Cox v. Keg Rests. U.S. - 86 Wash. App. 239, 935 P.2d 1377 (1997)

Rule:

An injured party generally may not recover damages proximately caused by that person's unreasonable failure to mitigate. Wash. Rev. Code § 4.22.015. Expert testimony is required in cases where a determination of causation turns on obscure medical factors. Submitting the issue to the jury without such testimony is improper because the jury is thus invited to reach a result based on speculation and conjecture. The issue should also not be submitted if the evidence shows that a proposed treatment might not be successful or if there is conflicting testimony as to the probability of a cure, because it is not unreasonable for a plaintiff to refuse treatment that offers only a possibility of relief. The party asserting an unreasonable failure to mitigate bears the burden of proof.

Facts:

After the patron was served 10 drinks in 2 1/2 hours by the bar, he assaulted the injured party and inflicted permanent brain damage. The injured party brought suit against the defendants, the patron and the bar, introducing evidence of the patron’s blood alcohol content. The jury returned a verdict for the injured party, finding the injured party two percent at fault for failing to mitigate but not otherwise at fault, and assigning the remaining fault roughly equally between the patron and the bar. The bar appealed the finding of joint liability, and challenged the court’s admission of blood alcohol content. The injured party cross-appealed, arguing that there was insufficient evidence for the jury to find failure to mitigate.

Issue:

1) Did the trial court err in finding joint liability between the bar and the patron, and in admitting the blood alcohol content as evidence? 

2) Was there insufficient evidence for the jury to find failure to mitigate on the part of the injured party? 

Answer:

1) No. 2) Yes.

Conclusion:

On appeal, the court remanded the case for reapportionment to the bar and the patron of 100 percent of fault because the evidence was insufficient for the jury to find a failure to mitigate. The court reasoned that none of the evidence cited by the bar amounted to substantial evidence of an unreasonable failure to mitigate. Because the injured party was not at fault, the bar and the patron were jointly and severally liable for 100 percent of the injured party's damages pursuant to Wash. Rev. Code § 4.22.070. The court also found that the trial court did not err in admitting expert testimony of the patron's blood alcohol content because it was relevant to enhance the credibility of other witnesses who testified to their observations of the patron's apparent intoxication. The jury instructions given by the trial court were also not erroneous.