Sutton v. Shufelberger

• Decision Date: 19 April 1982
• Docket Number: No. 8766-5-I,8766-5-I
• Citation: 31 Wn.App. 579,643 P.2d 920
• Court: Washington Court of Appeals
• Parties: Thomas C. SUTTON, Respondent, v. Keith E. SHUFELBERGER and Jane Doe Shufelberger, his wife, individually and their marital community, and V & J Refrigerated Service, Inc., a Washington corporation, Appellants.

Page 579

31 Wn.App. 579

643 P.2d 920

Thomas C. SUTTON, Respondent, v. Keith E. SHUFELBERGER and Jane Doe Shufelberger, his wife individually and their marital community, and V &amp J Refrigerated Service, Inc., a Washington corporation, Appellants.

No. 8766-5-I.

Court of Appeals of Washington, Division 1.

April 19, 1982.

Reed, McClure, Moceri & Thonn, P.S., Kathy A. Cochran, Seattle, for appellants.

Emmet T. Walsh, Thomas Keefe, Seattle, for respondent.

CALLOW, Judge.

Defendants Shufelbergers and V & J Refrigerated Services, Inc. appeal a judgment for plaintiff Thomas C. Sutton in the amount of $125,000.

The plaintiff, a Seattle police officer who was assigned to the motorcycle traffic division, was injured after he pulled over a vehicle on First Avenue South in Seattle, Washington. The plaintiff testified that he parked his motorcycle behind the stopped vehicle and was in the process of dismounting when his motorcycle was struck by a truck driven by Shufelberger. Following a jury trial, a verdict was returned in favor of the plaintiff.

The defendants raise the following issues:

1. Did the trial court err in refusing to give the defendants' proposed instruction concerning the duty to mitigate damages?

2. Did the trial court abuse its discretion in not permitting evidence as to the benefits the plaintiff received from collateral sources for the limited purpose of showing his motivation in not returning to work?

3. Did the trial court err in refusing to give the defendants' proposed instruction concerning aggravation of a preexisting injury, and in giving the instruction concerning a previous infirm condition?

4. Did the trial court abuse its discretion in not admitting the deposition testimony of Dr. Keith Peterson who failed or refused to respond to a subpoena?

5. Was the instruction concerning the duty of a police officer while engaged in the performance of his duties error because it was a comment on the evidence, confusing and misleading?

6. Should the "professional rescuer" or "fireman's rule" which precludes recovery by public servants who engage in hazardous work be applied to preclude the plaintiff from recovering as a matter of law?

7. Should the plaintiff-respondent be awarded terms and compensatory damages because the appeal is frivolous?

1. Mitigation Instruction

The trial court refused to give the defendants' proposed instruction which stated:

In determining whether plaintiff has suffered a loss of wages or a loss of earning capacity, you are to consider that every person has the duty to mitigate damages. A loss of wages is not recoverable to the extent that the plaintiff failed to obtain available alternative employment by earning whatever he could at another occupation. Damages caused by a failure to seek or undertake such employment cannot be recovered.

The defendants contend that because there was evidence that the plaintiff was capable of returning to work, it was error to refuse to give this instruction. We disagree.

It is not error to refuse a proposed instruction which is incorrect in any respect. Hinzman v. Palmanteer, 81 Wash.2d 327, 501 P.2d 1228 (1972). The proposed instruction concerning mitigation was incorrect in two respects. First, the duty to mitigate damages is not absolute. As was stated in Kubista v. Romaine, 87 Wash.2d 62, 67, 549 P.2d 491 (1976):

Ordinarily to recover for lost wages, a plaintiff must establish inter alia his loss of wages was caused by his injuries. However, the loss of wages so established is not recoverable to the extent plaintiff reasonably failed to mitigate his damages by earning whatever he could at another occupation.

(Italics ours. Citations omitted.) In Young v. Whidbey Island Bd. of Realtors, 96 Wash.2d 729, 732, 638 P.2d 1235 (1982), the court stated The rule ... is that where one person has committed a tort, ... or other legal wrong against another, it is incumbent upon the latter to use such means as are reasonable under the circumstances to avoid or minimize the damages. The person wronged cannot recover for any item of damage which could thus have been avoided.

Accord Tennant v. Lawton, 26 Wash.App. 701, 703, 615 P.2d 1305 (1980).

Here, the proposed instruction imposes an absolute duty to mitigate damages. See WPI 33.01, Comment; Restatement (Second) of Torts § 918(1) (1979). The instruction incorrectly stated the law and was properly refused.

Further, the party alleging that the damages should have been mitigated has the burden of proof. Young v. Whidbey Island Bd. of Realtors, supra; Kubista v. Romaine, supra; Burr v. Clark, 30 Wash.2d 149, 190 P.2d 769 (1948). Defendants' proposed instruction was also incorrect because it did not allocate the burden of proof.

We note that WPI 33.01 provides an instruction concerning mitigation:

One who sustains an injury for which another is liable is not entitled to recover any damages arising after the original (injury) (occurrence) which are proximately caused by failure of the injured person to exercise ordinary care to avoid or minimize such new or increased damage.

The (defendant) (plaintiff) has the burden to prove (plaintiff's) (defendant's) failure to exercise ordinary care and the amount of damages, if any, which could have been minimized or avoided.

This instruction correctly allocates the burden of proof and should be given whenever substantial evidence is presented creating an issue for the jury as to the injured person's duty to mitigate. "Although not absolutely required, (Washington Pattern Jury Instructions) are to be used in preference to individually drafted instructions." Bradley v. Maurer, 17 Wash.App. 24, 28, 560 P.2d 719 (1977).

2. Evidence of Collateral Benefits

The defendants contend that they should have been permitted to introduce evidence as to the plaintiff's receipt of disability pension benefits to show his motivation in not returning to work.

Boeke v. International Paint Co., 27 Wash.App. 611, 617-18, 620 P.2d 103 (1980), is dispositive of this contention:

Courts from various jurisdictions have considered the question with conflicting results. The Oregon Supreme Court in Reinan v. Pacific Motor Trucking Co., 270 Ore. 208, 527 P.2d 256 (1974), identified three distinct approaches: a rule of strict exclusion, a rule of general admissibility, and a rule granting the trial judge discretion to admit the evidence in limited situations.... We agree that the rule of strict exclusion represents the better view.

We decline to reconsider the rule of strict exclusion of evidence of collateral benefits.

3. Instructions Concerning Preexisting Injury

The defendants assign error to the refusal to give their proposed instruction concerning aggravation of preexisting injury which read:

If you find that before this occurrence, the plaintiff had a preexisting bodily condition which was causing pain or disability, and further find that because of this occurrence, that condition or the pain or the disability was aggravated, then plaintiff is entitled to recover for the aggravation of the condition or for the pain or disability proximately due to such aggravation, but is not entitled to recover for any physical ailment or disability which may have existed prior to the occurrence or for any from which plaintiff may now be suffering which was not caused or contributed to by reason of the occurrence.

The trial court refused the defendant's proposed instruction on the ground that there was insufficient evidence to support it. The defendants argue that their proposed instruction was based upon undisputed evidence that the plaintiff had suffered a previous back injury which was symptomatic on the date of the accident. The defendants rely upon the testimony of Dr. Swanson, the emergency room physician, who stated that the plaintiff told him that he suffered chronic and recurrent lower and mid-back problems. The record indicates, however, that the plaintiff testified that his previous back problem had not given him trouble since 1971 and was not causing problems at the time of the accident. Dr. Swanson related the plaintiff's history concerning his previous back problems but he did not give an opinion that at the time of the accident the previous problem was symptomatic. Thus, the trial court did not err in determining that there was insufficient evidence to support the aggravation instruction. Greenwood v. The Olympic, Inc., 51 Wash.2d 18, 315 P.2d 295 (1957); Reeder v. Sears, Roebuck & Co., 41 Wash.2d 550, 250 P.2d 518 (1952).

The defendants also contend that it was error to give instruction 14 concerning a previous infirm condition without also giving their proposed instruction 6. We disagree. Instruction 14 was based upon WPI 30.18 which should be given if there is a preexisting condition that was not causing pain or disability. As stated in WPI 30.18, Note on Use at 186:

Use this instruction (concerning a previous infirm condition) for a pre-existing condition which was not causing pain or disability. If the pre-existing condition was causing pain or disability, use WPI 30.17 (concerning an aggravation of pre-existing condition). If the evidence is in dispute as to the existence of such pre-existing pain or disability, use both instructions.

Since there was evidence of a preexisting condition, but insufficient evidence that it was causing pain or disability, the trial court was not required to give both instructions.

4. Deposition Testimony

The defendants contend that the trial court abused its discretion in not admitting the deposition testimony of Dr Peterson who failed or refused to respond to a subpoena. We disagree.

On the next to the last day of trial the defendants requested permission to admit the deposition testimony of Dr. Peterson who had failed to respond to a subpoena. They relied upon CR 32(a)(3) which states:

The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: ... (D) that ...