to mitigate damages.

       Court of Appeals of Indiana | Opinion 19A-CT-2745 | October 16, 2020       Page 19 of 21
[49]   Next, Shepard-Bazant points to other acts by Renner as proof of failure to

       mitigate damages, including: (1) going to prom soon after the accident; (2)

       having poor sleeping habits, including too much screen time before going to

       sleep; (3) failing to seek out cognitive or behavioral therapy; (4) failing to

       participate in a sleep study; (5) failing to fill Dr. Margolis’ prescription for

       special lenses; (6) wrestling with her brother in the months after the accident;

       and (7) having a poor work-life balance while she was attending college. These

       points all have the same shortcoming as Renner’s trip to the amusement park:

       however inadvisable they may be, there is no evidence that the acts caused

       harm separate from Shepard-Bazant’s negligence. To the contrary, Renner

       testified, without contradiction in the record, that she studied diligently while

       attending college, but her memory issues and headaches made it impossible to

       do well in classes she needed for admittance to a nursing program.

[50]   Having determined that the trial court erred, we must turn to the question of

       remedy. Renner claims the trial court accepted her method of calculating her

       damages but inappropriately subtracted $131,400 for each of the two prior

       collisions and the two head injuries she sustained in the summer of 2016. As a

       result, Renner asks the Court to simply order the trial court to increase the

        We again note that Renner’s post-trial brief is not included in the record on appeal, and we do not know the
       precise calculations Renner presented to the trial court in support of her request for damages.

       Court of Appeals of Indiana | Opinion 19A-CT-2745 | October 16, 2020                           Page 20 of 21
[51]   In response, Shepard-Bazant argues, and we agree, the record demonstrates the

       trial court adopted its own method of calculating damages. The court took

       Renner’s projected life expectancy, calculated a value of $30.00 per day of her

       life, and adjusted the multiplication by a portion of her damages for which

       Shepard-Bazant is liable. On this record, we will not order the trial court to

       grant Renner a specific amount of damages. Instead, we must remand for a

       retrial. See Manzo, 

698 N.E.2d 474

(remanding for new trial on damages after

       determining award was inadequate for failing to consider undisputed evidence).

[52]   For the reasons stated above, we reverse the judgment of the trial court and

       remand for a retrial.

[53]   Judgment reversed and remanded.

       Riley, J., and Bailey, J., concur.

       Court of Appeals of Indiana | Opinion 19A-CT-2745 | October 16, 2020    Page 21 of 21
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