MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                     FILED
regarded as precedent or cited before any                                        Aug 11 2020, 8:48 am

court except for the purpose of establishing                                         CLERK
                                                                                 Indiana Supreme Court
the defense of res judicata, collateral                                             Court of Appeals
                                                                                      and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANTS                                 ATTORNEY FOR APPELLEES
Matthew R. Kaczmarek                                     J. Thomas Vetne
Michael W. Shakour                                       Jones Obenchain, LLP
Sopko, Nussbaum, Inabnit &                               South Bend, Indiana
Kaczmarek
South Bend, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Susan Mwangi and Joe Mwangi,                             August 11, 2020
Appellants-Plaintiffs,                                   Court of Appeals Case No.
                                                         20A-CT-528
        v.                                               Appeal from the
                                                         St. Joseph Superior Court
Nicholas Bobelinski and Classic                          The Honorable
Seamless Gutter, Inc.,                                   Margot F. Reagan, Judge
Appellees-Defendants.                                    Trial Court Cause No.
                                                         71D04-1603-CT-167



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CT-528 | August 11, 2020                     Page 1 of 17
[1]   Susan Mwangi (“Susan”) and Joe Mwangi1 (“Joe’), collectively (“the

      Mwangis”) appeal the trial court’s entry of judgment in favor of Nicholas

      Bobelinski (“Bobelinski”) and Classic Seamless Gutter, Inc. (“Seamless

      Gutter”). The Mwangis raise the following two issues for our review:


               I.       Whether the trial court abused its discretion when it
                        denied Susan’s requests for a continuance; and


               II.      Whether the trial court erred by granting Bobelinski and
                        Seamless Gutter’s motion for a directed verdict.


[2]   Finding no error, we affirm.


                                    Facts and Procedural History
[3]   On May 22, 2014, Susan was stopped2 at a traffic light at the intersection of

      South Bend Avenue and Twyckenham Avenue in South Bend, Indiana when

      her vehicle was hit by Bobelinski, who was driving a vehicle owned by his

      employer, Seamless Gutter. Appellant’s App. Vol. 2 at 17, 92, 97.3 At the time of




      1
       Susan’s husband, Joe, has resided in Kenya throughout the underlying litigation and has not been able to
      participate in any of the proceedings due to his pending immigration petition not yet being processed. See
      Appellant’s Br. at 8 n.2. Thus, we refer primarily to Susan.
      2
       At trial, Susan claimed she was driving when the accident occurred, but both her complaint and her
      Appellant’s Brief state that she was stopped when the accident occurred. Appellant’s App. Vol. 2 at 17-19;
      Appellants Br. at 8.
      3
        The Mwangis have placed both the January 23, 2020 pretrial transcript and February 3, 2020 bench trial
      transcript in their Appellant’s Appendix. See Appellant’s App. Vol. 2 at 47-116. They have also produced the
      pretrial transcript in a separate transcript volume but have not done the same for the bench trial transcript.
      See Tr. Vol. 2 at 1-27. We cite to the January 23, 2020 pretrial transcript as “Tr. Vol. 2” and to the February 3,
      2020 bench trial transcript as “Appellant’s App. Vol. 2.” We remind counsel that Appellate Rule 50(F)

      Court of Appeals of Indiana | Memorandum Decision 20A-CT-528 | August 11, 2020                       Page 2 of 17
      the accident, Susan, who is from Kenya, was in the United States studying

      toward a master’s degree in Humanitarian Aid from Fordham University. Tr.

      Vol. 2 at 13. Susan suffered injuries to her head and neck, saying that she “saw

      stars,” “blacked out completely,” and “didn’t know where [she] was.”

      Appellant’s App. Vol. 2 at 100. Susan recalled being asked if she wanted to go to

      the hospital after the accident but decided to not go to the hospital, preferring

      instead to “listen to [her] body.” Id. Three days after the accident, Susan began

      to experience pain and went to Dr. Smita Patel (“Dr. Patel”) for treatment. Id.

      at 101. Dr. Patel gave Susan muscle relaxers and pain medication to treat her

      pain. Id. Susan did not take the muscle relaxers or pain medication, opting

      instead for cold packs, herbs, and deep-breathing exercises for the pain.4 Id. at

      101-03.


[4]   On March 28, 2016, the Mwangis filed a complaint alleging, among other

      things, that Bobelinski was acting within the scope of his employment with

      Seamless Gutter when he caused the accident and requesting a jury trial.5 Id. at

      17-19. At the time the complaint was filed, Susan was represented by the law

      firm of Blackburn & Green. Id. Her then-counsel filed a motion to withdraw

      appearance on December 20, 2017, citing the Indiana Rules of Professional




      provides that “[b]ecause the Transcript is transmitted to the Court on Appeal pursuant to Rule 12(B), parties
      should not reproduce any portion of the Transcript in the Appendix”
      4
        At some point, Susan was referred to Dr. Walter Langheinrich, who is a neurosurgeon, and has also been
      treated by two chiropractors, Dr. Toby Mitchell and Dr. Rahim Salehmohamed, who is located in
      California. Appellant’s App. Vol. 2 at 104-07; Appellant’s Br. at 9.
      5
          Joe alleged loss of services and consortium of Susan as a result of the accident. Appellant’s App. Vol. 2 at 18.


      Court of Appeals of Indiana | Memorandum Decision 20A-CT-528 | August 11, 2020                          Page 3 of 17
      Conduct as the reason. Id. at 22. On January 2, 2018, the trial court granted

      the motion to withdraw appearance. Id. at 26.


[5]   After Susan’s first counsel withdrew, the counsel for Bobelinski and Seamless

      Gutter filed a motion to dismiss the complaint with prejudice on January 8,

      2018, citing failure to prosecute under Indiana Rule of Trial Procedure 41(E) as

      the basis for dismissal. Id. at 27-28. On January 24, 2018, the trial court issued

      an order dismissing Susan’s complaint without prejudice. Id. at 29. She then

      hired the law firm of Pfeifer Morgan and Stesiak to represent her. Id. at 30. On

      February 26, 2018, her second counsel appeared on her behalf and filed a

      motion to reinstate the complaint. Id. at 30-32. The following day, the trial

      court granted the motion to reinstate, and Susan’s complaint was reinstated. Id.

      at 33. On January 10, 2019, the trial court issued a pretrial order, which,

      among other matters, set a jury trial for December 3, 2019. Id. at 34.


[6]   On November 13, 2019, Susan’s second counsel filed a motion to withdraw

      appearance. Id. at 36-37. The motion stated that the attorney-client

      relationship had been irreparably breached, that counsel could no longer

      provide adequate representation, and that Susan had “refused to heed counsel’s

      advice with respect to her case.” Id. at 36. The trial court granted the motion to

      withdraw on November 22, 2019 and, in that same order, gave Susan one

      month to retain new counsel. Id. at 38. The trial court’s order also rescheduled

      the December 3, 2019 jury trial to February 3, 2020, over defense counsel’s

      objection, and scheduled a final pretrial conference for January 23, 2020. Id.



      Court of Appeals of Indiana | Memorandum Decision 20A-CT-528 | August 11, 2020   Page 4 of 17
[7]   On December 23, 2019, Susan filed a pro se motion for enlargement of time to

      continue the February trial date and asking for thirty days to secure trial

      counsel. Id. at 39. She attached a letter dated December 20, 2019 from Richard

      LaSalvia (“LaSalvia”), a lawyer she had attempted to hire. Id. at 40. LaSalvia

      was unable to represent Susan due to time constraints and a medical issue

      related to a member of LaSalvia’s family. Id. Counsel for Bobelinski and

      Seamless Gutter objected to Susan’s motion, and on January 8, 2020, the trial

      court denied the motion. Id. at 12, 40.


[8]   On January 17, 2020, the trial court received a letter from Susan, titled

      “REQUEST FOR AN ALTERNATE JUDGE[,]” which stated as follows:


              Reasons for requesting another Judge highlighted below:


              A. Judge has denied request for extension


              B. My lawyer voluntarily withdrew his representation


              C. Unable to get a lawyer because of the short time to trial date


              D. Current Judge has given a reason for denial for extension, it
              is my belief this Judge is biased against my case or like the other
              professionals has misunderstood my cry for further treatment
              with neck & brain experts


              E. Not mentally stable to go through trial, I feel abandoned and
              misunderstood by the treating physician, the two lawyers who
              have voluntarily quit on me, my car insurance company that
              denied me treatment with experts and now the current Judge


      Court of Appeals of Indiana | Memorandum Decision 20A-CT-528 | August 11, 2020   Page 5 of 17
              F. I request the court for more time to hire a lawyer whose letter
              is required by the medical doctor prior to his evaluation and
              treatment


              G. I request the court to allow medical report from the Los
              Angeles chiropractic doctor


              H. And request the court to allow report from an expert
              independent medical examiner doctor in neck & brain trauma


      Id. at 43. Counsel for Bobelinski and Seamless Gutter objected to the requests,

      and on January 22, 2020, the trial court issued an order denying Susan’s

      requests. Id. at 14-15.


[9]   On January 23, 2020, the trial court held a final pretrial conference. Id. at 10.

      Susan appeared pro se at the hearing and explained how she perceived her case:


              I see two parts of my case that is the medical case or treatment
              for my brain activities to be better stable and to be coherent in the
              way I do things, at least to get it to the level where I used to be
              before the accident. And I don’t have anybody else here to help
              me except me and my son.


              So there is a lot of part -- then getting to the part of the -- my --
              the two lawyers I’ve had who wanted to close the case and that I
              would say they’re not into the treatment or into my well being,
              my getting better so I’m there in the middle. And that has been
              the problem.


              In fact, if I were to be asked, I am not interested in my case going
              for trial or coming here to you. If I can be given time to go
              through the treatment, then whoever I’ll have as a lawyer and


      Court of Appeals of Indiana | Memorandum Decision 20A-CT-528 | August 11, 2020   Page 6 of 17
               him can now come and see whatever can be given or not be
               given.


       Tr. Vol. 2 at 8-9.


[10]   The trial court indicated that it wanted the case to proceed as scheduled on

       February 3, 2020 but as a bench trial and not as a jury trial, stating that it was

       “not going to continue this [case] anymore.” Id. at 11-12. Susan stated that she

       was “not even interested to be given the money people get when they win a

       case. That is not in me at all[,]” but that she was “requesting to be given time

       and I have to work to get the money to pay the doctors” for treatment. Id. at

       13, 14. The following exchange then ensued:


               THE COURT: All right. Well, back to my question, must we go
               forward with a jury trial or can we do a bench trial on February
               3rd?


               MS. MWANGI: You know the reason why I hesitate is because
               I don’t have a professional medical report to support my case and
               the reason is it is very, very difficult and it has been proven it is
               difficult for anything --they may call it, it’s just -- a simple group
               of flash but it’s not (sic), it depends from individual to individual
               and what type of cars were involved in the accident. Because the
               minute your head is thrown that way and then that way
               (indicating) and you [lose] consciousness, as I did, and after --
               from day one I lost consciousness for some time, that means
               somebody happened into your brain.


               THE COURT: Again, you’ve had years to get an opinion from a
               doctor and you -- again, you have to prove your case.



       Court of Appeals of Indiana | Memorandum Decision 20A-CT-528 | August 11, 2020   Page 7 of 17
               MS. MWANGI: That’s why I needed time. I needed --


               THE COURT: But you had time. That’s the problem here.


               MS. MWANGI: I don’t have the time.


               THE COURT: You had time.


               MS. MWANGI: March?


               THE COURT: We can’t let the other party go on and on and
               on. And I don’t know what else to do at this point.


       Id. at 21-22. The trial court explained to Susan the differences between a bench

       trial and a jury trial, but Susan indicated that she did not understand the

       difference between the two types of trial, stating that her “brain is just cloudy.”

       Id. at 26. The trial court stated the case would proceed as a bench trial but if

       Susan was able to retain counsel before February 3, 2020, there could be a jury

       trial. Id.


[11]   On February 3, 2020, the trial began. Appellant’s App. Vol. 2 at 10. Susan

       appeared without counsel, indicating that she would proceed pro se and that

       she was unable to find counsel because of the timing, which was “during the

       holy days and most of them were out” so she had “to wait until they came in.

       And the few [she] talked to and the ones who were willing to take the case, they

       said, one, it is very near to -- for trial -- pretrial and trial.” Id. at 81. Susan

       explained that she had attempted to retain LaSalvia as counsel, who was unable


       Court of Appeals of Indiana | Memorandum Decision 20A-CT-528 | August 11, 2020   Page 8 of 17
       to take her case, and that she had attempted to retain two other lawyers who

       were also unable to take her case. Id. at 82-83. The trial court also stated that

       it had attempted to connect Susan with the pro bono program in the county, but

       her income and assets were too high to qualify. Id. at 83. With respect to

       Susan’s inability to retain counsel, the trial court observed:


               But, you know, . . . you’ve had no luck getting an attorney. I
               mean -- to continue this again for you to keep hunting for an
               attorney, it doesn’t -- I mean it doesn’t make any sense at this
               point. This accident happened six years ago. This case was filed
               four years ago. There was a time period where this case was
               dismissed because nothing had been done on the case. There
               was a mediation. It fell through. It’s got a history that is very
               bothersome.


       Id. at 84. The trial court asked Susan whether she wanted to waive her right to

       a jury trial and proceed with the bench trial, Susan stated “[w]e can proceed,”

       and the trial court allowed Susan to do an opening statement. Id. at 88.


[12]   In her opening statement, Susan stated that her case was about “an accident

       that happened on May 22nd, 2014” in which she was “hit from the rear,”

       causing her body to bounce “backwards, forwards, and then -- backwards,

       forwards, and then backwards again[,]” and that she was “out of consciousness

       for a while.” Id. at 92. Susan added that after a while she felt that she was

       “okay,” did not “have any pain anywhere,” and eventually called her doctor,

       who prescribed muscle relaxers, which she did not take. Id. at 93. She

       explained that she was sent to a neurosurgeon who “diagnosed [her] with

       occipital neuralgia and TOS, thoracic outlet syndrome.” Id. at 94.

       Court of Appeals of Indiana | Memorandum Decision 20A-CT-528 | August 11, 2020   Page 9 of 17
[13]   The trial court questioned Susan about the accident and Susan’s medical

       treatment. Id. at 94-110. Susan attempted to introduce the police report of the

       accident and three reports from her doctors, which were all excluded from

       evidence on hearsay grounds. Id. at 112-13. Susan had no witnesses to testify

       on her behalf and concluded her case-in-chief. Id. at 114. Counsel for

       Bobelinski and Seamless Gutter immediately moved for a directed verdict on

       the basis that Susan had not presented any evidence of causation, which the

       trial court granted. Id. at 115. Susan now appeals.


                                      Discussion and Decision

            I.       Was Denying a Continuance an Abuse of Discretion?
[14]   Susan argues that the trial court abused its discretion when it denied her

       requests to continue the trial. Upon a party’s motion, “trial may be postponed

       or continued in the discretion of the court, and [a continuance] shall be allowed

       upon a showing of good cause established by affidavit or other evidence.” Ind.

       Trial Rule 53.5. A trial court’s decision to grant or deny a motion to continue a

       trial date is reviewed for an abuse of discretion. Gunashekar v. Grose, 915

       N.E.2d 953, 955 (Ind. 2009). There is a strong presumption that the trial court

       properly exercised its discretion. Id. A trial court abuses its discretion when it

       reaches a conclusion that is clearly against the logic and effect of the facts or the

       reasonable and probable deductions that may be drawn therefrom. Evans v.

       Thomas, 976 N.E.2d 125, 127 (Ind. Ct. App. 2012), trans. denied. A pro

       se litigant is held to the same established rules of procedure that trained counsel



       Court of Appeals of Indiana | Memorandum Decision 20A-CT-528 | August 11, 2020   Page 10 of 17
       is bound to follow. Goossens v. Goossens, 829 N.E.2d 36, 43 (Ind. Ct. App. 2005)

       (citing Hess v. Hess, 679 N.E.2d 153, 155 (Ind. Ct. App. 1997)).


[15]   Susan contends that she demonstrated good cause for a continuance by

       contacting multiple attorneys to represent her between the date her second

       counsel withdrew from representation and the February 3, 2020 bench trial.

       She also maintains that she “lacked the mental capacity, legal education,

       experience, and language skills to proceed pro se in this trial.” Appellant’s Br. at

       18. We recognize Susan’s circumstances as a pro se litigant; however, we

       cannot agree that the trial court abused its discretion by denying her requests for

       a continuance to secure counsel.


[16]   We note that “withdrawal of legal counsel does not entitle a party to an

       automatic continuance[.]” Riggin v. Rea Riggin & Sons, Inc., 738 N.E.2d 292,

       311 (Ind. Ct. App. 2000). In considering denials of motions to continue due to

       withdrawal of legal counsel, Indiana courts have analyzed whether: the

       withdrawal occurred at a crucial stage in the proceedings; the movant had

       engaged in dilatory tactics; the non-movant would have been prejudiced by a

       delay; new counsel would have had adequate time to prepare for trial taking

       into account the complexity of the case; the attorney’s withdrawal was expected

       or foreseeable; the movant was at fault; and what efforts the movant took to

       secure new counsel. See Hess, 679 N.E.2d at 154; Homehealth, Inc. v. Heritage

       Mut. Ins. Co., 662 N.E.2d 195, 198 (Ind. Ct. App. 1996), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 20A-CT-528 | August 11, 2020   Page 11 of 17
[17]   Here, the accident occurred on May 22, 2014, and the complaint was initially

       filed on March 28, 2016 by Blackburn and Green. Appellant’s App. Vol. 2 at 17-

       19, 92, 97. Susan retained Blackburn and Green as counsel until the order

       granting withdrawal was issued on January 2, 2018. Id. at 26. The case was

       dismissed and then was reinstated upon the request of by Susan’s second

       counsel, who represented her until the order granting withdrawal was issued on

       November 22, 2019. Id. at 29-33, 38. By the time Susan’s second counsel

       withdrew, the case had been active for approximately five and one-half years

       and her complaint had been on the trial court’s docket for a little over three and

       one-half years.


[18]   The second attorney’s withdrawal occurred approximately three weeks before

       the initial trial date of December 3, 2019, which is a crucial stage in the

       proceedings; however, the trial court provided Susan with thirty days to find

       counsel and rescheduled the trial to February 3, 2020. Id. at 38. There is no

       indication that Susan had purposefully engaged in dilatory tactics, but her

       complaint had been on the docket for nearly four years at the time of the

       February 3, 2020 bench trial. Indeed, the trial court observed:


               I mean -- to continue this again for you to keep hunting for an
               attorney, it doesn’t -- I mean it doesn’t make any sense at this
               point. This accident happened six years ago. This case was filed
               four years ago. There was a time period where this case was
               dismissed because nothing had been done on the case. There
               was a mediation. It fell through.




       Court of Appeals of Indiana | Memorandum Decision 20A-CT-528 | August 11, 2020   Page 12 of 17
Id. at 83-84. As to whether Bobelinski and Seamless Gutter would have been

prejudiced by further delaying the trial, the trial court noted that, in light of the

length of the time the case had been pending, to grant Susan a continuance was

“not fair to the other party.” Tr. Vol. 2 at 18. Susan appeared to have differing

objectives about her case than either of her previous counsels as both withdrew

on the basis that she was not following their advice, but there is nothing in the

record to indicate whether her second attorney’s withdrawal before the trial was

otherwise expected or foreseeable. Appellant’s App. Vol. 2 at 22, 36. We

acknowledge that Susan attempted to secure new counsel and reached out to

three attorneys, none of whom were able to take her case. Id. at 39-40, 81-83.

Under the circumstances of this case, including the nearly four years that had

elapsed since the March 2016 filing of the complaint, her failures to follow the

advice of her two previous attorneys, and her eventual decision to proceed with

the bench trial, we cannot say that Susan demonstrated good cause to continue

the trial. Thus, we find no abuse of discretion in the trial court’s denial of

Susan’s requests to continue the trial to secure counsel.6 See Gunashekar, 915

N.E.2d at 956 (affirming the trial court’s denial of a motion to continue the




6
  To the extent Susan argues that the result in here is controlled by Hess, we disagree. In Hess, a panel of this
court concluded that the husband in a divorce case demonstrated good cause for a continuance when his
counsel withdrew five days before trial. 679 N.E.2d at 154-55. Also, in Hess, husband’s counsel withdrew
five days before trial, forcing husband to appear pro se at trial. Id. at 154. Husband explained that he had
unsuccessfully tried to find new counsel and nothing in the record showed husband engaged in dilatory
tactics, and he was deprived of counsel at the most crucial stage in the proceedings. Id. at 155. Here, unlike
the husband in Hess, Susan had previously retained the services of attorneys from two different law firms, her
complaint had been pending for nearly four years (as opposed to two years in Hess), and the trial court
continued the December 3, 2019 to February 3, 2020 and gave Susan thirty days to secure counsel following
the November 22, 2019 withdrawal of her second counsel. Hess does not require reversal in this case.

Court of Appeals of Indiana | Memorandum Decision 20A-CT-528 | August 11, 2020                     Page 13 of 17
       bench trial); Fetner v. Maury Boyd & Assocs., Inc., 563 N.E.2d 1334, 1338 (Ind. Ct.

       App. 1990) (affirming the trial court’s denial of the defendant’s motion to

       continue to hire counsel and holding that the denial of the motion to continue

       did not constitute a violation of due process), trans. denied.


                      II.      Did Susan Meet Her Evidentiary Burden?
[19]   Susan also argues that she met her evidentiary burden and that the trial court

       improperly dismissed her case. Counsel for Bobelinski and Seamless Gutter

       moved for a directed verdict and, on appeal, recognize that because this was a

       bench trial, it is properly reviewed as an Indiana Trial Rule 41(B) motion for

       involuntary dismissal. See Bowyer v. Ind. Dep’t of Natural Res., 944 N.E.2d 972,

       981 n.10 (Ind. Ct. App. 2011). “A Trial Rule 41 motion to dismiss tests the

       sufficiency of the plaintiff’s case in chief.” Brown v. Guinn, 970 N.E.2d 192, 195

       (Ind. Ct. App. 2012). When reviewing a ruling on a Trial Rule 41(B) motion to

       dismiss, we apply the following standard of review:


               The grant or denial of a motion to dismiss made under Trial Rule
               41(B) is reviewed under the clearly erroneous standard. In
               reviewing a motion for involuntary dismissal, this court will not
               reweigh the evidence or judge the credibility of the witnesses.
               We will reverse the trial court only if the evidence is not
               conflicting and points unerringly to a conclusion different from
               the one reached by the lower court.


       Todd v. State, 900 N.E.2d 776, 778 (Ind. Ct. App. 2009) (quoting Thornton-

       Tomasetti Eng’rs v. Indianapolis-Marion Cty. Pub. Library, 851 N.E.2d 1269, 1277

       (Ind. Ct. App. 2006)).

       Court of Appeals of Indiana | Memorandum Decision 20A-CT-528 | August 11, 2020   Page 14 of 17
[20]   Susan contends that she carried her evidentiary burden by proving that she was

       rear-ended, that she suffered injuries in the accident that they were caused by

       Bobelinski, and that equity favors she receive her day in court. Bobelinski and

       Seamless Gutter maintain that Susan did not meet her evidentiary burden and

       that the trial court was correct to grant their motion.


[21]   “The tort of negligence consists of three elements: (1) a duty owed to the

       plaintiff by the defendant; (2) a breach of that duty by the defendant; and (3)

       injury to the plaintiff proximately caused by that breach.” Martin v. Ramos, 120

       N.E.3d 244, 249 (Ind. Ct. App. 2019) (quoting Kincade v. MAC Corp., 773

       N.E.2d 909, 911 (Ind. Ct. App. 2002)). To satisfy his or her burden of proof, a

       plaintiff must present evidence of probative value based on facts, or inferences

       to be drawn from the facts, establishing that the wrongful act was the cause in

       fact of the occurrence and that the occurrence was the cause in fact of the

       injury. Foddrill v. Crane, 894 N.E.2d 1070, 1077 (Ind. Ct. App. 2008), trans.

       denied. “Standing alone, evidence establishing a mere possibility of cause or

       which lacks reasonable certainty or probability is not sufficient evidence by

       itself to support a verdict. Civil liability may not be predicated purely upon

       speculation.” Id.


[22]   The evidence most favorable to Susan’s case shows that on May 22, 2014 she

       was in an accident in which her vehicle was rear-ended in good weather

       conditions by the vehicle Bobelinski was driving for Seamless Gutter.

       Appellant’s App. Vol. 2 at 17-19, 97. While Susan presented evidence that she

       was involved in an accident with Bobelinski, she stated that she could “only

       Court of Appeals of Indiana | Memorandum Decision 20A-CT-528 | August 11, 2020   Page 15 of 17
       assume maybe [Bobelinski] was doing something else. Otherwise, he could

       have been preparing to stop.” Id. at 98. There is no evidence that Bobelinksi’s

       negligence caused the accident. A rear-end collision, standing alone, does not

       raise a presumption or authorize an inference of negligence. See Estate of Carter

       v. Szymczak, 951 N.E.2d 1, 3 (Ind. Ct. App. 2011) (citing Haidri v. Egolf, 430

       N.E.2d 429, 432 (Ind. Ct. App. 1982)).


[23]   As to causation, we agree with Susan that causation in a negligence case need

       not always be proven by expert medical testimony. See Martin, 120 N.E.3d at

       250 (observing that “[w]hen an injury is objective in nature, the plaintiff is

       competent to testify as to the injury and such testimony may be sufficient for

       the jury to render a verdict without expert medical testimony.” (quoting Daub v.

       Daub, 629 N.E.2d 873, 877 (Ind. Ct. App. 1994), trans. denied)). Here, there is

       no indication that Susan’s injuries were objective; rather, her injuries were

       primarily subjective as Susan complained of pain in her head and neck area and

       has received treatment for those ailments. Appellant’s App. Vol. 2 at 99-108. We

       have held that where a plaintiff’s injuries are subjective in nature, expert

       medical testimony is required to prove causation. Topp v. Leffers, 838 N.E.2d

       1027, 1033 (Ind. Ct. App. 2005); see also Martin, 120 N.E.3d at 250 (explaining

       the difference between subjective and objective injuries). Because Susan did not

       elicit expert testimony to establish that the accident caused her subjective

       injuries, she failed to carry her burden of showing that the accident caused those

       subjective injuries.




       Court of Appeals of Indiana | Memorandum Decision 20A-CT-528 | August 11, 2020   Page 16 of 17
[24]   Other facts undermine Susan’s claim that the accident caused her injuries.

       Susan did not seek medical attention immediately after the accident and instead

       waited three days before seeing Dr. Patel, after which she declined the use of

       muscle relaxers and pain medication to treat her pain. Id. at 101-02. Susan

       stated at the bench trial that she was suffering from thoracic outlet syndrome

       and occipital neuralgia but did not provide any medical reports or testimony to

       show a link between the accident and those conditions. Id. at 94, 106-07.

       Indeed, there is nothing in the record outside the temporal proximity of the

       accident and occurrence of Susan’s stated medical conditions to indicate

       whether her injuries were caused by the accident; thus, Susan has failed to meet

       her burden to prove that the accident caused her injuries. See Turner v. Davis,

       699 N.E.2d 1217, 1220 (Ind. Ct. App. 1998) (noting that a plaintiff who

       claimed that a sleep disorder began after an auto accident demonstrated only a

       temporal relationship that was insufficient to present a question to the trier of

       fact without any medical expert testimony on causation). While we

       acknowledge that Susan faced challenges in representing herself at the bench

       trial, we cannot say that Susan was denied her day in court or that the trial

       court clearly erred in dismissing the action.


[25]   Affirmed.


       Pyle, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CT-528 | August 11, 2020   Page 17 of 17
