Indiana Supreme Court Clarifies Mitigation of Damages Defense in Comparative Fault Act

July 2005

Recently, the Indiana Supreme Court addressed the mitigation of damages defense in Indiana’s Comparative Fault Act (“Act”) in the case of Kocher v. Getz, 824 N.E.2d 671 (Ind. 2005). The Court clarified that there is a temporal distinction between acts to be considered in fault allocation under the Act and acts that merely affect the calculation of recoverable damages. This case is also significant because of the “safety goggles” example the Court uses in its discussion, which could possibly be extended to other types of safety devices or restraints. The opinion gives the practitioner and the product manufacturer guidance on the defense of mitigation of damages.

Plaintiff Getz was operating a vehicle that was struck by a vehicle driven by defendant Kocher. Getz suffered injuries and sued Kocher, alleging that Kocher failed to yield the right-of-way. Kocher admitted liability but denied that the collision caused significant injury or damages to Getz. Kocher asserted that Getz failed to mitigate her damages by making insufficient efforts to find part-type employment after the collision.

The trial court refused Kocher’s tendered instructions under which the jury would have been permitted to consider mitigation of damages for purposes of fault allocation under the Act. The trial court did instruct the jury that Kocher claimed Getz’s “failure to mitigate her damages should reduce or preclude [her] recovery of damages” and that “[p]ersons claiming injury as a result of wrongs of others must use reasonable care, commensurate with their age and experience, to mitigate or minimize the damages resulting from a wrong, and not to enhance such damages.” Kocher, 824 N.E.2d at 673. The jury found for Getz. The Indiana Supreme Court later affirmed the trial court.

The Indiana Supreme Court framed the issue as whether the defense of mitigation of damages is always considered in determining liability under the Act. The Court noted that under the Act, liability is determined by the fact-finder allocating a percentage of fault to the claimant, the defendant(s) and any nonparty. In assessing a percentage of fault under the Act, the fact-finder “‘shall consider the fault of all persons who caused or contributed to cause the alleged injury….’” Kocher, 824 N.E.2d at 673 (quoting Ind. Code §§ 34-6-2-7, -8). If the claimant’s fault is 50% or less, the fact-finder determines the verdict by multiplying the percentage of fault of each defendant by the total amount of the claimant’s damages. If the claimant’s fault is greater than 50%, his recovery is barred. “Fault” is specifically defined in the Act as “‘any act or omission that is negligent, willful, wanton, reckless, or intentional toward the person or property of others.’” Id. (quoting Ind. Code § 34-6-2-45(b)). Fault “‘also includes…unreasonable failure to avoid an injury or to mitigate damages.’” Id.

In examining the mitigation of damages portion of the definition of fault, the Court relied on the reasoning of an Indiana Court of Appeals case, Deible v. Poole, 691 N.E.2d 1313 (Ind. Ct. App.), op. expressly adopted, 702 N.E.2d 1076 (Ind. 1998). The Court explained that in Deible the defendant did not dispute the cause of a vehicle collision but challenged the extent of plaintiff’s damages. The issue before the court was identical, namely, whether the mitigation of damages defense is considered as comparative fault in the liability determination. In Deible, the court stated that the failure to mitigate damages “goes only to the amount of damages recoverable.” Kocher, 824 N.E.2d at 674 (quoting Deible, 691 N.E.2d at 1316). The Court noted that the definition of “fault” under the Act is the same now as it was when considered by the Courts in Deible. However, the Court recognized that a temporal distinction regarding mitigation of damages surfaced in Deible.

Based on this temporal distinction, the Court provided that the phrase “unreasonable failure to avoid injury or to mitigate damages” included in the definition of “fault” under the Act applies only to a plaintiff’s conduct before an accident or initial injury. Kocher, 824 N.E.2d at 674. Conversely, a defense of mitigation of damages based on a plaintiff’s acts or omissions occurring after an accident or initial injury is not properly included in the determination and allocation of “fault” under the Act but would go to the amount of damages recoverable. Kocher, 824 N.E.2d at 674. In other words, if the act of the injured party does not operate to cause the injury but merely adds to the ensuing damages, the act should not be considered in fault allocation, but is a defense to the amount of damages a plaintiff is entitled to recover, if any, after fault has been allocated. The Court stated that the trial court’s refusal of Kocher’s tendered instructions was consistent with Deible.

The Court also supplied an interesting example of what would be considered “mitigation of damages” for purposes of allocating “fault” under the Act. The Court noted that if a claimant fails to wear safety goggles while operating machinery that presents a substantial risk of eye damages, such failure would constitute proper pre-incident mitigation of damages that could be used in the allocation of fault. Kocher, 824 N.E.2d at 674. The example used by the Court is significant because it supports the proposition that a plaintiff’s failure to use proper safety devices before an accident occurs will not just reduce the amount of damages that could be recovered but could also be used to allocate fault back to the plaintiff thereby increasing the possibility of a complete defense verdict.

This case provides a good clarification of the mitigation of damages defense under Indiana’s Comparative Fault Act and should be of value to product manufacturers faced with litigation.

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