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Preston v. Keith

Court of Appeals of Connecticut

February 13, 1990

Rebecca PRESTON et al.
v.
Anthony J. KEITH et al.

Argued Dec. 12, 1989.

Certiorari Granted March 28, 1990.

Page 215

Terence S. Hawkins, New Haven, with whom, on the brief, was Philip M. Schulz, Middletown, for appellants (plaintiffs).

William J. Melley III, Hartford, for appellees (defendants).

Before DALY, NORCOTT and FOTI, JJ.

[20 Conn.App. 657] NORCOTT, Judge.

The named plaintiff, Rebecca Preston, sued the defendants for personal injuries incurred as a result of an automobile accident allegedly caused by the defendant Anthony Keith's negligence. [1] The jury found that the plaintiff was 50 percent contributorily negligent and returned a verdict in favor of the plaintiff[20 Conn.App. 658] in the amount of $5593.50. Thereafter, the plaintiff made motions for additur, to set aside the verdict and for a new trial. The trial court denied all of the plaintiff's motions and this appeal ensued.

On appeal, the plaintiff claims that the trial court erred (1) in instructing the jury on the issue of the plaintiff's failure to mitigate damages where the evidence did not support such an instruction, and (2) if the evidence did warrant such a charge, in giving a fatally defective charge as to that issue. We find error in part.

The plaintiff first argues that the trial court erred in instructing the jury on the issue of failure to mitigate damages because there was insufficient evidence on that issue. We disagree. [2]

The jury could reasonably have found the following facts. The plaintiff, a thirty-seven year old woman, had been a bus driver for Clark's Transportation since 1980. In 1982, she was first involved in a motor vehicle accident as she was operating

Page 216

a school bus. She suffered no serious physical injury as a result of that accident [20 Conn.App. 659] and received minimal medical attention. On February 7, 1985, she was involved in another motor vehicle accident, which resulted in a lower back sprain. The plaintiff was treated by an orthopedic surgeon, Christopher Glenney, who referred her to Frank N. Maroski, a physical therapist, for general muscle therapy for her back. Glenney's concern as to "the best course to take" with the plaintiff was to get her "into a program where she was exercised and where she improved her general physical fitness, where she improved the muscle strength and the mobility of her spine and her lower extremities...." By early May, 1985, Glenney considered her capable of returning to work on a trial basis.

The accident that is the subject of the present appeal occurred on May 15, 1985, when the plaintiff's school bus and the defendant's car collided. Glenney diagnosed a reinjury of the plaintiff's lower back. The plaintiff, again, stayed out of work and returned to physical therapy three times per week.

The evidence adduced at trial clearly showed that the plaintiff's recommended physical therapy included a regimen of exercises, as well as attendance at lectures regarding proper postural mechanics. The record also reflects that the jury had Before it abundant evidence from which it could have concluded that the plaintiff did not fully follow her therapist's directions. [3] Furthermore, in response to questions regarding the recommended extent of her physical therapy, the plaintiff, at one point, agreed that she was not completely complying with the therapist's recommendations, and, at another, she could not recall instances of her noncompliance[20 Conn.App. 660] with the therapist's recommended treatment. [4] "It is the province of the jury to determine the credibility of the witnesses and the weight to be accorded their testimony. Kubeck v. Foremost Foods Co., 179 Conn. 486, 487, 427 A.2d 391 (1980)." Trzcinski v. Richey, 190 Conn. 285, 298, 460 A.2d 1269 (1983). We conclude that the evidence in this record was sufficient to warrant the trial court's decision to instruct the jury on the plaintiff's failure to mitigate damages.

The plaintiff next argues that even if there was sufficient evidence to warrant the challenged instruction, the instruction as given by the trial court was fatally defective and constitutes reversible error. The essence of the plaintiff's claim is that the court erred in failing to address "proximate cause" and the allocation of proof in its charge on the failure to mitigate damages. We agree.

We first note that the defendant urges us to decline review of this claim because of the plaintiff's failure to preserve it below. [5] The defendant correctly points out that the plaintiff's exception to the charge at trial [20 Conn.App. 661] addressed only the

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alleged lack of evidence to support an instruction on the failure to mitigate damages. [6] The defendant contends that the claim regarding the form of the instruction was not raised ...


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