132 N.E.3d 512
Ind. Ct. App.2019Background
- On Feb. 7, 2016, Humphrey’s car was struck by the trailer of a tractor-trailer driven by Tuck (a U.S. Xpress employee); both drivers stopped and a police officer responded. Humphrey initially declined medical treatment and continued to travel to Iowa for job orientation.
- At his hotel Humphrey developed vision problems; an MRI revealed a preexisting pituitary tumor and pituitary apoplexy; physicians warned surgery was necessary to avoid blindness. Neurosurgery was performed Feb. 26, 2016.
- Postoperatively Humphrey was treated by an endocrinologist who prescribed bromocriptine to reduce elevated prolactin; prolactin levels fell substantially over 2016. Humphrey inconsistently took the medication due to side effects and cost; later he received testosterone injections with symptomatic improvement. He was prescribed eyeglasses but did not fill them.
- Humphrey sued Tuck and U.S. Xpress for negligence (complaint filed Apr. 15, 2016). At trial defendants argued Humphrey failed to mitigate damages by not taking medication exactly as prescribed and by not obtaining eyeglasses.
- The trial court gave a failure-to-mitigate jury instruction over Humphrey’s objection. The jury returned a general verdict for Humphrey and awarded $40,000. On appeal the court held the mitigation instruction was erroneous because defendants failed to prove the required causation/identifiable-harm element and reversed and remanded for a new trial on damages only.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by instructing the jury on plaintiff’s duty to mitigate damages | Humphrey: defendants did not prove the second element of failure-to-mitigate (that his noncompliance caused an identifiable, quantifiable increase in harm) | U.S. Xpress: Humphrey’s failure to take bromocriptine as prescribed and failure to get eyeglasses caused continuation/exacerbation of hormonal and vision symptoms | Court: Instruction was erroneous—defendants failed to show that noncompliance produced an identifiable increased harm; reverse and remand for new trial on damages only. |
Key Cases Cited
- Simmons v. Erie Ins. Exchange, 891 N.E.2d 1059 (Ind. Ct. App. 2008) (standard for reviewing jury-instruction issues)
- Hoosier Ins. Co. v. N.S. Trucking Supplies, Inc., 684 N.E.2d 1164 (Ind. Ct. App. 1997) (instruction-review framework)
- Deible v. Poole, 691 N.E.2d 1313 (Ind. Ct. App. 1998) (mitigation of damages reduces recoverable post-injury losses)
- Colonial Discount Corp. v. Berkhardt, 435 N.E.2d 65 (Ind. Ct. App. 1982) (defendant bears burden to prove failure to mitigate)
- Willis v. Westerfield, 839 N.E.2d 1179 (Ind. 2006) (two-element framework for failure-to-mitigate affirmative defense: reasonable care and causation/identifiable harm)
- Buhring v. Tavoletti, 905 N.E.2d 1059 (Ind. Ct. App. 2009) (failure-to-mitigate instruction unwarranted absent proof of discrete, identifiable harm)
- Elmer Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939 (Ind. 2001) (new trial required when improper instruction reasonably could have formed basis of verdict)
- Fleetwood Enter., Inc. v. Progressive N. Ins. Co., 749 N.E.2d 492 (Ind. 2001) (erroneous instruction merits reversal if it could have formed basis for jury’s verdict)