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352-281484-15
FILED
TARRANT COUNTY
CAUSE NO. 352-281484-15 9/28/2018 9:40 AM
THOMAS A. WILDER
DISTRICT CLERK
MILLICENT EDWARD, § IN THE DISTRICT COURT
PLAINTIFF, §
§
VS. § 352ND JUDICIAL DISTRICT
§
§
LYNN SMITH CHEVROLET, §
DEFENDANT. § TARRANT COUNTY, TEXAS
DEFENDANT’S TRIAL BRIEF IN SUPPORT OF
MITIGATION OF DAMAGES INSTRUCTION
TO THE HONORABLE JUDGE OF SAID COURT:
Defendant files its Trial Brief on Mitigation of Damages and requests such an instruction be
included in the jury charge of this matter.
I.
The mitigation of damages doctrine requires an injured party to exercise reasonable care to
minimize its damages, if the damages can be avoided with only slight expense and reasonable effort.
Young v.Thota, M.D., 271 S.W.3d 822, 829–31 (Tex.App.-Fort Worth 2008, no pet. h.) (mitigation
instruction proper if patient failed to follow post-admission instructions); Harris County v. Smoker, 934
S.W.2d 714, 721 (Tex.App.-Houston [1st Dist.] 1996, writ denied) (citing Great Am. Ins. Co. v. North
Austin Mun. Util. Dist. No. 1, 908 S.W.2d 415, 426 (Tex.1995). This doctrine is typically applied to a
post-occurrence action, such as when a plaintiff fails to follow his doctor's treatment instructions. See,
e.g.,Moulton v. Alamo Ambulance Serv., Inc.,414 S.W.2d 444, 447 (Tex.1967) (“We recognize the
universality of the rule that an injured person cannot recover damages which can be avoided by that
care and treatment of his injury which an ordinary prudent person would exercise in the same or
similar circumstances....”).
In Moulton v. Alamo Ambulance Serv., Inc., the Texas Supreme Court noted that an instruction
on mitigation of damages is appropriate when there is evidence of negligence on the part of a plaintiff
DEFENDANT’S TRIAL BRIEF ON MITIGATION OF DAMAGES PAGE 1
in: (1) not consulting a doctor; (2) not consulting a doctor as soon as a reasonable person would; (3)
not following a doctor's advice; or (4) not properly caring for and treating injuries that do not require
the attention of a doctor. Moulton v. Alamo Ambulance Serv., Inc.,, 414 S.W.2d 444, 450 (Tex.1967).
In Elbaor v. Smith, the Texas Supreme Court stated, “the unusual act of refusing to take
antibiotics, which a medical doctor has prescribed to preserve a patient's health, plainly may cause
harm. Additionally, itbreaches a duty of cooperation which patients owe treating physicians who
assume the duty to care for them.”). Elbaor v. Smith 845 S.W.2d 240, 245 (Tex.1992) (A plaintiff's
failure to follow doctor's orders post-accident entitles defendant to mitigation instruction.) The Elbaor
Court further noted that, “A trial court may refuse to submit an instruction only if no evidence exists
to warrant its submission.” Id.; see also Tex. R. Civ. P. 277, 278.
II.
PRAYER
BASED ON THE FOREGOING, Defendant prays that the Court include a mitigation of
damages instruction in the jury charge based on Plaintiff’s failure to follow her doctor's orders post-
accident. Respectfully Submitted,
AYIK & ASSOCIATES
/s/ Micah P. Pardun
__________________________________
MICAH P. PARDUN
Texas Bar No. 24041643
E-Mail: mpardun@travelers.com
Mailing Address:
P.O. Box 64093
St. Paul, MN 55164-0093
Physical Address:
1301 E. Collins Blvd., Suite 490
Richardson, Texas 75081
Direct Telephone: 214-570-6245
Main Telephone: 214-570-6300
Direct Facsimile: 855-748-3821
ESERVICE Email: eservdall@travelers.com
ATTORNEYS FOR DEFENDANT
DEFENDANT’S TRIAL BRIEF ON MITIGATION OF DAMAGES PAGE 2
CERTIFICATE OF SERVICE
This is to certify that, on this the 28th day of September, 2018, a true and correct copy of the
foregoing document was forwarded to all counsel of record as follows:
Chad Eaton ____ Hand Delivery
Rolle Law ____ Facsimile
2030 Main Street, Suite 200 ____ Certified Mail, Return Receipt Requested
Dallas, Texas 75201 ____ Receipted Commercial Delivery
Facsimile 214-637-6872 ____ Regular U.S. Mai
E-Mail: dianas@rbrl.com _xx_ Served Electronically
Attorney for Plaintiff, Millicent Edward
/s/ Micah P. Pardun
_______________________________________
Micah P. Pardun
DEFENDANT’S TRIAL BRIEF ON MITIGATION OF DAMAGES PAGE 3
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352-281484-15 FILED TARRANT COUNTY CAUSE NO. 352-281484-15 9/28/2018 9:40 AM THOMAS A. WILDER DISTRICT CLERK MILLICENT EDWARD, § IN THE DISTRICT COURT PLAINTIFF, § § VS. § 352ND JUDICIAL DISTRICT § § LYNN SMITH CHEVROLET, § DEFENDANT. § TARRANT COUNTY, TEXAS DEFENDANT’S TRIAL BRIEF IN SUPPORT OF MITIGATION OF DAMAGES INSTRUCTION TO THE HONORABLE JUDGE OF SAID COURT: Defendant files its Trial Brief on Mitigation of Damages and requests such an instruction be included in the jury charge of this matter. I. The mitigation of damages doctrine requires an injured party to exercise reasonable care to minimize its damages, if the damages can be avoided with only slight expense and reasonable effort. Young v.Thota, M.D., 271 S.W.3d 822, 829–31 (Tex.App.-Fort Worth 2008, no pet. h.) (mitigation instruction proper if patient failed to follow post-admission instructions); Harris County v. Smoker, 934 S.W.2d 714, 721 (Tex.App.-Houston [1st Dist.] 1996, writ denied) (citing Great Am. Ins. Co. v. North Austin Mun. Util. Dist. No. 1, 908 S.W.2d 415, 426 (Tex.1995). This doctrine is typically applied to a post-occurrence action, such as when a plaintiff fails to follow his doctor's treatment instructions. See, e.g.,Moulton v. Alamo Ambulance Serv., Inc.,414 S.W.2d 444, 447 (Tex.1967) (“We recognize the universality of the rule that an injured person cannot recover damages which can be avoided by that care and treatment of his injury which an ordinary prudent person would exercise in the same or similar circumstances....”). In Moulton v. Alamo Ambulance Serv., Inc., the Texas Supreme Court noted that an instruction on mitigation of damages is appropriate when there is evidence of negligence on the part of a plaintiff DEFENDANT’S TRIAL BRIEF ON MITIGATION OF DAMAGES PAGE 1 in: (1) not consulting a doctor; (2) not consulting a doctor as soon as a reasonable person would; (3) not following a doctor's advice; or (4) not properly caring for and treating injuries that do not require the attention of a doctor. Moulton v. Alamo Ambulance Serv., Inc.,, 414 S.W.2d 444, 450 (Tex.1967). In Elbaor v. Smith, the Texas Supreme Court stated, “the unusual act of refusing to take antibiotics, which a medical doctor has prescribed to preserve a patient's health, plainly may cause harm. Additionally, itbreaches a duty of cooperation which patients owe treating physicians who assume the duty to care for them.”). Elbaor v. Smith 845 S.W.2d 240, 245 (Tex.1992) (A plaintiff's failure to follow doctor's orders post-accident entitles defendant to mitigation instruction.) The Elbaor Court further noted that, “A trial court may refuse to submit an instruction only if no evidence exists to warrant its submission.” Id.; see also Tex. R. Civ. P. 277, 278. II. PRAYER BASED ON THE FOREGOING, Defendant prays that the Court include a mitigation of damages instruction in the jury charge based on Plaintiff’s failure to follow her doctor's orders post- accident. Respectfully Submitted, AYIK & ASSOCIATES /s/ Micah P. Pardun __________________________________ MICAH P. PARDUN Texas Bar No. 24041643 E-Mail: mpardun@travelers.com Mailing Address: P.O. Box 64093 St. Paul, MN 55164-0093 Physical Address: 1301 E. Collins Blvd., Suite 490 Richardson, Texas 75081 Direct Telephone: 214-570-6245 Main Telephone: 214-570-6300 Direct Facsimile: 855-748-3821 ESERVICE Email: eservdall@travelers.com ATTORNEYS FOR DEFENDANT DEFENDANT’S TRIAL BRIEF ON MITIGATION OF DAMAGES PAGE 2 CERTIFICATE OF SERVICE This is to certify that, on this the 28th day of September, 2018, a true and correct copy of the foregoing document was forwarded to all counsel of record as follows: Chad Eaton ____ Hand Delivery Rolle Law ____ Facsimile 2030 Main Street, Suite 200 ____ Certified Mail, Return Receipt Requested Dallas, Texas 75201 ____ Receipted Commercial Delivery Facsimile 214-637-6872 ____ Regular U.S. Mai E-Mail: dianas@rbrl.com _xx_ Served Electronically Attorney for Plaintiff, Millicent Edward /s/ Micah P. Pardun _______________________________________ Micah P. Pardun DEFENDANT’S TRIAL BRIEF ON MITIGATION OF DAMAGES PAGE 3