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Shumar v. Kopinsky8/30/2001
JUDGMENT: AFFIRMED.
Plaintiff-appellant Susan Shumar appeals from the amount of the award granted to her for her personal injury claims in the court below. Specifically, Shumar argues that the trial court erred in giving the jury a failure to mitigate instruction; that the trial court improperly granted defendant-appellee Anne Kopinsky's motion to amend pleadings to conform to the evidence; and that the trial court erred in denying Shumar's motion for new trial because the damages awarded by the jury were inadequate and against the manifest weight of the evidence. For the reasons below, we affirm the decisions of the trial court.
On December 7, 1996, while making a left-hand turn, Kopinsky crashed into Shumar's vehicle. As a result of this accident, Shumar's shoulder, neck and back were injured. Shumar filed a personal injury suit against Kopinsky on November 25, 1998.
On February 5, 1998, defendant-appellee Victor Marquardt's car crashed into the rear of Shumar's vehicle. Shumar was still continuing to receive medical treatment for her previous injuries at the time of this second accident. On June 11, 1998, Shumar filed an amended complaint, adding Marquardt as a party-defendant.
Prior to trial, both Kopinsky and Marquardt stipulated that they were negligent in the respective accidents. Thus, the only issues to be determined at trial were proximate cause, injuries and the amount of damages to which Shumar was entitled.
The jury returned a general verdict in Shumar's favor in the amount of $15,000. The jury found that Kopinsky was 95% negligent and Marquardt was 5% negligent.
Shumar raises the following assignments of error:
I. THE TRIAL COURT ERRED IN ISSUING A JURY INSTRUCTION THAT PERMITTED THE JURY TO CONSIDER WHETHER OR NOT THE APPELLANT FAILED TO MITIGATE HER DAMAGES.
Shumar maintains that the evidence did not support giving the jury a failure to mitigate charge.
A court will not instruct the jury where there is no evidence to support an issue, or where abstract rules of law or general propositions, even though correct, are not applicable to a given case. Stewart v. Hoffman (Apr. 21, 1994), Cuyahoga App. No. 65099, unreported, citing, Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585, 591, 575 N.E.2d 828; State v. Guster (1981), 66 Ohio St.2d 266, 421 N.E.2d 157.
It is a general principle of law that a plaintiff who is injured by the tort of another has a duty to mitigate and may not recover damages for harm that could have been avoided with reasonable effort or expenditure thereafter. Johnson v. Univ. Hosp. of Cleveland (1987), 44 Ohio St.3d 49, 57, 540 N.E.2d 1370 (citations omitted.) However, a charge on mitigation of damages in a tort case should only be given where there is evidence that the injured party did not take all the steps necessary to ensure that he or she does not exacerbate the already existing injury or injuries, e.g., through ignoring medical advice or acting in a careless manner. Stewart, supra.
This court will not reverse the decision of the trial judge relating to whether sufficient facts existed to support a jury instruction absent an abuse of discretion. State v. Kelly (July 12, 2001), Cuyahoga App. No. 78422, unreported, citing, State v. Barnd (1993), 85 Ohio App.3d 254, 260, 619 N.E.2d 518, 521-522.
As discussed below, ample evidence existed to support a finding that Shumar took measures to mitigate her damages. However, there was also evidence presented to the jury to support a failure to mitigate charge. For instance, both Shumar and her fiance testified that despite her complaints of severe back and sh
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