Preston v. Keith, 13919

• Citation: 584 A.2d 439,217 Conn. 12
• Decision Date: 01 January 1991
• Docket Number: No. 13919,13919
• Court: Supreme Court of Connecticut
• Parties: Rebecca PRESTON et al. v. Anthony J. KEITH et al.

Page 439

584 A.2d 439

217 Conn. 12

Rebecca PRESTON et al. v. Anthony J. KEITH et al.

No. 13919.

Supreme Court of Connecticut.

Argued Nov. 2, 1990.

Decided Jan. 1, 1991.

William J. Melley, III, Hartford, for appellants (defendants).

Terence S. Hawkins, New Haven, for appellees (plaintiffs).

Before SHEA, CALLAHAN, GLASS, HULL and BORDEN, JJ.

CALLAHAN, Justice.

The issue presented in this appeal is whether the trial court properly instructed the jury on the doctrine of mitigation of damages. The named plaintiff, Rebecca Preston, brought this action to recover for personal injuries arising from an automobile accident allegedly caused by the negligence of the named defendant, Anthony J. Keith. ¹ Finding that the plaintiff was 50 percent contributorily negligent, the jury returned a verdict for her in the amount of $5593.50. The plaintiff thereafter filed a motion for additur and a motion to set aside the verdict and for a new trial. The trial court denied both of these motions.

The plaintiff appealed to the Appellate Court, claiming that: (1) the trial court should not have given the jury an instruction on the issue of mitigation of damages because the evidence did not support such an instruction; and (2) if the evidence did support giving such an instruction, the instruction given by the trial court on that issue was defective. The Appellate Court rejected the plaintiff's first claim of error, but set aside the judgment as to the amount of damages and ordered a new trial on that issue because it concluded that the trial court's charge on mitigation of damages was improper in two respects: (1) the court gave only a general charge on the plaintiff's duty to mitigate damages that did not instruct the jury that the plaintiff's failure to mitigate must be found to have been the proximate cause of a specific portion of her injuries or of the aggravation of her injuries; and (2) the court did not instruct the jury that the defendant bears the burden of proof on the issue of mitigation of damages. ² Preston v. Keith, 20 Conn.App. 656, 570 A.2d 214 (1990).

We granted the defendant's petition for certification to appeal, limited to the following two-part question: "In a negligence action in which the evidence raises an issue about the plaintiff's conduct with respect to the duty to mitigate damages: (1) What instructions should the jury receive about the relationship between mitigation of damages and proximate cause? (2) What is the appropriate allocation of the burden of proof on the issue of mitigation of damages?" Preston v. Keith, 214 Conn. 807, 573 A.2d 320 (1990). We reverse the decision of the Appellate Court on the first part of the question, and affirm its decision on the second part.

The following facts are relevant to this certified appeal. The plaintiff was working as a bus driver on May 15, 1985, when the accident that gave rise to this action occurred. On that date, the plaintiff reinjured her lower back, which she had sprained previously in an unrelated accident, when the school bus that she was driving was involved in a collision with the defendant's car. The plaintiff's physical therapy program for her back injury included exercises recommended by her therapist. The Appellate Court found that the record "reflects that the jury had before it abundant evidence from which it could have concluded that the plaintiff did not fully follow her therapist's directions." Preston v. Keith, supra, 20 Conn.App. at 659, 570 A.2d 214. ³ The trial court instructed the jury on the issue of mitigation of damages, but its charge did not discuss the relationship between proximate cause and mitigation of damages, nor did it state which party bears the burden of proof on this issue. ⁴

I

We have long adhered to the rule that "one who has been injured by the negligence of another must use reasonable care to promote recovery and prevent any aggravation or increase of the injuries." Morro v. Brockett, 109 Conn. 87, 92, 145 A. 659 (1929); Sette v. Dakis, 133 Conn. 55, 60, 48 A.2d 271 (1946); Lange v. Hoyt, 114 Conn. 590, 595, 159 A. 575 (1932). It is also settled law that when, as in this case, there "are facts in evidence which indicate that a plaintiff may have failed to promote [her] recovery and do what a reasonably prudent person would be expected to do under the same circumstances, the court, when requested to do so, is obliged to charge on the duty to mitigate damages." Jancura v. Szwed, 176 Conn. 285, 288, 407 A.2d 961 (1978).

In Morro v. Brockett, supra, this court discussed the relationship between mitigation of damages and proximate cause. "The burden is on the plaintiff to establish that the injuries for which he seeks damages were the proximate result of the negligence of the defendant, but when a prima facie case had been made out, as in this instance, it becomes incumbent upon the defendant if he seeks to exonerate himself from responsibility for a portion of the consequences to show that some of these had their proximate cause in the failure of the plaintiff to act in good faith in an attempt to promote recovery and avoid aggravation of the initial injury." Id., 109 Conn. at 93-94, 145 A. 659. Morro established that the theoretical foundation for the plaintiff's duty to mitigate damages ⁵ is that the defendant's negligence is not the proximate, or legal, cause of any damages that could have been avoided had the plaintiff taken reasonable steps to promote recovery and avoid aggravating the original injury. Morro did not address, however, whether a jury must be instructed specifically on the relationship between mitigation of damages and proximate cause in a case where the evidence is sufficient to warrant a charge on mitigation, and it is to that question that we now turn.

"[T]he test of a court's charge 'is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.' Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 240, 520 A.2d 1008 (1987); Borsoi v. Sparico, 141 Conn. 366, 371, 106 A.2d 170 (1954)." Holbrook v. Casazza, 204 Conn. 336, 351-52, 528 A.2d 774 (1987), cert. denied, 484 U.S. 1006, 108 S.Ct. 699, 98 L.Ed.2d 651 (1988). "Jury instructions need 'not be exhaustive, perfect or technically accurate,' so long as they are 'correct in law, adapted to the issues and sufficient for the guidance of the jury.' Castaldo v. D'Eramo, 140 Conn. 88, 94, 98 A.2d 664 (1953)...." State v. Mason, 186 Conn. 574, 585, 442 A.2d 1335 (1982). Applying these standards to the trial court's instruction on mitigation of damages, we conclude that the court's charge was proper.

Our conclusion is supported by those authorities that have recognized that instructing a jury on the relationship between mitigation of damages and proximate cause could promote needless confusion. See Beatty v. Davis, 224 Neb. 663, 669, 400 N.W.2d 850 (1987), citing J. Stein, Damages and Recovery: Personal Injury and Death Actions (1972) § 126, p. 220; see also 22 Am.Jur.2d, Damages § 496. "The assertion that the negligence or other tort of the defendant is not the 'proximate' cause of the damages which could have been avoided can be accepted as theoretically valid since proximate cause really means that cause which is recognized by the law as the cause of the damages. Stated in such terms, the concept has the doubtful virtue of imprecision. If a jury is instructed, for example, that if the defendant's negligent activity caused the plaintiff's broken leg and caused some pain; but that much of the pain could have been avoided had the plaintiff consulted a doctor; and that the jury must compensate the plaintiff for that pain which, in natural and continuous sequence, unbroken by any efficient intervening cause, flowed from the act of the defendant; it is reasonable to assume that the jury is going to be confused. It is much more precise and clear to state that the plaintiff could have avoided some of the pain by going to a doctor and that, as a matter of policy, he cannot recover for the pain which could have been avoided." J. Stein, supra, § 126, p. 220.

Our conclusion that a jury need not specifically be instructed on the relationship between proximate cause and mitigation of damages does not, as the plaintiff suggests, mean that we are overruling Morro v. Brockett, supra, ⁶ or that we are discarding settled principles of the doctrine of mitigation. Nor do we hold that it would be error to instruct the jury on the relationship between proximate cause and mitigation of damages, where this instruction is stated in terms that would not confuse a reasonable juror. It is axiomatic that a charge on mitigation of damages must provide some indication to a jury that it should apply this doctrine only if a plaintiff's alleged failure to mitigate is found to have caused the aggravation of the injury. We conclude that the trial court's instruction in this case that "you should reduce any award you might give her to such a sum as you think measures the amounts which her damages have been increased by her failure ... to mitigate damages" sufficiently conveyed this notion of causation.

II

A second reason relied upon by the Appellate Court in determining that the trial court's charge was defective was that the charge did not include any discussion of the burden of proof on the issue of mitigation of damages. ⁷ Preston v. Keith, supra, 20 Conn.App. at 663, 570 A.2d 214. The Appellate Court concluded that in a negligence case the defendant bears the burden of proof, i.e., the burden of persuasion, on the issue of mitigation of damages and that the jury should have been so instructed. Id., at 663-64, 570 A.2d 214. The defendant argues that a defendant in a negligence action bears the burden of production but not the burden of persuasion on mitigation. ⁸ We affirm ...