Zimmerman v. Ausland

Opinion by: TONGUE, J.

This is an action for damages for personal injuries sustained in an automobile accident. Defendant admitted liability. The issue of damages was submitted to a jury, which returned a verdict of $ 7,500 in favor of plaintiff. Defendant appeals. We affirm.

Defendant contends that the trial court erred in submitting to the jury the issue whether plaintiff sustained a permanent injury, as alleged in her complaint, and in instructing the jury on plaintiff's life expectancy, after taking judicial notice of the Standard Mortality Tables.


In support of that contention defendant says that those instructions and the submission of those issues to the jury constituted error because there was no evidence from which the jury could properly find that plaintiff's injuries were permanent; that in this case the evidence established that plaintiff's condition, involving an injury to her knee, "is curable by routine surgery"; that all injured persons have a duty to mitigate damages by submitting to surgery "where the risk is small and a favorable result reasonably probable"; and that this "precludes any instruction on permanency."

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It is [. . .]well established that the plaintiff in a personal injury case cannot claim damages for what would otherwise be a permanent injury if the permanency of the injury could have been avoided by submitting to treatment by a physician, including possible surgery, when a reasonable person would do so under the same circumstances.

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In this case defendant did not request an instruction on mitigation of damages, with the result that this question was not submitted to the jury. Nevertheless, if the facts are such that the court must hold, as a matter of law, that the plaintiff failed to mitigate her damages by submission to surgery when a reasonable person would have done so, the plaintiff would not be entitled to claim damages for what might otherwise be a permanent injury. It would also follow, in such an event, that defendant would be correct in contending that it was error to submit the issue of permanent injury to the jury, including consideration of the mortality tables.

This result would not follow, however, unless the evidence in this case is clear and conclusive to the effect that a reasonable person under the same circumstances would have submitted to surgery. Otherwise, plaintiff would be entitled to have the jury decide both the question whether plaintiff's injury is a permanent injury and also the question whether, under the circumstances, a reasonable person would have submitted to surgery. If, in such an event, the jury found that plaintiff did not unreasonably fail or refuse to submit to surgery and if there was evidence that plaintiff's injury would otherwise be permanent, the jury could then properly award damages for permanent injury and its verdict in this case must be affirmed.

In general, as previously stated, the test to be applied in determining whether a plaintiff has unreasonably failed or refused to mitigate his damages by submitting to a surgical operation is whether, under the circumstances of the particular case, an ordinarily prudent person would do so, i.e., the duty to exercise reasonable care under the circumstances. [. . .] Conversely, if under the circumstances, a reasonable person might well decline to undergo a surgical operation, a failure to do so imposes no disability against recovering full damages. [. . .]

The factors to be considered for this purpose ordinarily include the risk involved (i.e., the hazardous nature of the operation), the probability of success, and the expenditure of money or effort required. [. . .] Some courts also consider the pain involved as a factor, but no such question is presented for decision in this case. [. . .]

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[I]t has been held that there must be evidence relating to the extent of the risk involved in a particular type of surgical operation before a jury may properly consider the contention that a plaintiff acted unreasonably in declining to submit to a surgical operation.

[. . . There is no] evidence that plaintiff had been advised by any doctor that she should submit to a surgical operation on her knee and that she then failed or refused to do so. Indeed, both plaintiff's and defendant's doctors agreed that surgery was not indicated at the time of their examination. [. . .]

No case has been cited to us in which it has been held that a plaintiff with a torn cartilage in the knee must submit to surgery to remove the damaged cartilage or be barred, as a matter of law, from seeking damages for an otherwise permanent injury, at least in the absence of such evidence.

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We hold [. . .] that under the facts and circumstances of this case the evidence supporting defendant's contention that plaintiff was required to submit to surgery upon her knee and the related contention that, for failure to do so, she is barred from claiming damages for a permanent injury to her knee, were not so clear and conclusive as to make it proper for the court to decide those questions in this case as a matter of law. This is not to say, of course, that defendant was not entitled to offer evidence of these questions and have them submitted to the jury under appropriate instructions.

After examining the record in this case we also hold that testimony was offered by plaintiff from which, if believed by the jury, it could properly find that plaintiff has suffered a permanent injury, and one which interferes with her normal and usual activities, including those relating to her work as a substitute teacher. It follows that the trial court did not err in submitting that issue to the jury or in instructing it on life expectancy tables. The verdict of the jury was supported by substantial evidence and the judgment of the trial court is affirmed.