McDonnell v. Chally, 93-1296

• Decision Date: 14 December 1994
• Docket Number: No. 93-1296,93-1296
• Citation: 529 N.W.2d 611
• Parties: Julianne McDONNELL, Appellant, v. Teresa L. CHALLY and Todd D. Chally, Appellees.
• Court: Iowa Court of Appeals

Page 611

529 N.W.2d 611

Julianne McDONNELL, Appellant, v. Teresa L. CHALLY and Todd D. Chally, Appellees.

No. 93-1296.

Court of Appeals of Iowa.

Dec. 14, 1994.

Linda Hansen Robbins of Irvine & Robbins, Cedar Rapids, for appellant.

James P. Craig and Paul D. Gamez of Moyer & Bergman, Cedar Rapids, for appellee.

Heard by DONIELSON, C.J., and HAYDEN and CADY, JJ.

DONIELSON, Chief Judge.

Julianne (Julie) McDonell appeals from the trial court's denial of her request for a new trial. She asserts the trial court erred in instructing the jury regarding her duty to mitigate damages. She also asserts the jury's award of damages was inadequate. We have reviewed the parties' arguments and applicable law and affirm the trial court's rulings.

Julie suffered neck and back injuries after the car in which she was a passenger was rear-ended by a vehicle driven by defendant Teresa Chally. At trial the jury concluded the driver of the vehicle in which Julie was a passenger was 30% at fault, Chally was 30% at fault and Julie was 40% at fault due to her failure to mitigate her damages. An instruction had been submitted to the jury by which it could find Julie had failed to mitigate her damages by failing to attempt to lose weight and/or by failing to perform physical therapy as ordered by her doctor.

I. MITIGATION OF DAMAGES

Julie argues it was reversible error for the trial court to instruct the jury it could find her at fault if she failed to follow her doctor's recommendations by failing to attempt to lose weight or by failing to perform physical therapy. She contends the evidence did not support giving the mitigation instruction and the instructions given were confusing and did not correctly state the law.

The unreasonable failure to mitigate damages constitutes fault under the Iowa Comparative Fault Act. Miller v. Eichhorn, 426 N.W.2d 641, 643 (Iowa App.1988). The Iowa Supreme Court has held the "unreasonable failure to attempt to lose weight pursuant to medical advice can be assessed as fault if weight loss will mitigate damages." Tanberg v. Ackerman Investment Co., 473 N.W.2d 193, 196 (Iowa 1991). Before a mitigation instruction on weight loss may be given, "the defendant has the burden of showing substantial evidence that plaintiff's weight loss would have mitigated his damages and that requiring plaintiff to lose weight was reasonable under the circumstances." Id.

The evidence at trial reveals Julie had a life-long weight problem. Prior to the September 9, 1989, automobile accident, she had joined a weight loss program in May of 1989 and had reduced her weight from 269 pounds to 223 pounds. After the accident she continued to attempt to exercise and lose weight. Julie first saw neurologist Dr. Neiman on April 12, 1991, and at that time she had reduced her weight to 195 pounds.

Dr. Neiman diagnosed Julie as suffering from a soft tissue injury to the cervical and lumbar sacral spine. He recommended she continue to lose weight and participate in physical therapy which would involve a soft tissue manipulative program.

When Julie saw Dr. Neiman again in October 1991, her weight had increased to 222 pounds. At that time Dr. Neiman indicated weight reduction continued to be an ongoing necessity. In correspondence to Julie's family physician, Dr. Neiman stated he did not "think there is any question that weight reduction will significantly improve the discomfort of the lower back and is strongly advised." Dr. Neiman testified he was aware of no medical reason why Julie could not lose weight, and it was his opinion the failure to lose weight could delay or prevent the healing of the problems Julie had with her lower back.

Dr. Neiman found Julie's attendance at physical therapy sessions had been "somewhat erratic." During the period between her first and second appointments with Dr. Neiman Julie had attended only 9 of the 28 physical therapy sessions he had expected her to attend. Dr. Neiman testified this poor compliance lessened the effectiveness of his treatment plan.

When the question is whether the trial court erred in giving a requested instruction, our review is limited to the correction of legal errors. See Sanders v. Ghrist, 421 N.W.2d 520, 521 (Iowa 1988). We have reviewed instructions # 13, # 25, and # 26 and find no error in this case. The defendants met their burden of showing substantial evidence weight loss would have mitigated Julie's damages and that requiring her to lose weight was reasonable under the circumstances. Under Tanberg the trial court was bound to submit this theory of mitigation of damages to the jury, and its instructions were consistent with the Tanberg holding. Similarly, there was medical evidence regarding the fact physical therapy would have mitigated Julie's injuries had she regularly attended the sessions as ordered by Dr. Neiman. The failure to adhere to a doctor's recommendation for additional treatment can be assessed as fault. See Miller, 426 N.W.2d at 643.

Julie attempts to distinguish Tanberg by arguing her "main problem" was not obesity as it had been for the plaintiff in Tanberg. Whether her weight was her primary health problem is not controlling. In determining if the jury should have been instructed on the issue of mitigation, the question was whether weight loss would have reduced the injuries Julie suffered in the accident. The evidence established weight loss would have reduced the lower back pain she was...