Wade Clark Mulcahy LLP

In Anthony Rivera v. Elizabeth G. Kolsky, a recent decision from the Second Department helps to clear up the use of the increased susceptibility instruction given by the Supreme Court to the jury.  The case also discussed the standard to be met to secure a jury instruction on failure to mitigate damages.

Anthony Rivera was 30 years old in 2010, when he sustained personal injuries as a result of a motor vehicle accident. The injuries included a fracture of his hip, an injury to his knee and a preexisting back injury that was aggravated as a result of the accident. The Court granted the plaintiff’s motion for summary judgment on the issue of liability and the case proceeded to trial on damages.

Over the defendant’s objection the Supreme Court granted the plaintiff’s request for an increased susceptibility jury instruction and instructed the jury as follows, “The fact that the plaintiff…may have a physical condition that makes him more susceptible to injury than the normal healthy person, does not relive the defendant of liability for all the injuries sustained as a result of her negligence. Defendant is liable even though those injuries are greater than those that would have been sustained by a normal, healthy person under the same circumstances.”  The jury found in favor of plaintiff and award damages of $1,865,305.43, and the defendants appealed.

The defendants argued that the jury instruction prejudiced the jury. The Court found that the increased susceptibility instruction did not refer to any condition specifically and was similar to that of the instruction for aggravation of a preexisting injury. On the issue of aggravation of the preexisting back condition, the jury found in favor of the defendants.  Under these circumstances, the jury instructions did not affect the verdict.

“A party seeking to avail itself of the affirmative defense of failure to mitigate damages must establish that the injured party failed to make diligent efforts to mitigate damages, and the extent to which such efforts would have diminished those damages.” In this matter, the defendants failed to meet that burden, and the Supreme Court therefore declined to instruct the jury on that issue.

This case is relevant to our practice because it clears up the susceptibility instruction and the standard that we must meet to prove that plaintiff did not make diligent efforts to mitigate those damages.