Zimmerman v. Ausland

266 Or. 427, 513 P.2d 1167 (1973)

One-Sentence Takeaway: The plaintiff in a personal injury case cannot claim damages for what would otherwise be a permanent injury if the permanency of the injury could have been avoided by submitting to treatment by a physician, including possible surgery, when a reasonable person would do so under the same circumstances.

Summary:  Plaintiff was involved in an automobile accident and she was awarded damages for permanent injury to her knee.  Defendant argued on appeal that Plaintiff should as a matter of law have been required to submit to surgery for her knee or else be precluded from claiming damages for permanent injuries.

The Oregon Supreme Court court held that there was no evidence that Plaintiff had ever been advised by any doctor that she should subject herself to knee surgery. It found the burden of proof of unreasonable refusal to mitigate damages to be on Defendant and stated that the question whether Plaintiff should have submitted to a knee operation depended on whether a reasonably prudent person would have done so.

The Court explained, “[i]n considering whether plaintiff is required to mitigate her damages by submitting to surgery we must bear in mind that while plaintiff has the burden of proof that her injury is a permanent injury, defendant has the burden of proving that plaintiff unreasonably failed to mitigate her damages by submission to surgery.”  The Court further explained that the factors to consider whether a reasonable person in Plaintiff’s place would have submitted to the surgery include “the risk involved (i.e., the hazardous nature of the operation), the probability of success, and the expenditure of money or effort required. Some courts also consider the pain involved as a factor.”