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Lascano v. Vowell9/5/1996
at might reasonably have been avoided. Ballow v. PHICO Insurance Co., 878 P.2d 672 (Colo. 1994).
However, a plaintiff has no duty to anticipate a defendant's negligence and has no duty to mitigate damages until after the original injury has occurred. Burt v. Beautiful Savior Lutheran Church, 809 P.2d 1064 (Colo. App. 1990).
Here, as part of the mitigation of damages instruction, the trial court instructed the jury that:
This defense is proved if you find all of the following:
1. the plaintiff failed to follow the advice of her doctors and dentists.
2. such failure caused the plaintiff to incur more injuries than she otherwise would have; and
3. the amount of damages caused by such failure.
At trial, plaintiff's dentist testified that, before the accident, he had told her to wear a "night-guard" to help prevent injury to her jaws caused by grinding her teeth in her sleep. He further testified that she had refused to wear the night-guard for some time and later wore it only occasionally.
A chiropractor who had treated plaintiff testified that she had admitted to him that she had not worn the night-guard for several months after the accident. Another dentist testified that the failure to wear the night-guard could have caused deterioration of the temporomandibular joint in her jaw, a joint that plaintiff claimed was injured as a result of the accident.
Similarly, evidence was presented that, after the accident, plaintiff had failed to wear a splint in her mouth as directed by her dentist. The dentist testified that he had prescribed the splint with the intent that its use would help plaintiff avoid the need for surgery.
Here, conflicting evidence was presented whether plaintiff's decisions not to wear the night-guard or splint after the automobile accident were unreasonable under the circumstances. However, the instruction given to the jury did not require the jury to determine the reasonableness of plaintiff's conduct. Rather, the jurors were instructed that they could reduce plaintiff's damages if they found that she had failed to follow her doctors' advice and that she had incurred greater injuries as a result of her failure to do so.
The question whether plaintiff's conduct was reasonable under the circumstances was a necessary factual predicate to a finding that she had failed to mitigate her damages. As such, it should have been addressed to the jury as fact finder. Because the instruction took this question from the jury, its use here was error, and it would need appropriate revision if again proffered on remand. See Martin v. Porak, 638 P.2d 853 (Colo. App. 1981).
IV.
In light of this Disposition, because plaintiff's other contentions of error are either moot or not likely to arise on retrial, we need not address them.
The judgment is reversed and the cause is remanded for a new trial on the issue of damages.
JUDGE CRISWELL and JUDGE TURSI concur.
Disposition
JUDGMENT REVERSED AND CAUSE REMANDED WITH DIRECTIONS
Judges Footnotes
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