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Lascano v. Vowell9/5/1996
o the plaintiff's tort action, a later event or incident either: (1) causes a new, unrelated injury to the plaintiff or (2) aggravates the injury the plaintiff suffered as a result of the defendant's tortious conduct. See Bruckman v. Pena, 29 Colo. App. 357, 487 P.2d 566 (1971); see also Guerrero v. Bailey, 658 P.2d 278 (Colo. App. 1982).
Here, the evidence did not show that any of these later incidents caused an injury to plaintiff that was separate and unrelated to those caused by the automobile accident. Indeed, defendant appears to concede that there was not sufficient evidence of a separate injury, arguing instead that the three incidents aggravated the injuries plaintiff had sustained in the automobile accident.
Thus, for the instruction to be appropriate, there must have been evidence showing that one or more of the later incidents aggravated plaintiff's injuries. The resolution of this question, in turn, depends on how the term "aggravated" is defined in this context.
Here, no definition of the term "aggravated" was provided in the instructions. In the absence of any definition, we presume that the jury applied the common meaning of the word "aggravated." See Armentrout v. FMC Corp., 842 P.2d 175 (Colo. 1992).
To "aggravate" an injury can mean: "(3) to make worse, more serious, or more severe: INTENSIFY" or "(4)(b) to produce inflammation in: IRRITATE." Webster's Third New International Dictionary 41 (1986).
The first definition is consistent with the term as it is used in CJI-Civ. 3d 6:9, which lists the words "increased" or "worsened" as acceptable synonyms for "aggravated." See, e.g., Guerrero v. Bailey, supra. The second definition implies an inflammation or irritation of an injury , causing additional pain but not necessarily increasing or worsening the injury itself. This common definition does not conform to the requirement that increased injury must be shown.
The factual context of plaintiff's claims here could not have provided a basis for the jurors to determine which of these two equally plausible meanings was appropriate. The only evidence offered of aggravation of plaintiff's injuries related to three events in which plaintiff reported feeling increased pain. The jurors could have drawn conflicting inferences about whether the inflammation of the prior injury constituted an aggravation of it.
Because the term "aggravated" was susceptible to more than one reasonable meaning in this factual context, the instruction was ambiguous. And, since only one of the definitions of this term accurately reflects the applicable law, it is possible that the jurors were confused or misled by the ambiguous wording. Moreover, this defect was not cured by the other instructions. Thus, in our view, the instructions as a whole inadequately appraised the jury of the appropriate meaning of the word "aggravated." See Armentrout v. FMC Corp., supra.
Therefore, on remand, the applicability of this instruction must be reconsidered in light of the evidence presented. If it is determined that the evidence supports such an instruction, the trial court should determine whether it is necessary to provide further definitions of terms.
III.
Plaintiff next argues that the trial court erred in instructing the jury on the affirmative defense of failure to mitigate damages. We agree that this issue must be reconsidered on remand.
A plaintiff has the duty to take such steps as are reasonable under the circumstances to mitigate the damages sustained. Thus, a plaintiff may not recover damages for injuries th
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