## Facts

- Tere Albert tripped and fell on a raised sidewalk section in front of commercial premises owned by Monarch Federal Savings and Loan Association.
- Albert’s most serious claimed injury was carpal tunnel syndrome in her right wrist.
- Albert’s treating physician recommended carpal tunnel surgery; testimony indicated the surgery generally succeeds but can fail or worsen symptoms.
- Albert chose not to undergo the recommended surgery.
- Albert and her husband sued for negligence; the municipal defendants were dismissed before trial, leaving Monarch as the sole defendant at trial.
- The jury found Albert 30% comparatively negligent and Monarch 70% negligent, awarding $50,000 in damages.
- The court molded the verdict to $35,000 plus prejudgment interest and instructed the jury on mitigation of damages based on Albert’s refusal to have surgery.
- Albert appealed only the mitigation instruction and the adequacy of the damages award.

## Issues

1. Whether the trial court erred by instructing the jury that Albert had a duty to mitigate damages by undergoing recommended carpal tunnel surgery, despite the lack of guaranteed success.
2. Whether the damages award (and denial of a new trial on damages) was against the weight of the evidence and constituted a miscarriage of justice.

## Decision

- The Appellate Division affirmed the judgment.
- The court held the mitigation instruction was supported by the evidence and properly submitted the reasonableness of refusing surgery to the jury.
- The court held the $50,000 award (molded to $35,000 due to comparative negligence) did not shock the conscience and was not a miscarriage of justice.

## Legal Principles

- An injured plaintiff must exercise ordinary care to obtain reasonable medical or surgical treatment to minimize damages; refusal may bar recovery for harm that could have been avoided through such care.
- Mitigation does not require certainty of cure; the question is whether a reasonable person would accept the proposed treatment under the circumstances, considering risks and likely benefits.
- Whether refusal of recommended surgery is reasonable is typically a fact question for the jury when supported by competent medical testimony.
- A damages verdict should not be disturbed on appeal unless it clearly indicates a miscarriage of justice, including a result that shocks the judicial conscience.

## Conclusion

The court upheld a mitigation-of-damages instruction allowing the jury to reduce recoverable damages based on a plaintiff’s unreasonable refusal of generally successful, non-experimental surgery, and it declined to order a new damages trial because the verdict was supported by the evidence and did not constitute a miscarriage of justice.


Albert v. Monarch Fed. Sav. & Loan Ass’n, 327 N.J. Super. 462, 743 A.2d 890 (App. Div. 2000)