8.11 DAMAGES
CHARGES — GENERAL
B. DUTY TO MITIGATE DAMAGES BY MEDICAL AND
SURGICAL TREATMENT Civil Model Jury Charge
If
you decide that the plaintiff is entitled to damages for his/her injuries, you
should then determine whether any of plaintiff's injuries could have been
avoided or alleviated by plaintiff's exercise of reasonable care to protect
his/her own health.
It
is a general rule that a plaintiff injured by another's negligence (or other
wrongdoing) has a duty to exercise reasonable care to seek and submit to
medical and surgical treatment in order to affect a cure and minimize damages.
Failure or refusal to do so bars recovery for consequences which could have
been avoided by the exercise of such care. In other words, damages that could
have been prevented by the plaintiff's exercising reasonable care are not the
responsibility of the defendant.
In
this case, the defendant has introduced evidence by which he/she/it seeks to
reduce or avoid responsibility for plaintiff's injuries. The defendant must
prove by a preponderance of the evidence that after its negligence occurred,
the plaintiff acted unreasonably by either failing to seek or to submit to
medical treatment in order to avoid further injury.
Of
course, the plaintiff need not take unreasonable risks, nor take any risk to
life, even slight, nor undergo great pain or other suffering to reduce injury
inflicted by another. However, a refusal to follow surgical advice may be
unreasonable if, for example, plaintiff refuses an operation which offers a
reasonable prospect of restoration or relief and poses no danger to life or
health.
A
defendant is liable only for that portion of the injuries attributable to the
defendant's negligence. If you find that the plaintiff did not act reasonably
to avoid or to alleviate injury, you shall assess in terms of percentages the
degree to which the injuries were the result of the plaintiff's own
unreasonable failure to minimize or to avoid further injury.
Cases:
Ostrowski v. Azzara, 111 N.J. 429, 445
(1988); Brazil v. United States, 484 F. Supp. 986, 992 (N.D. Ala.
1979), plaintiff's fault contributed to cause 55% of his total damages. He recovers only 45%. Dziedzic v. St. John's Cleaners & Shirt
Launderers, Inc., 53 N.J. 157 (1969), a defendant bears the burden
of proving the causal link between a plaintiff's unreasonable conduct and the
extent of damages.
Budden v. Goldstein, 43 N.J. Super. 340
(App. Div. 1957) held that a refusal to undergo an operation is "not
unreasonable and therefore unjustifiable in the legal sense, unless it is free
from danger to life and health and extraordinary suffering, and, according to
the best medical or surgical opinion, offers a reasonable prospect of
restoration or relief from the disability." Budden, at 350. Accord,
Albert v. Monarch Federal Savings and Loan Assoc., 327 N. J. Super.
462 (App. Div. 2000).
Compare, Comparative
Negligence Act, N.J.S.A. 2A:15‑5.1. See, for example, Tobia v.
Cooper Hospital University Medical Center, 136 N.J. 335, 341-342
(1994):
In a long series of cases,
we have held that when a tortfeasor's duty includes exercise of reasonable care
to prevent a party from engaging in self‑damaging conduct, contributory
negligence is barred as a defense. ..."As one writer * * * has said,
'[o]nce it is established that the defendant has a duty to protect persons from
the consequences of their own foreseeable faulty conduct, it makes no sense to
deny recovery because of the nature of the plaintiff's conduct.'" Green v. Sterling Estruder, 95 N.J.
263 at 272 (quoting Patricia Marshall, An Obvious Wrong Does Not Make a
Right: Manufacturers' Liability for Patently Dangerous Products, 48 N.Y.U.L.
Rev. 1065, 1088 (1973)).
Sample Jury Interrogatory
Avoidable Consequence[1]
1.
Did plaintiff contribute to his/her
injury by failing to return to the doctor's office or otherwise failing to
follow his/her doctor's advice?
Yes______
No______
(5 out of 6)
If yes, answer Question No. 2; if
no, cease deliberations.
2. Set forth in terms of percentages that
aspect of the plaintiff's whole injury that occurred as a result of plaintiff's
failure to follow [doctor's] advice.
________________%
(5
out of 6)
[1] This question
is answered only if the jury awards damages and should follow the damages
question on the verdict sheet. Any verdict to the plaintiff is reduced by the
percentage stated in No. 2.
