Radford v. NorrisRadford v. Norris
At the conclusion of all the evidence, the court held a charge conference pursuant to Rule 21 of the North Carolina General Rules of Practice, at which time the defendants submitted several written requests for specific instructions. The court refused to give these requested instructions. At the conclusion of the charge, defendants duly excepted to the court’s failure to give the requested instructions. Among the requested instructions was a request for an instruction on the doctrine of avoidable consequences. For the reasons that follow, we conclude that such an instruction should have been given and order a new trial.
The rule in North Carolina is that an injured plaintiff, whether his case be tort or contract, must exercise reasonable care and diligence to avoid or lessen the consequences of the defendant’s wrong. If he fails to do so, for any part of the loss incident to such failure, no recovery can be had. Johnson v. R.R.,184 N.C. 101 ,113 S.E. 606 . This rule is known as the doctrine of avoidable consequences or the duty to minimize damages. Failure to minimize damages does not bar the remedy; it goes only to the amount of damages recoverable. 22 Am. Jur. 2d Damages §§ 30-32 (1965).
Miller v. Miller,
This doctrine has generally been held to preclude recovery for those consequences of the tort-feasor’s act which could have been avoided by acting as a reasonable prudent man in following medical advice. 22 Am. Jur. 2d
Damages
§ 40 (1965). “Damages will not be reduced merely because the injured party fails to
follow the medical advice given. All he must do is to act reasonably concerning the advice which he receives.”
Id.
at 65. Since the test is one of reasonableness, and depends upon the circumstances of the particular case, it is a jury question except in the clearest of cases. Annot.,
Plaintiff testified that he sought medical treatment from Dr. O. P. Miller, an orthopedic surgeon, who prescribed a program of back exercises as part of the treatment for his back injury. He tried doing these exercises in the beginning, but stopped doing them because they were too painful. He was not doing the exercises at the time of the trial and did not plan to do them despite Dr. Miller’s suggestions.
Dr. Miller testified that the back exercises he recommended were considered routine treatment for plaintiffs kind of injury. The exercises were “designed to work out stiffness because the stiff back has a propensity to remain painful” and to strengthen the muscles which support the back. Plaintiff could best control his back pain by doing his exercises regularly, and he had told plaintiff so. On 25 January 1978 plaintiff advised him that he was slowly improving and that the exercises for his back had caused him some soreness but less than that he had experienced previously. On 1 March 1978, however, plaintiff advised him that he had stopped doing the exercises. From that visit forward, he repeatedly advised plaintiff to resume the exercises. He could not say with a reasonable medical certainty that the exercises, if done regularly, would cure the back pain, but he declared, “I know they make it better.” There is no absolute remedy.
There was thus evidence that plaintiff’s regular and continued performance of the prescribed exercises would have alleviated the pain, and thus that pain was a consequence that could have been avoided. “[W]hen a request is made for a specific instruction, correct in itself and supported by evidence, the trial court, while not obliged to adopt the precise language of the
We do not consider defendants’ remaining assignments of error as the questions they raise may not recur at a new trial.
New trial.