Opinion
No. 0-042 / 99-644
Filed August 16, 2000
Appeal from the Iowa District Court for Polk County, Robert D. Wilson, Judge.
Plaintiff appeals following a trial on his personal injury action in which the jury found he was sixty percent at fault. AFFIRMED.
Erik A. Luthens of Luthens Law Offices, P.C., West Des Moines, for appellant.
Edward G. Parker of Morain, Burlingame Pugh, P.L.C., West Des Moines, for appellee.
Considered by Zimmer, P.J., Vaitheswaran, J., and Hayden, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (1999).
On December 12, 1995 plaintiff-appellant was walking on the sidewalk along Easton Boulevard in Des Moines, Iowa. He was struck by a vehicle operated by defendant-appellee. He attempted to get out of the way by diving into an adjacent yard. Appellant was treated by his family physician for the injuries to his right shoulder and leg. After conservative treatment did not alleviate the problems with his right shoulder he was referred to an orthopedic surgeon. Appellant continued to have problems with overhead lifting due to his shoulder injury. The orthopedic surgeon diagnosed appellant as suffering from an impingement syndrome in his right shoulder.
The orthopedic surgeon performed an arthroscopy decompression surgery on appellant's right shoulder at Iowa Lutheran Hospital. After the surgery appellant underwent physical therapy with a physical therapist under the direction of the orthopedic surgeon.
On or about June 19, 1996 appellant completed his physical therapy sessions with the therapist. He was advised to keep it up to the extent he needed it and as required.
The orthopedic surgeon released appellant to go back to work with no restrictions. The orthopedic surgeon believed any work restrictions on appellant would have negative impact on his employment with the Iowa National Guard.
Appellant's job at the Iowa Army National Guard requires him to lift various electronic equipment such as radio receiver transmitters weighing approximately sixty pounds.
Appellant did not follow his physical therapy exercises as directed, even though he was advised the exercises would help him with any future symptoms he may encounter.
After appellant's recovery from his impingent syndrome he incurred other injuries to his right shoulder. In September of 1996, appellant injured his right shoulder while firing an M-16 rifle. On April 11, 1997, he ran his right shoulder into a mortar truck.
On June 17, 1997 appellant returned to the orthopedic surgeon because he had been experiencing weakness in his right shoulder and arm, also at times they felt numb. Appellant underwent EMG and nerve conduction tests. These tests were negative. There was no evidence of neurological involvement with respect to his right upper extremities. The orthopedic surgeon allowed appellant to return to work with no restrictions.
Dr. Peter Wirtz, an orthopedist, examined Greenwood and testified for Mitchell at trial. Dr. Wirtz found appellant to have normal strength in his shoulder. Appellant had no neurological problems. Greenwood's range of motion in his shoulder was slightly diminished. Dr. Wirtz allocated 4% impairment to appellant's right upper extremity and 2% to his whole person. Dr. Wirtz also testified this impairment is not disabling for daily activities and work. Dr. Wirtz also stated Greenwood would not require any future medical therapy or surgery.
On cross examination at trial appellant testified he discontinued home therapy because he felt it was not doing him any good. At trial appellee requested an instruction regarding appellant's failure to mitigate damages, and he was at fault for failing to do so. Appellee claimed appellant's discontinuation of home therapy was evidence of damages and is assessable as fault against him.
The jury found appellant was sixty percent at fault for his injuries and appellee forty percent at fault.
On appeal, appellant contends there was not substantial evidence to submit the failure to mitigate instruction to the jury. We affirm.
Our review of this issue is for correction of errors at law. The Iowa R. App. P. 4.
I.Appellant claims the trial court erred by giving the trial jury failure to mitigate damages and comparative fault instructions.
The mitigation instruction is contained in jury instruction No. 12 and is as follows:
Defendant claims plaintiff was at fault by failing to exercise ordinary care to obtain reasonable medical treatment. Evidence has been introduced that damages could have been reduced to some extent if Dale Greenwood had done his prescribed home exercises. An injured person has no duty to undergo serious or speculative medical treatment, but, if by reasonable expense and by reasonable inconvenience, a person exercising ordinary care could have reduced the damages, he has a duty to do so.
Instruction No. 13 provides:
The defendant claims the plaintiff was at fault in failing to mitigate his damages. These grounds of fault have been explained to you in the previous instruction. The defendant must prove both of the following propositions: 1. The plaintiff was at fault. In order to prove fault, the defendant must prove plaintiff has failed to mitigate his damages. 2. The plaintiff's fault was a proximate cause of the plaintiff's damage. If the defendant has failed to prove either of these propositions, the defendant has not proved his defense. If the defendant has proved both of these propositions, then you will, assign a percentage of fault against the plaintiff and include the plaintiff's fault in the total percentage of fault found by you answering the special verdicts.
In the case of Tullis v. Merrill, 584 N.W.2d 236, 240 (Iowa 1998), the Iowa supreme court held:
Litigants are entitled to have their legal theories submitted if those theories are supported by the pleadings and substantial evidence in the record. . . . The trial court, however, must refuse to instruct on "an issue having no substantial evidentiary support or which rests on speculation."
(quoting Clinton Land Co. v. MIS Assocs., 340 N.W.2d 232, 234 (Iowa 1983)).
Evidence is substantial when reasonable minds would accept it as adequate to reach the conclusion. Lane v. Coe College, 581 N.W.2d 214, 216 (Iowa App. 1998).
Iowa's comparative fault act directs the jury shall allocate percentage of fault among the parties. Iowa Code § 668.3 (1999). This act also directs the trial court to instruct the jury to answer its special interrogatories indicating the percentage of fault allocated to each claimant and defendant. Iowa Code § 668.3(2)(b). A claimant's failure to mitigate damages following an accident or injury is assessible as fault against that party. Iowa Code § 668.1(1).
Iowa appellate courts have held a plaintiffs failure to follow prescribed physical therapy may constitute fault under Iowa Code section 668.1. McDonnell v. Chally, 529 N.W.2d 611, 613 (Iowa App. 1994). A plaintiffs failure to mitigate his or her damages by failing to follow suggested medical treatment has been upheld as sufficient grounds to submit a defense of comparative fault to a jury. See Tanberg v. Ackerman Investment Co., 473 N.W.2d 193, 196 (Iowa 1991); Miller v. Eichhorn, 426 N.W.2d 641, 643 (Iowa App. 1988).
We affirm on this issue.
Appellant also claims there was not substantial evidence to support a failure to mitigate damages claim or instruction. We note prior to the presentation of evidence at trial appellee Mitchell admitted fault and the trial court directed a finding on special verdict number 1 Mitchell was at fault and answered the question form "yes." The jury answered the remaining special verdict form numbers by finding Mitchell's fault was a proximate cause of appellant Greenwood's damage and found Greenwood was also at fault. The jury also found Greenwood's fault was a proximate cause of his damage and lastly, the jury determined Greenwood's fault constituted sixty percent of the fault, proximately causing his damage and Mitchell's fault constituted the remaining forty percent. Accordingly, the jury did not answer any further questions. The trial court asked the jury whether they understood that pursuant to their verdict, they were finding Greenwood sixty percent at fault for failing to mitigate his damages. The jury acknowledged that was in fact their finding.
In view of the above proceedings we determine appellant was not prejudiced from the trial courts giving the jury the failure to mitigate instruction.
We hold there was substantial evidence for the jury to make its determination.
II. The appellant Greenwood claims the jury's verdict does not constitute substantial justice.
Our review on this issue is for abuse of discretion. Iowa R. App. P. 14(f)(3) (1999); Johnson v. Knoxville Community School Dist., 570 N.W.2d 633, 635 (Iowa 1997). According to this standard rulings of a trial court are presumably correct and will be disturbed on appeal only upon a clear showing of an abuse of discretion. Glenn v. Carlstrom, 556 N.W.2d 800, 804 (Iowa 1996).
Appellant Greenwood relies upon the supreme court decision in Johnson v. Knoxville Community School District, 570 N.W.2d 633 (Iowa 1997). There the Supreme Court focused on a situation where there was (1) an admission of negligence by the defendant; (2) substantial evidence that said negligence was a proximate cause of plaintiff's damages; and (3) the jury's verdict failed to award damages to the plaintiff. Johnson, 570 N.W.2d at 642. In that case the Iowa Supreme Court concluded the trial court abused its discretion in failing to grant a new trial since a jury's decision failed to effectuate substantial justice between the parties. Id. The facts in Johnson are distinguishable from the case before us. In Johnson the defendant admitted negligence, and the jury failed to award any damages to the plaintiff. The negligence of the plaintiff was not an issue as it is in this case. In Johnson the jury failed to award damages to the plaintiff that he had incurred directly after the accident, even though the defendant had stipulated to the amount of those damages and had not controverted they were proximately caused by the accident. In this case the jury could determine Greenwood's fault following the accident could prevent him from any recovery because of his failure to mitigate damages. The jury in Johnson failed to award uncontested damages, while the jury in this case determined claimant's fault prevented his recovery from any contested damages.
We hold the trial court did not abuse its discretion on this issue. We affirm.
AFFIRMED.