The jury may take into consideration the conduct of a plaintiff in determining damages.
A car driven by Plaintiff-Appellant Connie Miller collided with a car driven by defendant-appellee Harold Eichhorn when he was backing his car from his driveway into the street. Plaintiff is suing for the injuries she sustained in the accident. Connie’s husband, Keith Miller, also sued to recover damages for loss of consortium. The jury found Connie to be 15 percent negligent and Eichhorn to be 85 percent negligent, awarding over $3,500 in damages. Connie appealed because the damages were insufficient and that the trial court erred by submitting a jury instruction on mitigation of damages. This is because her failure to mitigate damages is not the same thing as fault.
In a jurisdiction where comparative fault includes a failure to mitigate damages, can the jury examine the plaintiff’s conduct in determining those damages?
The Court affirmed the judgement of the lower court. Her chiropractor testified if Connie had sought medical treatment, she could have alleviated some of her pain and shows she did not use due care in following her doctor’s advice.