## Facts

- Susan Jean Zimmerman suffered a right-knee injury in an automobile collision caused by Willus Myron Ausland, who admitted liability.
- The case was tried to a jury solely on damages.
- Zimmerman testified that, at trial, she continued to experience swelling and pain after walking and could no longer participate in physical education games or play volleyball and tennis as before.
- Zimmerman’s physician diagnosed a torn semilunar cartilage and testified the knee’s probable future was gradual deterioration; he characterized the injury as permanent and stated surgery to remove the torn cartilage was very probable.
- The physician also testified that recovery from such surgery is fairly good and that the outlook for good recovery would be very optimistic.
- On cross-examination, the physician acknowledged he had prescribed no active treatment, surgery is not always required in such cases, and immediate surgery is commonly indicated when the knee is locked or catching.
- The jury returned a $7,500 verdict that included permanent-injury damages, and it received instructions referencing life expectancy based on Standard Mortality Tables.

## Issues

1. Whether the evidence permitted submission to the jury of permanent injury when medical testimony suggested a likely surgery with an optimistic recovery.
2. Whether the trial court erred by instructing on life expectancy and future damages when permanency was disputed.
3. Whether the plaintiff’s failure to undergo surgery barred permanent-injury damages as a matter of law under mitigation principles.

## Decision

- The Oregon Supreme Court affirmed the judgment.
- The court held there was sufficient evidence for the jury to find permanent injury.
- The court held the life-expectancy and future-damages instructions were proper given the evidentiary basis for permanency.
- The court rejected the contention that mitigation-by-surgery principles barred permanent-injury damages as a matter of law on this record.

## Legal Principles

- A plaintiff may not recover permanent-injury damages for harm that could have been avoided by reasonable medical or surgical treatment.
- The reasonableness of submitting to surgery is measured by what an ordinary, prudent person would do under the same circumstances, considering risk, probability of success, and required expense or effort.
- The plaintiff bears the burden to prove permanency; the defendant bears the burden to prove unreasonable failure to mitigate, including unreasonable refusal or delay of surgery.
- Whether refusal of surgery is unreasonable is ordinarily a fact question for the jury; it is taken from the jury only when the record is so clear that no reasonable factfinder could find the plaintiff acted reasonably.
- Where permanency is supported by evidence, mortality tables and life-expectancy instructions may be used to guide assessment of future damages; the possibility of improvement through surgery affects weight and mitigation, not admissibility.

## Conclusion

The court held that evidence of continuing symptoms and expert testimony describing deterioration and permanency allowed the jury to consider permanent injury and future damages, and that the defendant did not establish as a matter of law that a reasonable person would have undergone surgery so as to bar permanent-injury damages.


Zimmerman v. Ausland, 266 Or. 427, 513 P.2d 1167 (Or. 1973)