INCREASED SUSCEPTIBILITY TO INJURY JURY INSTRUCTION DID NOT AFFECT THE VERDICT, NO DUTY TO MITIGATE DAMAGES BY LOSING WEIGHT, REQUEST FOR MITIGATION OF DAMAGES JURY INSTRUCTION PROPERLY DENIED (SECOND DEPT).

he Second Department, in affirming a $1.8 million verdict in this car accident case, determined that the increased susceptibility to injury jury instruction did not affect the verdict so it didn’t discuss the propriety of the instruction. The Second Department also determined that defendants were not entitled to a duty to mitigate instruction based upon plaintiff’s failure to lose weight:

The defendants contend that the instructions on increased susceptibility prejudiced them because, based upon those instructions, the jury could find that the plaintiff’s apparent predisposition to obesity rendered him more susceptible to pain and suffering from his injuries. Increased susceptibility to injury “must be affirmatively pleaded and proven before recovery therefor can be allowed” …  In this case, the plaintiff alleged that the accident aggravated a preexisting back injury, indicating an increased susceptibility to an aggravated back injury.

The increased susceptibility instruction given by the Supreme Court did not refer to any condition. The pattern jury instruction for aggravation of a preexisting injury provides that “the plaintiff is entitled to recover for any (increased) disability or pain resulting from” the aggravation of a preexisting injury or condition where the aggravation was caused by the accident (PJI 2:282). This charge is somewhat similar to the increased susceptibility charge, which instructs the jury that “[t]he fact that the plaintiff may have a physical or mental condition that makes [him or her] more susceptible to injury than a normal healthy person does not relieve the defendant[s] of liability for all injuries sustained as a result of [their] negligence” (PJI 2:283). On the issue of aggravation of the preexisting back condition, the jury found in favor of the defendants, and therefore did not award any damages based upon an increased susceptibility to an aggravated back injury. Thus, under the circumstances of this case, the jury instructions did not affect the verdict.

We … agree with the Supreme Court’s determination to decline to instruct the jury with respect to the plaintiff’s duty to mitigate damages by losing weight. “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 its damages, and the extent to which such efforts would have diminished those damages” … . The defendants failed to meet that burden. The plaintiff’s expert orthopedic surgeon testified that the plaintiff’s decision whether to have bariatric surgery to facilitate weight loss was “a personal decision.” The plaintiff’s expert further testified that the plaintiff’s obesity did not change the need for knee and hip replacements, as “the dye [sic] was cast the minute that this injury occurred.” The trial evidence established that the plaintiff complied with medical directives for physical therapy in an effort to mitigate damages, and there was no evidence presented that his damages would have been less if he had more actively participated in physical therapy. People v Kolsky, 2018 NY Slip Op 05713, Second Dept 8-8-18  [Note that the name of this case probably should be Rivera v Kolsky. “People” v Kolsky is how the case was (mis)named when the decision was first released.]

NEGLIGENCE (INCREASED SUSCEPTIBILITY TO INJURY JURY INSTRUCTION DID NOT AFFECT THE VERDICT, NO DUTY TO MITIGATE DAMAGES BY LOSING WEIGHT, REQUEST FOR MITIGATION OF DAMAGES JURY INSTRUCTION PROPERLY DENIED (SECOND DEPT))/JURY INSTRUCTIONS (DAMAGES, INCREASED SUSCEPTIBILITY TO INJURY JURY INSTRUCTION DID NOT AFFECT THE VERDICT, NO DUTY TO MITIGATE DAMAGES BY LOSING WEIGHT, REQUEST FOR MITIGATION OF DAMAGES JURY INSTRUCTION PROPERLY DENIED (SECOND DEPT))/DAMAGES (NEGLIGENCE, (INCREASED SUSCEPTIBILITY TO INJURY JURY INSTRUCTION DID NOT AFFECT THE VERDICT, NO DUTY TO MITIGATE DAMAGES BY LOSING WEIGHT, REQUEST FOR MITIGATION OF DAMAGES JURY INSTRUCTION PROPERLY DENIED (SECOND DEPT))/TRAFFIC ACCIDENTS (DAMAGES, INCREASED SUSCEPTIBILITY TO INJURY JURY INSTRUCTION DID NOT AFFECT THE VERDICT, NO DUTY TO MITIGATE DAMAGES BY LOSING WEIGHT, REQUEST FOR MITIGATION OF DAMAGES JURY INSTRUCTION PROPERLY DENIED (SECOND DEPT))