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
- Whether alleged trial errors required a new trial on liability or whether the jury’s liability verdict should stand.
- 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.