Francis ex rel. Goodridge v. Dahl, No. 03CA0785.

• Decision Date: 13 January 2005
• Docket Number: No. 03CA0785.
• Citation: 107 P.3d 1171
• Parties: Nyree Ivy Majelia FRANCIS, through her mother and next friend, Marcia GOODRIDGE, Plaintiff-Appellant, v. Cory Lyn DAHL, Defendant-Appellee.
• Court: Colorado Court of Appeals

107 P.3d 1171

Nyree Ivy Majelia FRANCIS, through her mother and next friend, Marcia GOODRIDGE, Plaintiff-Appellant, v. Cory Lyn DAHL, Defendant-Appellee.

No. 03CA0785.

Colorado Court of Appeals, Div. II.

January 13, 2005.

Lloyd C. Kordick & Associates, Lloyd C. Kordick, Colorado Springs, Colorado, for Plaintiff-Appellant

Harris, Karstaedt, Jamison & Powers, PC, A. Peter Gregory, Rebecca K. Wagner, Englewood, Colorado, for Defendant-Appellee

LOEB, J.

Plaintiff, Nyree Ivy Magelia Francis, through her mother and next friend Marcia Goodridge, appeals from the judgment entered on the jury's verdict finding in her favor and awarding damages of $20,000 on her negligence claim against defendant, Corey Lyn Dahl. We affirm in part, reverse in part, and remand for further proceedings.

On September 23, 2000, plaintiff was injured in an automobile accident involving a vehicle driven by defendant. At the time of the accident, plaintiff was ten years old. The jury found that defendant was negligent and that plaintiff had suffered injuries as a result of that negligence. The jury awarded plaintiff $16,000 in damages for noneconomic injuries and $4,000 for physical impairment or disfigurement.

On appeal, plaintiff requests a new trial on damages. Plaintiff also challenges the trial court's calculation of interest on the amount of the judgment.

I.

Plaintiff first contends the trial court erred as a matter of law when it instructed the jury on her alleged failure to mitigate her damages. We agree.

Over plaintiff's objection, the trial court gave the following jury instruction on mitigation of damages:

If you find that the plaintiff, Nyree Ivy Majelia Francis has had actual damages, then you must consider whether the defendant, Corey Lyn Dahl, has proved her affirmative defense of plaintiff's failure to mitigate or minimize damages. The plaintiff has the duty to take reasonable steps under the circumstances to mitigate or minimize her damages. Damages, if any, caused by plaintiff's failure to take such reasonable steps cannot be awarded to the plaintiff.

This affirmative defense is proved if you find both of the following have been proven by a preponderance of the evidence:

1. The plaintiff failed to seek medical or chiropractic treatment for the injuries she sustained in this accident;

2. The plaintiff had some increased injuries because she did not take the reasonable steps to obtain medical or chiropractic treatment.

If you find that one or more of these propositions has not been proved by a preponderance of the evidence, then you shall make no deduction from plaintiff's damages.

On the other hand, if you find that both of these propositions have been proved by a preponderance of the evidence, then you must determine the amount of damages caused by the plaintiff's failure to take such reasonable steps. This amount must not be included in your award of damages.

Plaintiff argues that, as a minor, she has no financial resources, is completely dependent upon her mother and thus, as a matter of law, could not reasonably have mitigated her damages by seeking medical or chiropractic care on her own. Defendant contends that the instruction was proper and that the issue of mitigation was for the jury to decide. We agree with plaintiff that, under the circumstances here, the trial court erred in giving a mitigation instruction to the jury and that a new trial on damages is required.

Failure to mitigate damages refers to the injured party's failure to take such steps as are reasonable under the circumstances to minimize the resulting damages. However, a plaintiff is not required to take unreasonable measures in an effort to mitigate his or her damages. Burt v. Beautiful Savior Lutheran Church, 809 P.2d 1064, 1068 (Colo.App.1990). Moreover, a plaintiff's failure to mitigate damages is excused if there were reasonable grounds for the failure, including financial inability of the plaintiff. See Burt v. Beautiful Savior Lutheran Church, supra; Berger v. Sec. Pac. Info. Sys., Inc., 795 P.2d 1380, 1385 (Colo.App.1990)

; C. McCormick, Law of Damages § 38 (1935).

Colorado has long refused to sustain the doctrine that the contributory or comparative negligence of the parents of a child of tender years shall be imputed to the child. Denver City Tramway Co. v. Brown, 57 Colo. 484, 493, 143 P. 364, 368 (1914); cf. Cintron v. City of Colo. Springs, 886 P.2d 291, 295 (Colo.App.1994)

(even though a parent may voluntarily undertake to aid the assertion of the child's claim by acting as a next friend, the minor will not, generally, be charged with the parents' negligence); Kennedy v. Pelster, 813 P.2d 845, 847 (Colo.App.1991)(the discovery sins of a parent should not be visited upon the head of the child).

Further, courts in other states have expanded the principle precluding imputation of a parent's negligence to the concept of mitigation of damages. For example, in Cardona v. County of Albany, 188 Misc.2d 440, 447-48, 728 N.Y.S.2d 355, 362 (Sup.Ct.2001), the court stated as follows:

The Court is of the view that the infant plaintiffs, being non sui juris, were, as a matter of law, unable to mitigate their damages. To the extent that the affirmative defense relies upon their mother's failure to mitigate, the Court finds that the defense is, in reality, an attempt to impute [mother's] contributory negligence (in the form of her failure to take adequate protective measures to shield her children from lead paint exposure) to the infant plaintiffs.

On that basis, the Cardona court dismissed the defendant's affirmative defense of mitigation of damages.

These principles have also been persuasively applied where, as here, defendants have claimed that a minor plaintiff did not mitigate his or her damages because of a failure to seek medical treatment. In Favier v. Winick, 151 Misc.2d 910, 583 N.Y.S.2d 907 (Sup.Ct.1992), the court held that a parent's decision not to submit an eleven year-old child to remedial medical treatment or surgery and concomitant failure to mitigate damages cannot be attributed to the child and, therefore, cannot be presented to the jury. In so holding, the court concluded that

a child of the age of eleven is necessarily dependent upon his parents as regards the steps to be taken to bring about a recovery from an injury, that a neglect of proper surgical treatment by the parent cannot be imputed to the child and that no part of the infant plaintiff's damages may be reduced upon the conduct of the parents.

Favier v. Winick, supra, 151 Misc.2d at 912, 583 N.Y.S.2d at 909; see also Lange v. Hoyt, 114 Conn. 590, 159 A. 575, 577-78 (1932) (recognizing that an eight year-old child is dependent upon her parents regarding steps to be taken to bring about recovery from an injury and concluding that, even if the mother had neglected to obtain proper surgical treatment for the child, her negligence would not be imputable to the child); Galvin v. Cosico, 90 A.D.2d 656, 456 N.Y.S.2d 259 (1982)(alleged negligence of mother in not immediately transporting her injured child to the hospital could not be ascribed to the child). We find the reasoning in these cases persuasive and applicable to the circumstances here.

The mitigation instruction here was specifically directed to whether plaintiff, a ten year-old child, failed to "seek medical or chiropractic treatment" for injuries sustained in the accident with defendant. However, we conclude that a ten year-old child cannot, as a matter of law, reasonably be expected to handle the challenges and intricacies of choosing, arranging, and paying for appropriate medical care, let alone deal with the complexities of insurance coverage issues related to such care. Nor do we perceive how a jury could examine the conduct of a ten year-old child in the context of mitigating her own damages by way of seeking medical and chiropractic care without erroneously imputing her mother's conduct to the child.

Notwithstanding the language of the instruction, defendant's argument and evidence at trial were that plaintiff's mother had failed to arrange for proper medical care for plaintiff. The mitigation instruction improperly directed the jury to deduct from its damage award any amount it determined to be caused by plaintiff's failure to mitigate, but the instructions did not require the jury to specify the amount of any such deduction. Thus, we have no basis for determining to what extent the final award of damages was predicated upon the jury's finding of a failure to mitigate, and, therefore, prejudice must be presumed. See Loup-Miller v. Brauer & Assocs. Rocky Mtn., Inc., 40 Colo.App. 67, 69, 572 P.2d 845, 847 (1977)

.

Accordingly, we conclude that allowing the jury effectively to impute to plaintiff her mother's failure to mitigate was reversible error, requiring a new trial on damages. See Denver City Tramway Co. v. Brown, supra; Cardona v. County of Albany, supra; Favier v. Winick, supra.

We reject defendant's argument, based on Benallo v. Bare, 162 Colo. 22, 427 P.2d 323 (1967), that, because plaintiff was over the age of seven, the reasonableness of her conduct was automatically subject to evaluation by the jury. Benallo held that a child six years old or younger is always incapable of being contributorily negligent. Unlike the case here, however, Benallo did not involve an alleged failure to seek medical care as the basis for a mitigation instruction, nor did it involve what was, in effect, an attempt to impute a parent's alleged negligence to a plaintiff child over the age of six but under the legal age of majority. Further, we do not read the holding in Benallo to mandate that a mitigation instruction must always be given when the plaintiff is at least seven years old. While we recognize that there may be cases where it is appropriate for a jury to assess the reasonableness of the conduct of a child over the age of six with respect to mitigation of damages, this is not such a case.

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