## Facts

- In July 1996, Paul J. Novko, a self-employed dairy farmer, was stopped at a red light when his vehicle was rear-ended by a State Trooper’s patrol car.
- Novko suffered a thoracic spine injury: an accident-aggravated degenerative disc condition at T7–T8 causing significant limitation of thoracic-spine use.
- After the collision, Novko remained in dairy farming but changed how he worked to reduce strain, including altering storage and baling systems, remodeling farm buildings, hiring additional employees, and shifting toward management duties.
- Novko and his spouse, Michelle J. Novko, brought claims against the State seeking damages for past and future pain and suffering, loss of earning capacity, and a derivative claim for the spouse.

## Issues

1. Whether the trial court misapplied the mitigation-of-damages doctrine by limiting pain-and-suffering recovery to the period ending in spring 1997 based on the view that Novko should have left dairy farming for less physically demanding work.
2. Whether the evidence supported an award for loss of earning capacity, including expert testimony offering generalized economic projections.

## Decision

- The appellate court modified the judgment by reversing the temporal limitation that restricted pain-and-suffering and derivative damages to the period from the accident through spring 1997.
- The court remitted for a new trial limited to determining damages for Paul Novko’s past and future pain and suffering and Michelle Novko’s derivative claim.
- The court affirmed the denial of damages for loss of earning capacity.
- The State’s liability for the collision and the finding of a serious injury (significant limitation) remained undisturbed.

## Legal Principles

- Mitigation of damages requires reasonable post-injury efforts to reduce harm; it generally does not require an injured plaintiff to abandon a long-standing occupation or fundamentally change lifestyle when reasonable adjustments within the occupation have been made.
- A proposed alternative job cannot support a mitigation cutoff where the claimed reduction in symptoms or damages is speculative and not supported by reliable medical or vocational proof.
- A court may not treat post-injury pain as “self-inflicted” merely because the plaintiff continues working in the same field with reasonable modifications.
- Loss-of-earning-capacity damages must be proven with non-speculative evidence tied to the claimant’s actual work and economic circumstances; generalized earnings/work-life assumptions may be insufficient.

## Conclusion

The court held that mitigation did not justify ending pain-and-suffering damages based on Novko’s decision to continue dairy farming with substantial work modifications, and it ordered a new trial on pain-and-suffering and derivative damages while upholding the denial of loss-of-earning-capacity damages for lack of reliable, non-speculative proof.


Novko v. State, 285 A.D.2d 696, 728 N.Y.S.2d 259 (3d Dep’t 2001)