Zimmerman v. Ausland Case Brief

Summary of Zimmerman v. Ausland, S. Ct OR [1973]

Personal Injuries

Relevant Facts: PlZimmerman, suffered torn cartilage in her knee as a result of an automobile accident caused by the negligence of the DF Ausland. Pl obtained a jury verdict of $7500 which included damages for a permanent injury, b/c she could not engage in strenuous activities any longer. Pl had not undergone surgery, and Df’s expert stated with surgery she could recover completely.

Legal Issue(s): Whether PL who had suffered a permanent injury to her knee which interfered with her normal and usual activities, including those related to her work as a substitute teacher, should have as a R P submitted to surgery in an attempt to minimize injury; and failing to do so whether she was barred from claiming damages for a permanent injury to her knee as matters of law for the ct to decide? Whether the ct erred in submitting those questions to jury under proper instructions which included information as to mortality rates?

Court’s Holding: No it was not so clear to make it proper as a matter of law, and the ct did NOT err in submtting these were questions to the jury, despite Dfs failure to raise at trial.

Procedure: Df admitted liability, and after issue of damages was submitted to jury, Judge entered judgment on verdict for plaintiff in amount of $7,500, and Df appealed. Sup Ct Affirmed.

Law or Rule(s): A Pl 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 R P would do so under same circum.

Court Rationale: Df did not request an instruction on mitigation of damages, with the result being that this question was not submitted. There must be evidence relating to the extent of the risk involved in a particular type of surgical operation before a jury may properly consider whether the PL acted reasonably in declining to submit to a surgical operation. No case has been cited which it has been held that Pl with torn cartilage in the knee must submit to surgery or be barred as a matter of law. Under the facts and circumstances the evidence is not so clear and conclusive as to make it proper for the court to decide those questions as a matter of law. The testimony was offered by Pl from which, if believed by the jury, it could properly find that PL has suffered a permanent injury, and one which interferes w/ her normal and usual activities.

Plaintiff’s Argument: There was no evidence that either the Pl or a RP would have submitted to surgery in order to mitigate damages resulting from torn cartilage of the knee.

Defendant’s Argument: Pl was required to submit to surgery, which would have completely restored her knee, thus reducing the damages. The court could have decided that issue as a matter of law.

TEST: In determining whether a PL has unreasonably failed or refused to mitigate his damages by submitting to a surgical operation is whether, under the circumstances of the case, an ordinarily prudent person would do so; i.e. the duty to exercise reasonable care under the circumstances.

If, under the circumstances a RPP might decline to undergo surgical operation, a failure to do so imposes no disability against recovering full damages.


1) The Risk involved (Hazard of the operation); 2) the probability of success; 3) the expenditure of money or effort required; and some cts look at 4) the pain involved.

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