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Bullington v. Barela.

2024 COA 56. No. 23CA0364. Personal Injury—Civil Jury Instructions—Affirmative Defenses—Failure to Mitigate Damages.

May 23, 2024

In 2016, Barela’s car struck Bullington’s car in a low-speed rear-end collision when Bullington was seven months pregnant. Bullington reported to doctors that she had neck pain and headaches as a result of the accident, but her treatment options were limited by her pregnancy at the time of the accident and two subsequent pregnancies in 2018 and 2020. Bullington sued Barela in 2019, asserting claims for negligence and negligence per se. During the jury instruction conference, Bullington’s counsel objected to a proposed instruction on the affirmative defense of failure to mitigate damages, arguing that there was no evidence to support it. The court overruled the objection, finding that Bullington’s decision to get pregnant twice after the accident was voluntary, so the jury could consider it as evidence of her failure to mitigate because the facts that she was pregnant and nursing delayed her treatment. The jury awarded Bullington $23,638 in economic damages, $0 in noneconomic damages, and $0 in physical impairment damages. The verdict form did not contain a specific interrogatory relating to failure to mitigate damages.

On appeal, Bullington argued that the district court reversibly erred because there was no evidence that she failed to take reasonable steps to mitigate her damages. A plaintiff may not recover damages for injuries that the plaintiff might reasonably have avoided, but a plaintiff is not required to take unreasonable measures to mitigate damages. Here, the district court appeared to base its ruling on a finding that Bullington was unable to receive certain injections for pain because she voluntarily elected to get pregnant. However, no competent record evidence supports this finding. Further, under the case facts, as a matter of law a personal injury plaintiff’s duty to mitigate damages cannot require the plaintiff to terminate a pregnancy nor require her to forgo breastfeeding. Accordingly, the district court erred by finding that the delay in Bullington’s treatment while she was pregnant and nursing could be considered evidence of her failure to mitigate damages. And because the jury’s verdict was based in part on a conclusion that Bullington failed to mitigate her damages, the error was prejudicial.

The judgment was reversed and the case was remanded for a new trial on damages.


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