FILED
Oct 16 2020, 8:30 am
CLERK
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
COURT OF APPEALS OF INDIANA
Sydney Renner, October 16, 2020
Appellant-Plaintiff, Court of Appeals Case No.
19A-CT-2745
v. Appeal from the Lake Superior
Court
Trevor J. Shepard-Bazant, The Honorable John M. Sedia,
Appellee-Defendant. Judge
Trial Court Cause No.
45D01-1801-CT-14
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
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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
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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
headache.
[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
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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
cognition.
[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,
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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
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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.
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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
father.
[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,
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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-
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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
professionals.
Id. at 26-27.
[26] On the other hand, the court rejected Renner’s requested damages, stating:
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[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
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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-
Bazant.
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.
denied.
[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
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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
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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
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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.”
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[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
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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.
Cook, 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.
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[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-
Bazant.
[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
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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.
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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.
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[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
1
award.
1
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.
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[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.
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