Justices consider failure-to-mitigate defense in car crash damages dispute

A dispute over damages stemming from a high school car accident largely comes down to one question: Did the injured teen make her concussion worse by not following post-concussion “protocols”?

The Indiana Supreme Court is considering that question after hearing oral arguments Tuesday in Sydney Renner v. Trevor J. Shepard-Bazant, 21S-CT-138.

The dispute centers on a 2016 car accident in which Trevor Shepard-Bazant struck Sydney Renner’s vehicle. Both parties were high school students at the time.

Renner suffered a concussion in the accident — her third overall. She began to complain of headaches, and her family doctor diagnosed her with “postconcussional syndrome.”

Renner was advised to see a physical therapist and to rest, but she went to her senior prom three days later, where the lights and music caused another headache. The next day she went to an amusement park and rode multiple rollercoasters, again causing a headache. Renner also developed amnesia that day and could not remember her trip home from the park.

The headaches continued along with concentration and balance issues. Renner suffered two additional head injuries that summer — one after hitting her head on a doorknob and one while roughhousing with her brother. She continued to see doctors and received a prescription for glasses with specialized lenses, but she did not fill it.

After Renner sued Shepard-Bazant, the trial court awarded her $132,000 in damages — $30 a day multiplied by 21,900 days in her life expectancy, adjusted and reduced for her pre- and post-collision injuries and her failure to follow post-concussion protocols. It later denied Renner’s motion to correct errors seeking nearly $700,000 in damages.

The Indiana Court of Appeals reversed and ordered a retrial on damages, but Martin Gardner, counsel for Shepard-Bazant, urged the Supreme Court to affirm the trial court’s ruling.

Gardner argued that under Humphrey v. Tuck, 151 N.E.3d 1203 (Ind. 2020),  Shepard-Bazant didn’t need to offer expert testimony that Renner exacerbated her injuries by not following the protocols, as any lay person would recognize that activities such as wrestling or riding a rollercoaster could make a head injury worse. What’s more, he said in response to a question from Justice Mark Massa, a doctor testified at trial that Renner’s post-concussion actions “may” have exacerbated her injuries.

But David Westland, counsel for Renner, told the justices that mild traumatic brain injuries such as concussions are subjective and beyond the experience of a lay person. Shepard-Bazant could have called an expert to testify on the link between Renner’s injuries and her failure to follow the protocols, but he did not, Westland argued.

According to Westland, the trial court in this case violated the “eggshell skull rule” by not taking the plaintiff as she was found. The court improperly treated Renner’s prior concussions as separate incidents and reduced her damages based on those incidents, he said.

Additionally, a doctor testified that Renner’s injuries from the collision were permanent, Westland said, meaning her failure to follow the so-called protocols did not cause identifiable harm or prolong her suffering. That permanency distinguished Renner’s case from Humphrey, he said in response to a question from Chief Justice Loretta Rush.

Gardner, however, argued the trial judge did consider the eggshell rule and, in his denial of the motion to correct errors, determined he had not violated the rule. The nuance of this case, the lawyer said, is that head injuries such as concussions are cumulative, so “each adds to the next.” Here, the trial court determined that because Renner had previous head injuries, she was more susceptible to prolonged suffering from a third, Gardner claimed.

What’s more, the burden was on Renner, not Shepard-Bazant, to prove that her injuries were attributable to Shepard-Bazant’s negligence, Gardner continued. But Westland flipped that argument around — a defendant raising a failure-to-mitigate defense can’t just say the plaintiff “may” have cause her injuries.

Westland asked the Supreme Court to remand with instructions to recalculate damages, while Gardner asked the justices to affirm the trial court.

The full oral arguments can be watched online.