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Brockman v. Webber2/23/2000
The question on appeal is whether there was substantial evidence regarding the failure to mitigate damages issue to allow submission to the jury. We find there was not.
When asserting the defense of mitigation, the pleading party, in this case Mr. Webber, has the burden of proof. Iowa Power & Light Co. v. Board of Water Works Trustees, 281 N.W.2d 827, 833 (Iowa App.1979). The plaintiff, in refuting such a defense, only has to show that they used "reasonable diligence." See Whewell v. Dobson, 227 N.W.2d 115, 120 (Iowa 1975) (citation omitted).
In order to meet this burden of proof and allow a jury finding that the plaintiff failed to mitigate her damages by not losing weight, Mr. Webber must have submitted substantial evidence that Tracy's failure to lose weight was subsequent to a physician's order and that losing weight would have reduced her damages. Mr. Webber failed to meet this burden of proof. The record before us indicates one treating physician might have mentioned weight reduction to Tracy with no evidence that such an effort would help alleviate her back injury . Another treating physician made reference to weight loss on two occasions, stating only that Tracy was advised about weight reduction "as best as she can." Again, there was no mention that weight loss would, to any medical probability, help reduce the damage suffered by Tracy in the accident. Mr. Webber has failed to show Tracy Brockman failed to use reasonable diligence in following her treating physicians' medical orders. Therefore, this issue was incorrectly submitted to the jury, and the fifty-percent liability apportionment against Tracy Brockman should be stricken, and judgment should be entered for the amount of $18,889.17. We hereby remand for an order consistent with this finding. Costs are assessed to the defendant, John Webber.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
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