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Francis v. Dahl1/13/2005
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Rothenberg and Nieto, JJ., concur
Plaintiff, Nyree Ivy Magelia Francis, through her mother and next friend Marcia Goodridge, appeals from the judgment entered on the jury's verdict finding in her favor and awarding damages of $20,000 on her negligence claim against defendant, Corey Lyn Dahl. We affirm in part, reverse in part, and remand for further proceedings.
On September 23, 2000, plaintiff was injured in an automobile accident involving a vehicle driven by defendant. At the time of the accident, plaintiff was ten years old. The jury found that defendant was negligent and that plaintiff had suffered injuries as a result of that negligence. The jury awarded plaintiff $16,000 in damages for non-economic injuries and $4,000 for physical impairment or disfigurement.
On appeal, plaintiff requests a new trial on damages. Plaintiff also challenges the trial court's calculation of interest on the amount of the judgment.
I.
Plaintiff first contends the trial court erred as a matter of law when it instructed the jury on her alleged failure to mitigate her damages. We agree.
Over plaintiff's objection, the trial court gave the following jury instruction on mitigation of damages:
If you find that the plaintiff, Nyree Ivy Majelia Francis has had actual damages, then you must consider whether the defendant, Corey Lyn Dahl, has proved her affirmative defense of plaintiff's failure to mitigate or minimize damages. The plaintiff has the duty to take reasonable steps under the circumstances to mitigate or minimize her damages. Damages, if any, caused by plaintiff's failure to take such reasonable steps cannot be awarded to the plaintiff.
This affirmative defense is proved if you find both of the following have been proven by a preponderance of the evidence:
1. The plaintiff failed to seek medical or chiropractic treatment for the injuries she sustained in this accident;
2. The plaintiff had some increased injuries because she did not take the reasonable steps to obtain medical or chiropractic treatment.
If you find that one or more of these propositions has not been proved by a preponderance of the evidence, then you shall make no deduction from plaintiff's damages.
On the other hand, if you find that both of these propositions have been proved by a preponderance of the evidence, then you must determine the amount of damages caused by the plaintiff's failure to take such reasonable steps.
This amount must not be included in your award of damages.
Plaintiff argues that, as a minor, she has no financial resources, is completely dependent upon her mother and thus, as a matter of law, could not reasonably have mitigated her damages by seeking medical or chiropractic care on her own. Defendant contends that the instruction was proper and that the issue of mitigation was for the jury to decide. We agree with plaintiff that, under the circumstances here, the trial court erred in giving a mitigation instruction to the jury and that a new trial on damages is required.
Failure to mitigate damages refers to the injured party's failure to take such steps as are reasonable under the circumstances to minimize the resulting damages. However, a plaintiff is not required to take unreasonable measures in an effort to mitigate his or her damages. Burt v. Beautiful Savior Lutheran Church, 809 P.2d 1064, 1068 (Colo. App. 1990). Moreover, a plaintiff's failure to mitigate damages is excused if there were reasonable grounds for the failure, including
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