Trial Court Erroneously Instructed on Failure to Mitigate; Humphrey v. Tuck

Litigators must always be mindful of jury instructions, as they let the ultimate factfinder know what needs to be proven at trial. Therefore, the instructions given need to be based in the evidence. This case helps define what kind of evidence can support an instruction for failure to mitigate.

Humphrey was driving on I-65 when his vehicle was struck by a tractor-trailer driven by Tuck. Tuck did not notice the collision and kept driving. Humphrey kept driving, got Tuck’s attention, and they pulled over to discuss the collision. Humphrey told a police officer he did not need medical attention.

It turns out that Humphrey was incorrect. Upon arriving at his hotel, Humphrey noticed a problem with his left eye, and he removed a sliver of glass from that eye. His eyesight got worse over the next day, which led him to an ophthalmologist. That doctor diagnosed a tumor on Humphrey’s pituitary gland, and he advised Humphrey that if he did not undergo surgery to remove the tumor, he might go blind.

Humphrey consulted with a neurosurgeon when he returned home, who said that the tumor was consistent with one that could be caused by trauma. The tumor was removed a few days later. After surgery, Humphrey was advised to take medicine and get glasses—he did neither as originally prescribed.

Humphrey sued Tuck and Tuck’s employer. At trial, the defendant argued that Humphrey had failed to mitigate his damages because he had not taken the medicine as prescribed by his physicians and because he had never gotten eyeglasses the doctor prescribed. The trial court gave an instruction on failure to mitigate over Humphrey’s objection. The jury returned a verdict of $40,000 and Humphrey appealed.

On appeal, Humphrey argued that the trial court erred when giving the instruction on mitigation of damages. In particular, it argued that the defendants did not meet an element of that defense—that Humphrey’s failure to mitigate his damages caused him to suffer an identifiable item of harm not attributable to defendants’ negligence. The Court agreed.

The Court noted that while there was “some confusion” on whether Humphrey followed his doctor’s prescriptions, the defendants did not introduce any evidence

that Humphrey’s failure to follow his doctors’ orders caused him to suffer a “continuance of symptoms” for any specified period of time or that his symptoms were exacerbated in any way. In sum, U.S. Xpress does not direct us to any evidence showing that Humphrey’s failure to take the bromocriptine exactly as prescribed “increased [his] harm, and if so, by how much.” There is insufficient evidence of increased harm to support giving the instruction.

Further, with respect to Humphrey’s failure to fill his prescription for eyeglasses, U.S. Xpress does not direct us to any evidence presented at trial regarding alleged vision problems that resulted from Humphrey’s failure to get those eyeglasses. Indeed, the evidence shows that Humphrey passed an eye examination in August 2018, without wearing eyeglasses, in order to renew his commercial driver’s license. Again, U.S. Xpress has not shown that Humphrey’s failure to get the eyeglasses prescription filled caused him any discrete harm.

As there was no evidence supporting this element of the affirmative defense, the trial court erred when it gave this instruction to the jury. The case was remanded for a new trial.


1. A jury instruction is not warranted if the evidence does not support such an instruction.
2. A defendant who wants to prove failure to mitigate must prove, inter alia, that the plaintiff’s failure to mitigate his damages caused him to suffer an identifiable item of harm not attributable to defendants’ negligence.
3. A defendant fails to prove failure to mitigate if it does not show that a plaintiff increased his harm by not following his doctor’s orders.

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