Court of Appeals of Indiana | Memorandum Decision 20A

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### MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D) , this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

A TTORNEY S FOR A PPELLANT S Matthew R. Kaczmarek Michael W. Shakour Sopko, Nussbaum, Inabnit & Kaczmarek South Bend, Indiana A TTORNEY FOR A PPELLEE S J. Thomas Vetne Jones Obenchain, LLP South Bend, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Susan Mwangi and Joe Mwangi , Appellant s - Plaintiffs ,

v. 

### Nicholas Bobelinski and Classic Seamless Gutter, Inc. , Appellee s - Defendants. August 11 , 2020 Court of Appeals Ca se No. 20A

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- 528 Appeal from the St. Joseph Superior Court The Honorable Margot F. Reagan, Judge Trial Court Cause No. 71D04

- 1603

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- 167

Kirsch , Judge
.Court of Appeals of Indiana | Memorandum Decision 20A

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[1] Susan Mwangi (“Susan”) and Joe Mwangi 1 (“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 request s for a continuanc e ; and

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

[2] Finding no error, we affirm.



### Facts and Procedural History

[3] On May 22, 2014, Susan was stopped 2 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 w as stopped when the accident occurred. Appellant’s App. Vol. 2 at 17

- 19; Appellants Br. at 8.
3 The Mwangis ha ve placed both the January 23, 2020 pretrial transcript and February 3, 2020 bench trial transcript in the ir Appellant’s A ppendix. See Appellant’s App. Vol. 2 at 47

- 116. They ha ve also produced the pretrial transcript in a separate transcript volume but ha ve 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

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the a ccident, Susan, who is from Kenya, was in the United States studying toward a m aster’s d egree 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 completel y,” 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 medi cation, opting instead for cold packs , herbs , and deep

- breathing exercises for the pain. 4 Id. at 101

- 0 3

.

[4] O n 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 reques t ing 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

- co unsel filed a motion to withdraw appearance on December 20, 2017, citing the Indiana R ules of P rofessional

provides that “[b] ecause the Transcript is transmitted to the Court on Appeal pursuant to Rule 12(B), parties sho uld 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 loc ated 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

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C onduct 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 withdr ew , the counsel for Bobelinski and Seamless Gut t er 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 Febru ary 26, 2018, her second counsel appear ed 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, 201 9, 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 th e attor ney - client relationship had been i rreparabl y breach ed, that counsel could no longer provide adequate repres en tation, and that Susan had “ refused t o 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

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[7] On December 23, 2019, Susan filed a pro se m otion for e nlargement of t ime 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 constrain t s and a medical issue related to a member of L a Salvia’s family. Id. Counsel for Bobelinski and Seamless Gutter objected to Susan’s motion , and on January 8, 2020 , the trial

court den ied 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 la wyer 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 & brai n 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 JudgeCourt of Appeals of Indiana | Memorandum Decision 20A

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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 Ang e les 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 request s , 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 act ivities 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 b e 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 andCourt of Appeals of Indiana | Memorandum Decision 20A

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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 pro fessional 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 individu al 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 somebod y 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

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MS. MWANGI: That ’ s why I needed t ime. I needed

--

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

MS. MWA NGI: 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 indicate d that she did not understand the difference between the two types of trial, stating that her “ brain is just cloudy

. ” Id . at 26. Th e trial court s tated 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, indicat ing 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 unableCourt of Appeals of Indiana | Memorandum Decision 20A

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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 w ere too high to qualify. Id. at 83. With respect to
Sus an’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 w as dismissed because nothing had been done on the case. There was a mediation. It fell through. It ’ s got a history that is very bothe rsome.

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 openi ng 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 s he was “ out of conscious ness for a while. ” Id. at 92. S usan added that after a while she felt that she was

“ okay , ” did not “h ave 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

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[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 a nd 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 c oncluded 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 appeal s.



### Discussion and Decision
I. W as 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 dis cretion of the court, and [a continuance] shall be allowed upon a showing of good cause established by affidavit or other evidence.” Ind

. Tr ial 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 conclus ion 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 counselCourt of Appeals of Indiana | Memorandum Decision 20A

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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] S usan 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 secur e counsel

.

[16] We note that “ w ithdrawal of legal counsel does not entitle a party to an automatic continuance[.]” R iggin 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 forese eable; 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

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[17] Here, t he 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. S usan retained Blackburn and Green as counsel until the order granting withdrawal was issued o n 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 t he time Susan’s se cond counsel withdrew , the c ase had been active for approximately five and one

- half years and h er complaint had been on the trial court’s docket for a little over three and

one - half years

.

[18] T he second attorney’s withdrawal occurred approximately three wee ks 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. I ndeed, 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

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Id. at 83

- 84

. As to whether Bobelinski and Seamless Gutter would have been prejudiced by further delay ing 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 advi ce , but t here 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

. U nder 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 den ial of Susan’s reque sts 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 fo r a continuance when his counsel withdrew f

ive days before trial

. 679 N.E.2d at 154

- 55

. Also , in Hess , husband’s counsel withdrew f ive 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 hu sband engaged in dilatory tactics, and he was deprived of counsel at the most crucial sta ge in the proceedings

. Id. at 15 5

. 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 s econd counsel. Hess does not require reversal in this case.Court of Appeals of Indiana | Memorandum Decision 20A

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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 Su san 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 Bobelin s ki and Seamless Gutter moved for a directed verdict and , on appeal, recognize that because t his 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 T rial R ule 41(B) motion to dismiss, we apply the following standard of re view:
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 wil l 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

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[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 , a nd 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 th at 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 valu e 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 cert ainty 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 Bobeli n s k i 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 “ onlyCourt of Appeals of Indiana | Memorandum Decision 20A

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assume maybe [Bobelinski] was doing something else. Otherwise, he could have been preparing to stop .” Id. at 98 . There is no e vidence th at 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, w e 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 ; r ather, her injuries w ere 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. W e 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 a lso Martin , 120 N.E.3d at 250 (explaining the difference between subjective and objective injuries)

. Because Susan d id 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

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[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 a t 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 medic al conditions to indicate whethe r 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 causatio n)

. While we acknowledge that Susan faced challenges in representing herself at the bench trial, w e cannot say that Susa n was denied her day in court or that the trial court clearly erred in dismissing the action

.

[25] Affirmed.
Pyle , J., a nd T avitas , J. , concur.