On July 2, 2008, Banter was driving his car and was stopped, waiting to make a left turn, when Sheets, who was in his car and approaching Banter’s car from the rear, made a sudden maneuver and struck the rear of Banter’s car. Banter subsequently sought medical treatment for neck and back pain. Banter filed a complaint alleging Sheets’ negligence and seeking damages. At trial, Sheets conceded his liability in causing the accident, but he argued that Banter failed to mitigate his damages. The jury entered a verdict that apportioned 70% fault to Banter, who then filed a motion to correct error. The trial court granted that motion, finding that the verdict as to the issue of comparative fault is not supported by the evidence, and ordered a new trial. On retrial, the jury again apportioned 70% fault to Banter, who filed another motion to correct error. The trial court denied that motion. This appeal ensued.
Banter contends that he is entitled to a new trial because the jury misunderstood and misapplied the Comparative Fault Act (“the Act”). Under the Act, proportional liability is determined by the fact-finder allocating a percentage of “fault” to the claimant, the defendant, and any nonparty. In assessing percentage of fault, the jury shall consider the fault of all persons who caused or contributed to cause the alleged injury, death, or damage to property . If the claimant’s fault is 50% or less, the fact-finder determines a verdict by multiplying the percentage of fault of each defendant by the total amount of the claimant’s damages. “Fault” is specifically defined to include any act or omission that is negligent, willful, wanton, reckless, or intentional toward the person or property of others.
Here, the trial court instructed the jury in relevant part as follows
The plaintiff must use reasonable care to minimize his damages. This is called mitigation of damages. If you find a plaintiff failed to use reasonable care to minimize any of the damages he alleges he has sustained and that failure was a proximate cause of any of the damages he claims, then such conduct would constitute fault to be assessed against the plaintiff. The defendant has the burden of proving by a preponderance of the evidence that the plaintiff failed to use reasonable care to minimize his damages.
We hold that a portion of this jury instruction is an incorrect statement of the law. The obligation of a plaintiff to mitigate damages customarily refers to the expectation that a person injured should act to minimize damages after an injury-producing incident. This concept is different from our statutory process of assessing percentage of fault which considers the fault of all persons who caused or contributed to cause the alleged injury, death, or damage to property. The failure to minimize damages does not bar the remedy, but goes only to the amount of damages recoverable. The trial court erroneously instructed the jury that if it found that Banter failed to mitigate his damages, such conduct would constitute fault to be assessed against Banter. Because Sheets conceded liability, the only issue for the jury to determine was the amount of Banter’s damages, and there was no basis for any assessment of fault against Banter. We reverse and remand for a new trial, and the jury shall be instructed in relevant part that Sheets has conceded 100% fault in causing the accident and that the jury shall only determine the amount of Banter’s damages, if any. 991 N.E.2d 981