New Trial on Damages Required When Failure to Mitigate Instruction Given in Truck Accident Case Without Evidence of Causation Between Failure and Damages Sustained by Plaintiff

The Indiana Court of Appeals recently found a trial court erred when it instructed a jury on the plaintiff’s alleged failure to mitigate damages in an Indiana truck accident case. In Humphrey v. Tuck, the plaintiff filed a lawsuit against a truck driver and a trucking company arising from a trucking collision in which the trailer of the tractor-trailer being driven by the truck driver struck the plaintiff’s vehicle while the plaintiff was driving on the highway. As a result of the impact, the plaintiff hit his head on something inside his car and his windshield cracked. The following day the plaintiff experienced problems with his left eye and removed a sliver of glass from his eye.

The plaintiff thereafter sought and received medical treatment from numerous providers, including an ophthalmologist, optometrist, neurosurgeon, and endocrinologist. During his treatment, an MRI revealed a pre-existing tumor on the plaintiff’s pituitary gland, which was secreting prolactin and causing high prolactin levels. The plaintiff’s neurosurgeon opined that the plaintiff had pituitary apoplexy, which he described as an abrupt sudden event that occurs spontaneously in many cases of large pituitary tumors but which can be associated with trauma. After the plaintiff’s neurosurgeon removed the tumor, the plaintiff’s endocrinologist prescribed a medication, bromocriptine, to help lower his prolactin level. While the plaintiff did not always take the medication as prescribed because he could not afford it and it made him ill, he did take it consistently for a period of at least six months, and as a result, his prolactin levels decreased significantly. His endocrinologist eventually advised him to stop taking the medication altogether. The plaintiff’s optometrist also prescribed eyeglasses, but the plaintiff never got them.

The trucking company argued at trial that the plaintiff failed to mitigate his damages because he did not take the bromocriptine as prescribed and did not get the eyeglasses as prescribed. Failure to mitigate damages is an affirmative defense that can reduce the amount of a plaintiff’s damages when the plaintiff’s conduct aggravates or increases the plaintiff’s injuries. In order to prove a failure to mitigate damages, a defendant must prove (1) the plaintiff failed to exercise reasonable care to mitigate his post-injury damages, and (2) the plaintiff’s failure to exercise reasonable care caused the plaintiff to suffer an identifiable item of harm not attributable to the defendant’s negligent conduct. A defendant’s burden of proof includes proof of causation, namely, that the plaintiff’s unreasonable post-injury conduct increased the plaintiff’s harm, and if so, by how much.

The trial court instructed the jury on the plaintiff’s alleged failure to mitigate damages, over the plaintiff’s objection. The jury thereafter returned a general verdict in favor of the plaintiff, but only in the amount of $40,000.00. The plaintiff appealed arguing the trial court erred in giving the instruction. When appellate courts review trial court decisions to give or refrain from giving jury instructions, appellate courts consider whether the instruction correctly states the law, whether the evidence supports giving the instruction, and whether the substance of the instruction is covered by other instructions. Here, the plaintiff argued that the trial court erred by giving the failure to mitigate instruction because the trucking company had failed to present sufficient evidence showing that any failure to mitigate damages caused the plaintiff to suffer an identifiable item of harm not attributable to the trucking company’s negligent conduct and failed to prove how much harm or what specific item of harm was caused as a result of the failure to mitigate.

The Court of Appeals agreed with the plaintiff and reversed and remanded the case for a new trial. In reviewing the record and the parties’ arguments, the Court of Appeals found no evidence that the plaintiff’s failure to take his medication exactly as prescribed caused a continuance of his symptoms, exacerbated his symptoms in any way, or otherwise increased his harm, and if so, by how much. The Court also found that the trucking company failed to prove that the plaintiff’s failure to get eyeglasses caused the plaintiff any discrete harm. Since an erroneous jury instruction merits reversal if it could have formed the basis of a jury’s verdict, and because the jury award in this case was a general verdict, the court reversed and remanded for a new trial on damages only.

You can read the full opinion here.