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Kocher v. Getz3/30/2005
In this automobile-van collision personal injury case, the trial court refused instructions the defendant submitted on comparative fault, which would have permitted a jury to consider mitigation of damages for purposes of fault allocation. The jury found for the plaintiff. In a divided opinion, the Court of Appeals reversed. We granted transfer, and now affirm the trial court.
I.
The principal issue presented by this appeal is whether the defense of mitigation of damages under the Indiana Comparative Fault Act (the "Act") is considered as comparative fault in determining liability. This identical issue was addressed and decided in the Court of Appeals in Deible v. Poole, which we expressly adopted. In the present case, a different panel of the Court of Appeals majority declined to follow Deible.
At the jury trial in this motor vehicle collision case, the defendant admitted that he failed to yield the right-of-way, but denied that the accident caused significant injury or damages to the plaintiff. He asserted that the plaintiff failed to mitigate her damages on grounds that she made insufficient efforts to find replacement part-time employment at a point in time after the accident. The defendant tendered instructions under which the jury would make an allocation of fault under the Act. The trial court refused the instructions, but did instruct the jury that the plaintiff had the burden of proving damages, that the defendant contended the plaintiff "was at fault for failing to mitigate her damages," and that he claimed the plaintiff's "failure to mitigate her damages should reduce or preclude recovery of damages." The trial court also explained to the jury that " ersons claiming injury as a result of wrongs of others must use reasonable care, commensurate with their age and experience, to mitigate or minimize the damages resulting from a wrong, and not to enhance such damages."
Under the Act, proportional liability is determined by the fact-finder allocating a percentage of "fault" to the claimant, the defendant(s), and any "nonparty." "In assessing percentage of fault, the jury shall consider the fault of all persons who caused or contributed to cause the alleged injury, death, or damage to property . . . ." If the claimant's fault is fifty percent or less, the fact-finder determines a verdict by multiplying the percentage of fault of each defendant by the total amount of the claimant's damages.
"Fault" is specifically defined for the purposes of the Act to include: any act or omission that is negligent, willful, wanton, reckless, or intentional toward the person or property of others. The term also includes unreasonable assumption of risk not constituting an enforceable express consent, incurred risk, and unreasonable failure to avoid an injury or to mitigate damages.
In Deible, the defendant did not dispute the cause of an automobile collision but challenged the necessity of much of the plaintiff's medical treatment and the extent of her damages. Deible stated: "The issue before us in this appeal is whether the defense of failure to mitigate damages may be used as a defense to the ultimate issue of liability or whether it simply concerns the amount of damages the plaintiff is entitled to recover when liability has been determined." Answering the question raised, the court stated:
Failure to minimize damages does not bar the remedy, but goes only to the amount of damages recoverable. Otherwise stated, if the act of the injured party does not operate in causing the injury from which all damages ensued, but merely adds to the resulting damages, its only effect is to prevent the recovery of those damages which reasonable car
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