Citation. Zimmerman v. Ausland, 266 Ore. 427, 513 P.2d 1167, 62 A.L.R.3d 1 (Or. 1973)
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Brief Fact Summary.
The Plaintiff, Zimmerman (Plaintiff), obtained a $7,500 jury verdict for damages incurred during an automobile accident caused by the Defendant, Ausland (Defendant). These damages included a permanent injury based on torn cartilage, preventing Plaintiff from engaging in strenuous physical education activities.
Synopsis of Rule of Law.
In order to recover for permanent injuries, a plaintiff has a duty to mitigate those damages by submitting to treatment that would cure the damages if a reasonable person would do so under the same circumstances.
Facts.
Plaintiff was injured during an automobile accident caused by the negligence of Defendant. Plaintiff obtained a jury verdict for $7,500, including damages for permanent injury based on torn semilunar cartilage in her knee. The jury found that she would no longer be able to engage in the strenuous physical education activities she had previously engaged in during her work as a substitute teacher.
Issue.
Did the trial court err by submitting to the jury the issue of whether plaintiff sustained a permanent injury and in instructing the jury on plaintiff’s life expectancy based on Standard Mortality Tables?
Held.
No. Judgment affirmed.
* It is well established that a plaintiff in a personal injury case cannot claim permanent injury damages if the permanent injury could have been avoided by submitting to treatment by a physician when a reasonable person would do so under the same circumstances. The standard applied is whether an ordinary, prudent person would have submitted to a surgical operation. Several factors are considered in this analysis, including the risk involved, the probability of success and the expenditure of money or effort required.
* In the present case defendant did not request an instruction on mitigation of damages. Nonetheless, if the facts are such that the Plaintiff failed to mitigate her damages as a matter of law, the Plaintiff would not be entitled to claim damages for permanent injury. The Court concludes that the evidence supporting Defendant’s contention that Plaintiff was required to submit to surgery were not so clear and convincing to make it proper for this Court to decide those questions as a matter of law.
Discussion.
The duty to mitigate is not a true duty, but actually a rule that does not allow recovery of damages the plaintiff could have avoided.
