 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Grubbs v. Knoll4/15/2005
Stevens in lieu of counsel fees.
IV.
Chapman contends that the trial judge erred in failing to charge the jury on mitigation of damages. We disagree.
At the jury charge conference, the trial judge indicated that, in his view, there was no issue in the case pertaining to the Knolls' obligation to mitigate their damages. Counsel for Chapman disagreed, and the judge asked him to identify his proofs on this point. Chapman's counsel thereafter suggested that the Knolls could have expeditiously moved for summary rescission, attempted to make better use of the property by at least keeping all of their horses there, or tried to sell it.
In rejecting these points, the trial court noted that Chapman had not presented their own appraisal of the value of the property or identified a realtor willing to list the property or any potential buyers. With respect to better use of the property, the court directed that Chapman was free to argue to the jury that all of the Knolls' horses could have been kept at the property, thereby limiting their damages. Lastly, the court stated that it was too late to bring up rescission for purposes of this trial, and that, in any event, the Knolls still would have had to prove fraud in a rescission proceeding. However, the court did agree to consider, in ruling upon any future fee application, whether the Knolls should have taken such action.
Injured parties have a duty to take reasonable steps to mitigate damages. Ingraham v. Trowbridge Builders, 297 N.J. Super. 72, 82 (App. Div. 1997). The burden of proving facts in mitigation of damages rests upon the defendant. Wade v. Kessler Inst., 343 N.J. Super. 338, 355 (App. Div. 2001), aff'd, 172 N.J. 327 (2002); Ingraham, supra, 297 N.J. Super. at 83. Where there is no evidence of an unreasonable failure to mitigate, a defendant is not entitled to have the jury instructed on the injured party's obligation to mitigate its damages. Spaulding v. Hussain, 229 N.J. Super. 430, 443-44 (App. Div. 1988). The reasonableness of the plaintiff's actions is measured by a subjective standard. Covino v. Peck, 233 N.J. Super. 612, 617 (App. Div. 1989).
Although Chapman now renews his contention that the jury should have been instructed on the Knolls' duty to mitigate their damages, Chapman overlooks: (1) that he presented no testimony to rebut Kailo's testimony that the Knolls stood to lose $52,000 from the sale of the property and faced a mortgage deficiency; (2) that he likewise failed to produce a realtor willing to market the property; (3) that he was permitted to argue to the jury that the Knolls could have avoided the boarding fees for their older horse by keeping him on the property; and (4) that a rescission proceeding would not have been substantially less complicated than the instant trial. Chapman's proofs were clearly lacking to require a charge on mitigation. In one instance, the trial court permitted argument on boarding fees for the horses. What Chapman essentially maintains is, that by requiring the Knolls to sell their property, the calculation of damages would have become easier. However, ease of damage calculation has nothing to do with the principle of mitigation. Moreover, the doctrine is viewed from Chapman's point of view, not from the Knolls' perspective which is what the law requires. Id. at 617-20. The trial court did not err in declining to charge the jury on the Knolls' duty to mitigate their damages.
V.
The Knolls argue, as part of their cross-appeal, that the trial judge erred in ruling that Chapman was not jointly and severally liable for "all of the Knolls' compensatory damages, including attorney's fees," under the theory that, as th
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 New Jersey Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|