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Dunn v. Maxey3/12/1997
SLABY, Judge.
Plaintiff-appellant, Lance Dunn, appeals from the jury award in his personal injury action against defendant-appellee, Gertrude R. Maxey, claiming that thsjury instructions were erroneous and the jury's award was inadequate based on the damages incurred. We affirm.
Appellant was injured as a result of an automobile accident on June 14, 1994, when appellee's vehicle struck the rear of the vehicle in which appellant was a passenger. Appellee admitted liability for the collision, but disputed that she caused all of appellant's injuries. The only issue before the jury was to assess the damages proximately resulting from the accident.
Appellant, a twenty-five-year-old laborer and truck driver, testified that he suffered a back injury as a result of the accident. He told of pain radiating down the back of his leg and generalized back pain, and claimed that he could no longer participate in sports and other activities he used to enjoy. Appellant also maintained that he was unable to perform his previous job , which required repetitive lifting. After an eight-month period of unemployment he found a new job, but was unable to work full-time. Appellant's doctor testified that he will need to have spinal surgery, and will sustain a ten-year reduced work-life expectancy and future lost earnings.
Appellee acknowledged that appellant may have sustained some injury as a result of this collision. However, she maintained that appellant's most serious back problems were the result of an earlier automobile accident and the surgery that he underwent in 1988 to correct back problems resulting from that accident. Appellee's medical expert testified that the lower back pain was the result of "an advanced arthritic process" resulting from the 1988 accident and surgery, and not the 1994 accident. Appellee presented further evidence that appellant could have alleviated pain resulting from the 1994 accident if he would have undergone a minor outpatient surgical procedure shortly after the accident.
The jury awarded appellant $36,500 in damages. Appellant timely appeals, raising three assignments of error.
ASSIGNMENT OF ERROR I
"The Court committed prejudicial error in instructing the jury on mitigation of damages relating to surgery."
Appellee requested a jury instruction concerning mitigation of damages because appellant did not have surgery to repair his herniated disc, even though the outpatient procedure had been recommended and scheduled by his treating physicians. Appellant stated that he did not undergo this procedure because he did not have health insurance. He claimed that could not afford to pay his own physician for the surgery, and he was unwilling to be treated by a resident physician. Appellant's physician also testified that spinal fusion surgery would be needed to repair instability in his lumbar vertebrae. Appellant acknowledges that he may have to undergo this procedure, but has delayed having it donsbecause it involves major surgery with a possibility of complications, and no guarantee of success.
A court ordinarily should give requested jury instructions where they are correct statements of the law as applied to the facts in the case and where there is evidence from which reasonable minds might reach the conclusion sought by the instruction. Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585, 591, 575 N.E.2d 828, 882; Feterle v. Huettner (1971), 28 Ohio St.2d 54, 57 O.O.2d 218, 275 N.E.2d 340, syllabus. The law in Ohio precludes one who is injured by the tort of another from recovering damages for harm that could have been avoided by reasonable effort or exp
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