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Greenwood v. Mitchell8/16/2000
contends there was not substantial evidence to submit the failure to mitigate instruction to the jury. We affirm.
Our review of this issue is for correction of errors at law. The Iowa R. App. P. 4.
I.
Appellant claims the trial court erred by giving the trial jury failure to mitigate damages and comparative fault instructions.
The mitigation instruction is contained in jury instruction No. 12 and is as follows:
Defendant claims plaintiff was at fault by failing to exercise ordinary care to obtain reasonable medical treatment. Evidence has been introduced that damages could have been reduced to some extent if Dale Greenwood had done his prescribed home exercises. An injured person has no duty to undergo serious or speculative medical treatment, but, if by reasonable expense and by reasonable inconvenience, a person exercising ordinary care could have reduced the damages, he has a duty to do so.
Instruction No. 13 provides:
The defendant claims the plaintiff was at fault in failing to mitigate his damages. These grounds of fault have been explained to you in the previous instruction. The defendant must prove both of the following propositions: 1. The plaintiff was at fault. In order to prove fault, the defendant must prove plaintiff has failed to mitigate his damages. 2. The plaintiff's fault was a proximate cause of the plaintiff's damage. If the defendant has failed to prove either of these propositions, the defendant has not proved his defense. If the defendant has proved both of these propositions, then you will, assign a percentage of fault against the plaintiff and include the plaintiff's fault in the total percentage of fault found by you answering the special verdicts.
In the case of Tullis v. Merrill, 584 N.W.2d 236, 240 (Iowa 1998), the Iowa supreme court held:
Litigants are entitled to have their legal theories submitted if those theories are supported by the pleadings and substantial evidence in the record. . . . The trial court, however, must refuse to instruct on "an issue having no substantial evidentiary support or which rests on speculation." (quoting Clinton Land Co. v. MIS Assocs., 340 N.W.2d 232, 234 (Iowa 1983)).
Evidence is substantial when reasonable minds would accept it as adequate to reach the conclusion. Lane v. Coe College, 581 N.W.2d 214, 216 (Iowa App. 1998).
Iowa's comparative fault act directs the jury shall allocate percentage of fault among the parties. Iowa Code § 668.3 (1999). This act also directs the trial court to instruct the jury to answer its special interrogatories indicating the percentage of fault allocated to each claimant and defendant. Iowa Code § 668.3(2)(b). A claimant's failure to mitigate damages following an accident or injury is assessible as fault against that party. Iowa Code § 668.1(1).
Iowa appellate courts have held a plaintiffs failure to follow prescribed physical therapy may constitute fault under Iowa Code section 668.1. McDonnell v. Chally, 529 N.W.2d 611, 613 (Iowa App. 1994). A plaintiffs failure to mitigate his or her damages by failing to follow suggested medical treatment has been upheld as sufficient grounds to submit a defense of comparative fault to a jury. See Tanberg v. Ackerman Investment Co., 473 N.W.2d 193, 196 (Iowa 1991); Miller v. Eichhorn, 426 N.W.2d 641, 643 (Iowa App. 1988).
We affirm on this issue.
Appellant also claims there was not substantial evidence to support a failure to mitigate damages claim or instruction. We note prior to the presentation of evidence at trial appellee Mitchell admitted fault and the trial court directed a finding on
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