FOR PUBLICATION
ATTORNEY FOR APPELLANT:                         ATTORNEY FOR APPELLEE:

TRACY A. COLEMAN                                KEVIN W. MARSHALL
Robert L. Lewis & Associates                    Hobart, Indiana
Gary, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA
                                                                       Apr 30 2014, 10:16 am
GARY COMMUNITY SCHOOL                           )
CORPORATION,                                    )
                                                )
      Appellant-Defendant,                      )
                                                )
             vs.                                )      No. 45A03-1306-PL-230
                                                )
PRINCE LARDYDELL b/n/f                          )
ERMA LARDYDELL,                                 )
                                                )
      Appellee-Plaintiff.                       )


                     APPEAL FROM THE LAKE SUPERIOR COURT
                        The Honorable Calvin D. Hawkins, Judge
                             Cause No. 45D02-0802-PL-56



                                      April 30, 2014


                               OPINION - FOR PUBLICATION

DARDEN, Senior Judge
                             STATEMENT OF THE CASE

      Gary Community Schools Corporation (“GCS”) appeals the trial court’s entry of

judgment in favor of Prince Lardydell by his mother and next friend, Erma Lardydell.

We affirm.

                                         ISSUES

      GCS raises three issues, which we restate as:

      I.     Whether the trial court abused its discretion in admitting evidence.

      II.    Whether the trial court abused its discretion in instructing the jury.

      III.   Whether the jury’s damage award of $120,000 is supported by the
             evidence.

                       FACTS AND PROCEDURAL HISTORY

      On May 4, 2006, Prince Lardydell, with aspirations of attending college, was a

fifteen-year-old freshman student at West Side High School, which GCS owned,

controlled, and operated. At that time, West Side High School had a uniformed police

officer, with the power to arrest, patrolling outside the school. Inside, it had uniformed

police officers, with the power to arrest, assigned to each of the school’s two floors. In

addition, the school had seven “supervisory aides,” who were authorized to keep order in

the school but did not have arrest powers. Tr. p. 346. The inside uniformed officers and

aides patrolled the school’s hallways.     All of the officers and aides had electronic

communications equipment. Also, the school had four administrators, one for each grade

level, who were available to assist with safety issues. Teachers were responsible for

monitoring the hallways outside their classrooms in between classes and had panic or


                                             2
alert buttons to summon safety personnel.        Finally, there were seventy-two motion-

sensitive video cameras placed throughout the school with a monitoring room.

       On the day in question, Prince was in attendance at West Side. He was running

late for one of his afternoon classes when several individuals approached him in a

hallway. They attacked Prince, knocking him to the floor. Next, they surrounded him

and kicked him repeatedly for five to ten minutes as he lay curled up into a fetal position.

A teacher in a nearby classroom heard the attack and pressed a panic button. Prince

screamed for help, but school safety personnel did not arrive until after the attack had

ended and his assailants had left. Prince went to class and finished the school day;

however, his mother, Erma, later took him to the emergency room when he complained

of headaches.

       GCS identified the attackers and expelled two of them from West Side High

School. As a result of the attack, Prince had become frightened, and Erma did not allow

Prince to attend West Side for the rest of the semester.

       Prince was referred to neurologist Dr. Julian Ungar-Sargon, who first saw him on

June 5, 2006. Prince complained of headaches, light-headedness, dizziness, problems

with concentration, and memory problems. After performing several tests, Dr. Ungar-

Sargon diagnosed Prince with a mild concussion.            He billed Prince $1186 for two

appointments and the tests. Id. at 231. Prince’s headaches gradually went away over the

next eighteen months.

       Prince suffered from “a lot of depression” after the attack and hardly left home

during the summer following the attack. Id. at 276. When Prince told Erma he was

                                             3
considering suicide, the Lardydells became extremely concerned and moved to

Indianapolis, leaving the only home Prince had ever known. Prince attended a new high

school in Indianapolis, where his grades suffered. After graduating, Prince could only

obtain part-time employment. He continued to suffer from mental anguish, continued to

be fearful of going outside his home, and had difficulty interacting with and trusting

people. Further, he was unable to attend college because of his poor high school grades,

which further depressed him.

        Prince, by Erma, sued GCS.1             The case was tried to a jury.           Among other

witnesses, Prince submitted testimony from Andrea Ledbetter, who had served on GCS’s

board at the time of the attack. At the close of Prince’s case, GCS moved for judgment

on the evidence, asserting he had failed to provide evidence of negligence or damages.

The court denied GCS’s motion. The jury found in favor of Prince, awarding damages of

$120,000.

        After the jury returned its verdict, GCS orally moved for remittitur, and the court

denied the motion. Next, GCS filed a Motion for a New Trial, Remittitur, and/or to Alter

or Amend Judgment. The court denied GCS’s motion after a hearing. This appeal

followed.




1
 Prince also sued several other parties, but they were dismissed from the case prior to trial and are not
participating in this appeal.
                                                   4
                             DISCUSSION AND DECISION

                             I. ADMISSION OF EVIDENCE

       The decision to admit or exclude evidence rests within the sound discretion of the

trial court and will be reversed only upon a manifest abuse of discretion. Estate of Carter

v. Szymczak, 951 N.E.2d 1, 5 (Ind. Ct. App. 2011), trans. denied. An abuse of discretion

occurs when the trial court’s decision is contrary to the logic and effect of the facts and

circumstances before it. Id. We will not reverse the trial court’s admission of evidence

absent a showing of prejudice. Id.

       GCS asserts the trial court should not have permitted Ledbetter, a former GCS

board member, to testify about a video she reviewed in a May 2006 executive session of

GCS’s board or to describe the topics discussed at an April 2005 GCS executive board

session. GCS asserts that the doctrine of qualified privilege applies to all discussions

held during its board’s executive sessions.

       GCS acknowledges that its board is subject to the requirements of Indiana’s Open

Door Law, which is codified at Indiana Code sections 5-14-1.5-1 through 5-14-1.5-8.

The Open Door Law requires that “official action of public agencies be conducted and

taken openly, unless otherwise expressly provided by statute, in order that the people may

be fully informed.” Ind. Code § 5-14-1.5-1 (1987). The provisions of the Open Door

Law “are to be liberally construed with the view of carrying out” this policy. Id.

       GCS, as a public agency, must also acknowledge that pursuant to Indiana law, the

primary purpose of Indiana’s Open Door policy relating to public agencies is to keep

Indiana citizens fully informed of an agency’s activities. Specifically, Indiana Code

                                              5
sections 5-14-3-1 through 5-14-3-4 provide an extensive list of exceptions that a public

agency may assert as privileged or confidential information, and generally, not available

to public disclosure. However, in order to bring itself under the guise of said statutes,

there are certain procedures the agency must follow before asserting the privilege. GCS

has failed to cite to any authority or point to any evidence in support of its argument that

Ledbetter’s proposed testimony, about matters that occurred when she served as member

of GCS’s board, fit within any of the statutory exceptions.

       The Open Door Law provides that public agencies, including school boards, may

meet in executive session for limited, specified purposes. These purposes include, in

relevant part, discussion of strategy with respect to litigation, implementation of security

measures, and discussion of alleged misconduct by students. Ind. Code § 5-14-1.5-6.1

(2005). However, the statute is silent as to whether discussions during executive sessions

are privileged or whether persons present during an executive session can be barred from

disclosing what occurred during an executive session.

       A qualified privilege applies to communications made in good faith or on any

subject matter in which the party making the communication has an interest or in

reference to which he or she had a duty, either public or private, either legal, moral, or

social, if made to a person having a corresponding interest or duty. Williams v. Tharp,

914 N.E.2d 756, 762 (Ind. 2009). The privilege has been applied to claims of negligence.

Brown v. Indianapolis Hous. Agency, 971 N.E.2d 181, 186 (Ind. Ct. App. 2012).

       The doctrine of qualified privilege may provide a defense against a valid tort

claim. It does not, however, bar all testimony or shield information from disclosure. To

                                             6
the contrary, the doctrine generally comes into play only after a defendant has transmitted

a communication which a plaintiff deems actionable. See, e.g., Kelly v. Tanoos, 865

N.E.2d 593, 597 (Ind. 2007) (defendant raised qualified privilege after plaintiff sued for

defamation). GCS does not cite to any authority which has applied the doctrine of

qualified privilege, or any other privilege, to bar board members of public agencies from

testifying about all discussions during executive sessions.

        Ledbetter’s testimony was important to Prince’s case because she described in

detail for the jury a video of the attack that she watched during an executive session. She

further testified that the video she saw was not among those that GCS had disclosed to

Prince during discovery.

        In any event, the trial court ruled that she could testify, but it would not allow

Ledbetter to testify about “communications” that occurred during executive sessions. Tr.

p. 186. Ledbetter complied with the court’s ruling in her testimony. She only described

what she saw in the video as noted above, and she testified that she attended an April

2005 executive board session wherein school security was one of the topics on the agenda

for discussion. She did not testify about any communications, litigation strategies, or any

other matters that occurred during the executive sessions she attended.                         We cannot

conclude that the court abused its discretion by allowing Ledbetter to testify in

compliance with the limitations it imposed.2




2
 GCS argues in its reply brief that the trial court also erred by admitting Plaintiff’s Exhibit 2, a transcript
of Prince’s grades, into evidence. Claims raised for the first time in a reply brief are waived. Monroe
Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005).
                                                      7
                                II. JURY INSTRUCTIONS

       When reviewing a trial court’s decision to give or refuse a tendered instruction, we

consider whether the instruction (1) correctly states the law, (2) is supported by evidence

in the trial record, and (3) is covered in substance by other instructions. Star Transp.,

Inc. v. Byard, 891 N.E.2d 1099, 1102 (Ind. Ct. App. 2008), trans. denied. The trial court

has discretion in instructing the jury and will be reversed on the last two points only when

the instructions amount to an abuse of discretion. Id. Whether an instruction correctly

states the law, however, is a question of law that we review de novo. Id.

                                  A. Final Instruction 12

       GCS challenges the trial court’s revised Final Instruction 12, claiming it misstates

the law. As given to the jury, that instruction provides:

       There are certain situations in which the nature of an incident and the
       circumstances surrounding it lead to the reasonable belief that it would not
       have occurred unless someone did not use reasonable care.

       If Prince Lardydell proves all of the following by the greater weight of the
       evidence:

          (1) Prince Lardydell was injured when he was attacked and beaten in a
              hallway at Westside High School within the Gary Community
              School Corporation;

          (2) Gary Community School Corporation controlled the conditions of
              the school hallways where the attack took place;

       then you may infer that the incident resulted from Gary School
       Corporation’s negligence. You may consider this inference with all of the
       other evidence in arriving at your verdict.

Appellant’s App. p. 38.



                                             8
       Final Instruction 12 was based on Prince’s proposed Tendered Instruction 1, which

provided:

       There are certain situations in which the nature of an incident and the
       circumstances surrounding it lead to the reasonable belief that it would not
       have occurred unless someone did not use reasonable care.

       If Prince Lardydell proves all of the following by the greater weight of the
       evidence:

             (1) Prince Lardydell was injured when he was attacked and beaten in a
                 hallway at Westside High School within the Gary Community
                 School Corporation;

             (2) Gary Community School Corporation controlled the conditions of
                 the school hallways where the attack took place;

             (3) under normal circumstances, Prince Lardydell would not have been
                 attacked and injured unless Gary Community School Corporation
                 was negligent;

       then you may infer that the incident resulted from Gary School
       Corporation’s negligence. You may consider this inference with all of the
       other evidence in arriving at your verdict.

Id. at 18. During the jury instruction conference, GCS objected to Prince’s Tendered

Instruction 1 as follows:

       And our objection would be that’s a misstatement of the law. [Prince is]
       adding an extra duty to the School Corporation that does not exist. The
       duty is reasonable care. Not only is it a misstatement of the law, it will
       confuse the jurors regarding the actual duty, which is on the School
       Corporation, and that’s reasonable care. It’s not foreseeability [sic] that
       because somebody was attacked we did something wrong.

Tr. p. 393. The court excised subsection 3 from the instruction in response to GCS’s

objection.




                                             9
       The parties are in agreement that Final Instruction 12 purported to instruct the jury

on the doctrine of res ipsa loquitur. Res ipsa loquitur is translated from Latin as “the

thing speaks for itself.” Gold v. Ishak, 720 N.E.2d 1175, 1180 (Ind. Ct. App. 1999),

trans. denied. It is a rule of evidence that permits an assumption that in some situations

an occurrence is so unusual that, absent a reasonable justification or explanation, the

person in control of the situation should be held responsible. Hale v. SS Liquors, Inc.,

956 N.E.2d 1189, 1194 (Ind. Ct. App. 2011). If the doctrine’s elements are met, it allows

a permissive inference of negligence. Id. A plaintiff must establish (1) the circumstances

under which the injury occurred were under the management or exclusive control of the

defendant, and (2) the occurrence is one which in the ordinary course of business does

not happen if those who control the circumstances use proper care. Gold, 720 N.E.2d at

1181 (quoting Vogler v. Dominguez, 624 N.E.2d 56, 61 (Ind. Ct. App. 1993), trans.

denied), trans. denied.

       GCS claims the trial court erred in giving Final Instruction 12 because it misstates

the law and allowed the jury to determine that GCS was negligent without first deciding

whether GCS breached the standard of ordinary and reasonable care. GCS cites LaPorte

Community School Corp. v. Rosales, 963 N.E.2d 520 (Ind. 2012), in support of its claim.

In that case, a parent sued a school corporation after her child died at school from

choking on food.      The parent prevailed at a jury trial, and the school appealed.

Specifically, the school argued that Final Instruction 22 was erroneous because it allowed

the jury to hold it liable without also finding that it acted negligently, meaning that it

breached the standard of ordinary and reasonable care. That instruction provided that

                                            10
Rosales had the burden of proving the school corporation “was negligent in any of the

following ways” and listed a number of omissions the school corporation may have

committed in relation to the student’s death. Id. at 523.

       Our Supreme Court noted that the challenged instruction was “akin to a

comprehensive instruction enumerating the elements of the cause of action on which the

plaintiff must sustain her burden of proof in order to prevail.” Id. Such instructions, the

Court noted, are “particularly vital to a jury’s ability to understand and apply the law to

the facts in each particular case.” Id. at 524. The Court reasoned that the instruction was

erroneous as a matter of law because it identified factual circumstances that, if proven,

“automatically constitute[d]” negligence without consideration of whether the school

corporation had breached a duty. Id. The instruction thus “substantially misstated the

plaintiff’s burden of proof.” Id. at 525. The Court further ruled that the erroneous

instruction was not saved by another jury instruction defining negligence because, when

read together, Final Instruction 22 remained ambiguous and the error was not corrected

by the remaining portions of the jury charge.

       Res ipsa loquitur was not at issue in Rosales, so that case is not controlling here.

Furthermore, Final Instruction 12 is quite different from the erroneous instruction at issue

in Rosales. The instruction in Rosales may have misled the jury into concluding that if

Rosales had proven that the school had failed to act in a specific manner, it could find

negligence without considering whether the school had breached a duty. By contrast,

Final Instruction 12 merely provided that if the Lardydells proved certain facts “beyond

the weight of the evidence,” then the jury “may infer” negligence. Appellant’s App. p.

                                             11
18. The jury was not obligated by the terms of the instruction to find negligence, and

GCS was free to submit evidence to rebut any inference of negligence. Rosales is thus

distinguishable.

       Furthermore, the instructions in this case, when read together, sufficiently defined

negligence. We consider jury instructions as a whole and in reference to each other.

Callaway v. Callaway, 932 N.E.2d 215, 222-23 (Ind. Ct. App. 2010). An improper

instruction will merit reversal only if it so affects the entire charge that the jury is misled

as to the law in the case. Upham v. Morgan Cnty. Hosp., 986 N.E.2d 834, 837-38 (Ind.

Ct. App. 2013), trans. denied.

       Here, the court instructed the jury to consider all of the instructions together,

without singling out any one instruction. Appellant’s App. p. 28. In Final Instruction 7,

the court defined negligence as follows:

       Negligence is the failure to use reasonable care.

       A person may be negligent by acting or by failing to act. A person is
       negligent if he or she does something a reasonably careful person would not
       do in the same situation, or fails to do something a reasonably careful
       person would do in the same situation.

Id. at 33. In Final Instruction 9, the court further instructed the jury, “The appropriate

standard is whether the Gary Community School Corporation, by its personnel, exercised

their [sic] duty with the level of care that an ordinary prudent person would exercise

under the same or similar circumstances.” Id. at 35.

       Unlike in Rosales, Final Instruction 12 here was not a comprehensive instruction

intended to supplant other instructions defining negligence.          In addition, the other


                                              12
instructions clearly established that in order to prove negligence, the Lardydells were

required to prove that GCS had a duty to Prince and did not fulfill its duty with a

reasonable level of care.     Viewing the instructions as a whole, we conclude the

instructions adequately informed the jury as to the elements of negligence and did not

confuse or mislead them to misapply the law.

       Next, GCS claims the court should not have instructed the jury on res ipsa

loquitur. “When presented with a request for a res ipsa loquitur instruction, the trial

court’s duty is to determine whether the plaintiff produced evidence from which the jury

could reasonably conclude the existence of the underlying elements of exclusive control

and probability of negligence.” Sharp v. LaBrec, Inc., 642 N.E.2d 990, 993 (Ind. Ct.

App. 1994), trans. denied. Having reviewed the record, particularly evidence of the

extensive security measures GCS implemented at West Side High School to keep out

intruders and monitor the hallways, we conclude there was sufficient evidence to warrant

the giving of the instruction. We find no abuse of discretion.

                                  B. Final Instruction 15

       GCS claims there was no evidence to support the giving of Final Instruction 15.

That instruction provided:

              If you decide from the greater weight of the evidence that School
       City of Gary [sic] is liable to Prince Lardydell, then you must decide the
       amount of money that will fairly compensate Prince Lardydell.

              In deciding the amount of money to award, you may consider:

       (1) the nature and extent of the injury, and the effect of the injury on Prince
           Lardydell’s ability to function as a whole person;


                                             13
       (2) whether the injury is temporary or permanent;

       (3) the physical pain and mental suffering Prince Lardydell has experienced
           and will experience in the future as a result of the injury;

       (4) the reasonable value of necessary medical care, treatment, and education
           services plaintiff incurred.

Id. at 41.

       The quantum of evidence necessary for the giving of an instruction is deliberately

set at a relatively low level in order to assure the right of parties to have the trier of fact

determine factual disputes and to preserve the constitutional right to trial by jury.

Upham, 986 N.E.2d at 838. Here, Prince presented testimony by Dr. Julian Ungar-

Sargon that he sustained a mild concussion as a result of the attack and incurred costs for

office visits and tests. There was also testimony that Prince’s mother took him to the

emergency room on the date of the attack.            In addition, Prince testified that he

experienced sporadic headaches for eighteen months as well as long-lasting symptoms of

mental anguish and depression caused by the attack. This was sufficient evidence of

damages to support the giving of the instruction.

                                       III. DAMAGES

       GCS contends the trial court should have granted its Motion for a New Trial,

Remittitur, and/or to Alter or Amend Judgment because the jury’s award of $120,000 is

unsupported by the evidence.

       A jury’s determination of damages is entitled to great deference when challenged

on appeal. Raess v. Doescher, 883 N.E.2d 790, 795 (Ind. 2008). A damage award will

not be reversed if it falls within the bounds of the evidence. Id. We look only to the

                                              14
evidence and inferences therefrom which support the jury’s verdict and will affirm if

there is any evidence in the record which supports the amount of the award, even if it is

variable or conflicting. Id.

       Damage awards for pain, suffering, fright, humiliation, and mental anguish are

particularly within the province of the jury because they may not be reduced to fixed

rules and mathematical precision. Ritter v. Stanton, 745 N.E.2d 828, 845 (Ind. Ct. App.

2001), trans. denied. Those categories of damages inevitably involve the weighing of

evidence and credibility of witnesses. Id. Thus, where damages cannot be calculated

with mathematical certainty, the jury has liberal discretion in assessing damages. Id.

       The trial court instructed the jury that it could consider the nature, extent, and

duration of Prince’s injuries, as well as his ability to function as a whole person, in

assessing damages. The jury was also told to consider Prince’s past and future physical

pain and mental suffering resulting from the attack. Finally, the trial court instructed the

jury to review the costs of mental care and treatment Prince incurred.

       Prince’s medical bills were comparatively small, totaling no more than a few

thousand dollars. However, Dr. Ungar-Sargon diagnosed Prince with a mild concussion,

and he experienced sporadic headaches extending over a period of eighteen months after

the attack.

       Next, we turn to mental pain and suffering. Before the attack, Prince investigated

colleges by going on tours and looking at applications. He had also looked into taking

aviation or dental courses after high school.      Prince made “Cs and Bs” during his



                                            15
freshman year at West Side and had a GPA of 2.59. Tr. pp. 271, 275. In addition, he and

his mother had saved up several thousand dollars to pay for college.

      After the attack, Prince experienced mental anguish and, at times, severe

depression. He stayed inside his house almost the entire summer after the attack and did

not talk much to his family or friends. Prince was afraid to go outside. The family

moved to Indianapolis and enrolled Prince in a new school after he told Erma he was

contemplating suicide. Id. at 338. It “weighed real heavy on him” to leave the only

home he had ever known and move to Indianapolis. Id. at 280. When break-ins occurred

in the family’s former home in Gary, and Erma was required to go address the events,

Prince “blamed himself” for the family’s move and financial problems. Id. at 281.

      Prince’s academic performance suffered at his new high school in Indianapolis.

He graduated, but his overall grade point average dropped to 1.76, and his class ranking

was 699 out of 817. He missed school eighteen times during his sophomore year. Prince

testified he was distracted a lot and “lost a lot of motivation” because he “was just

looking over [his] back a lot of times.” Id. at 309. He did not go on any more college

tours because he was afraid. Prince applied to several colleges but was rejected due to

his low grades.

      After graduating from high school, Prince was only able to obtain several part-

time jobs and continued to experience mental anguish and depression. Prince testified

that even six years after the attack, he did not trust anyone, “not even people I’ve been

cool with for years.” Id. at 308. He also tended to stay home when not working because

“you just never know what can happen outside.” Id.

                                           16
       This evidence would permit a reasonable jury to conclude that Prince suffered

severe, long-lasting mental trauma as a result of the attack which severely limited his

ability to function as a whole person. The attack caused him to experience depression to

the point of contemplating suicide, which led to his family having to move from their

home and leave town so that he could attend a new school. In addition, mental pain and

suffering detrimentally affected Prince’s high school studies to the point that it all but

destroyed his college prospects. Furthermore, he still experiences fear to the point that it

hinders his personal relationships and his freedom of movement.

       We find this evidence is sufficient to sustain the jury’s award of $120,000 despite

Prince’s comparatively small medical bills. See Weinberger v. Boyer, 956 N.E.2d 1095,

1113 (Ind. Ct. App. 2011) (affirming $292,000 damage award for future medical

expenses and emotional pain and suffering although plaintiff’s tangible medical bills

were only $8,000), trans. denied; Landis v. Landis, 664 N.E.2d 754, 757-58 (Ind. Ct.

App. 1996) (affirming damage award of $537,200 for emotional pain and suffering where

defendant attacked plaintiff, physically forced her from her place of employment, and

deprived her of income), trans. denied; Planned Parenthood of Nw. Ind., Inc. v. Vines,

543 N.E.2d 654, 662 (Ind. Ct. App. 1989) (affirming damage awards that “were almost

exactly tenfold” plaintiffs’ demonstrated special damages because plaintiffs proved

“intangible damages” including pain and suffering), trans. denied.

       GCS notes that Prince never sought treatment from a mental health professional

for his depression. GCS also states that Dr. Ungar-Sargon referred Prince to a Dr. Coyle

for psychological testing in 2006, and the testing showed no problems. At best, GCS

                                            17
requests that we conduct a comparative analysis of the evidence because their evidence

conflicts with Prince and Erma’s testimony and evidence as heard by the jury. However,

we find that GCS’s evidence does not require us to second-guess the jury’s decision.

                                    CONCLUSION

      For the reasons stated above, we affirm the judgment of the trial court.

      Affirmed.

VAIDIK, C.J., and NAJAM, J., concur.




                                           18
