Zimmerman v. Ausland
513 P.2d 1167 (1973)
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Rule of Law:
An injury may be considered permanent for the purpose of calculating damages, even if it is potentially curable by surgery, unless the defendant meets the burden of proving that the plaintiff's failure to undergo the surgery was unreasonable. To meet this burden, the defendant must present evidence regarding the risks and probability of success of the potential surgery.
Facts:
- Plaintiff suffered an injury to her right knee in an automobile accident for which the defendant admitted liability.
- The injury caused ongoing swelling and pain, preventing her from participating in physical activities associated with her job as a substitute teacher and her personal life.
- Plaintiff's doctor diagnosed a torn semi-lunar cartilage, described the injury as "permanent," and stated that surgery would likely be required in the future but was not immediately necessary.
- The doctor testified that indications for immediate surgery were a locked knee or one that was catching and causing falls, neither of which the plaintiff was experiencing.
- No doctor had advised the plaintiff that she should undergo surgery on her knee, and she had not refused any recommended treatment.
- Defendant's doctor testified that if the plaintiff had such a tear, surgery would allow for a complete recovery.
- No evidence was presented at trial by either party regarding the specific risks involved in the potential knee surgery.
Procedural Posture:
- Plaintiff filed an action in trial court seeking damages for personal injuries from an automobile accident.
- Defendant admitted liability for the accident, and the case proceeded to a jury trial solely on the issue of damages.
- The jury returned a verdict of $7,500 in favor of the plaintiff.
- Defendant, as appellant, appealed the judgment entered by the trial court to the Supreme Court of Oregon.
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Issue:
Is it an error for a trial court to submit the issue of permanent injury to a jury where the injury is potentially curable by surgery, but the defendant has not produced evidence that the plaintiff unreasonably failed to mitigate damages by undergoing that surgery?
Opinions:
Majority - Tongue, J.
No. It is not an error for the trial court to allow the jury to consider an injury permanent under these circumstances. The defendant bears the burden of proving that a plaintiff unreasonably failed to mitigate her damages. To find that a plaintiff unreasonably refused surgery, the fact-finder must consider what an ordinarily prudent person would do, weighing factors such as the risk involved, the probability of success, and the required expenditure. In this case, the defendant failed to meet this burden because no evidence was offered regarding the risk of the surgery. Furthermore, no physician had even recommended that the plaintiff undergo the procedure. Because the defendant did not provide sufficient evidence to establish as a matter of law that the plaintiff unreasonably failed to mitigate her damages, the trial court correctly allowed the jury to decide whether the injury was permanent based on the plaintiff's evidence.
Analysis:
This case clarifies the allocation of burdens in a mitigation of damages defense involving medical procedures. It establishes that a defendant cannot defeat a claim for permanent injury merely by pointing to the existence of a potential surgical cure. The ruling requires the defendant to affirmatively prove with evidence that the plaintiff's decision not to undergo the procedure was unreasonable, focusing on objective factors like surgical risk and medical advice. This precedent protects injured plaintiffs from being penalized for not undergoing surgery that has not been recommended or whose risks have not been established in court, thereby reinforcing the principle that the party asserting a defense bears the burden of proving it.
