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Zimmerman v. Ausland | 513 P.2d 1167 (1973)

An injured plaintiff has a duty to mitigate, meaning avoid or reduce, the amount of damages if feasible. A plaintiff who doesn’t mitigate may not recover all losses resulting from the defendant’s actions. However, Zimmerman versus Ausland illustrates that the duty to mitigate isn’t absolute.

Willus Ausland caused Susan Zimmerman’s knee injury in a car accident. Zimmerman sued Ausland, who admitted liability. So, the only issue before the court was damages. Zimmerman testified that her knee still became swollen and painful when she walked. And as a substitute physical-education teacher, she couldn’t participate with her students in games and sports as she did before the accident. Zimmerman’s doctor testified that she had torn cartilage, that the injury was permanent, and that she’d probably need surgery in the future to remove the torn cartilage.

Zimmerman’s doctor also stated that he hadn’t prescribed any treatment for her and that surgery wasn’t always required. Ausland’s medical expert testified that torn cartilage should be surgically removed and that afterwards a patient would fully recover and resume normal activities. But Ausland’s medical expert didn’t agree that Zimmerman had torn cartilage and stated that further examination was needed before prescribing surgery.

Before deliberations, the judge instructed the jury to determine whether Zimmerman sustained a permanent injury. The jury then awarded Zimmerman seventy-five hundred dollars in permanent-injury damages. Ausland appealed to the Oregon Supreme Court, arguing that the trial court should’ve ruled as a matter of law that Zimmerman’s injury wasn’t permanent because she didn’t have surgery that would’ve mitigated it.

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