## Facts

- Bruce Lobermeier was using a residential telephone in his parents’ home during a thunderstorm when an electrical charge associated with lightning reached the receiver, singed his hair, and ruptured his eardrum, causing hearing loss.
- The telephone equipment and outside grounding system were installed and maintained by General Telephone Company of Wisconsin.
- Lobermeier alleged negligent grounding allowed lightning-induced electricity to travel through the telephone and cause his injury; the defense disputed the path of the current and suggested alternative sources.
- Lobermeier received conservative medical treatment for several months; an otologist later performed a tympanoplasty (surgical grafting over the eardrum).
- His condition was not fully corrected, and physicians recommended a second surgery with a substantial prospect of improvement.
- The circuit court excluded evidence and argument that Lobermeier unreasonably refused the second surgery and thereby failed to mitigate damages, ruling as a matter of law that he had no duty to undergo additional surgery.
- A jury found General Telephone liable and awarded damages; the court of appeals reversed and ordered a new trial on liability and damages.

## Issues

1. Whether alleged trial errors required a new trial on liability or whether the jury’s liability verdict should stand.
2. Whether the trial court erred by removing from the jury the mitigation-of-damages question concerning Lobermeier’s refusal to undergo a second recommended surgery.

## Decision

- The Wisconsin Supreme Court reversed the court of appeals insofar as it ordered a new trial on liability and reinstated the jury’s liability determination.
- The Court held the asserted trial errors did not warrant a new trial on liability.
- The Court held the trial court erred by deciding, as a matter of law, that Lobermeier had no duty to mitigate damages by undergoing additional surgery.
- The Court affirmed the need for a retrial limited to damages and remanded for a new trial on damages only to allow the jury to consider mitigation evidence related to the proposed second surgery.

## Legal Principles

- A tort plaintiff must take reasonable steps to minimize damages after an injury; unreasonable failure to do so may reduce recoverable damages.
- Whether a plaintiff acted reasonably in refusing medical or surgical treatment offered to mitigate harm ordinarily presents a question of fact for the jury.
- There is no categorical rule that a plaintiff is never required to submit to surgery to mitigate damages; reasonableness depends on the circumstances, including risks, likelihood of success, and the plaintiff’s situation.
- Mitigation related to proposed medical treatment affects the amount of damages, not the underlying finding of liability.

## Conclusion

The court left intact the jury’s finding that negligent grounding by the telephone company caused the lightning-related injury, but required a new trial on damages because the reasonableness of the plaintiff’s refusal to undergo a second surgery is for the jury to decide under a fact-specific mitigation standard.


Lobermeier v. General Tel. Co. of Wis., 119 Wis. 2d 129, 349 N.W.2d 466 (Wis. 1984)