Zimmerman v. Ausland

266 Or. 427, 513 P.2d 1167

 

RULE:

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.

FACTS:

Parties got into an automobile accident, for which defendant claimed responsibility. The trial court awarded damages to plaintiff for her permanent injuries. However, some of the injuries for which the court awarded damages were for injuries which the plaintiff could have mitigated had she gone to a doctor. Defendant appealed the award of such damages, on the grounds that plaintiff could have avoided them by merely going to a doctor for treatment.

ISSUE:

Whether the trial court erred in allowing the jury to decide whether or not plaintiff had sustained permanent injuries.

ANSWER:

No, the trial court did not err in allowing the jury to decide whether or not plaintiff had sustained permanent injuries.

CONCLUSION:

The court affirmed the verdict, and held that defendant failed to meet its burden in showing that plaintiff failed to mitigate her injuries. Defendant did not offer any evidence that plaintiff unreasonably failed or refused to submit to a surgical operation that may have alleviated the injury. Thus, the court determined that, as a matter of law, it could not support defendant's contention that plaintiff was required to submit to surgery and the related contention that, for failure to do so, she was barred from claiming damages for a permanent injury.

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