Comparative negligence applies, not mitigation of damages,where there was no allegation of plaintiff’s negligence after she discovered the harm.

Langlois v. Town of Proctor 2014 VT 130 (05-Dec-2014)

DOOLEY, J. Building owner Kathleen Langlois alleged she arranged with a representative of the Town of Proctor to disconnect water service, but the Town failed to do so, and that she suffered damage in reliance on the Town’s undertaking when she discontinued heating her building, causing the pipes containing water to freeze and split with resulting flooding of the first floor and basement. The jury found the Town negligent and awarded plaintiff damages of $64,918.44. We reverse and remand because of the trial court instructed on mitigation of damages instead of comparative negligence and there was no allegation of plaintiff’s negligence after she discovered the injury or discrete damages allegedly attributable solely to plaintiff.

The relevant sequence of events was as follows. Plaintiff testified that she had her plumber friend drain the pipes in the building. The plumber turned off the water at a turn-off valve on the first floor of the building. The plumber did not attempt to turn off the water at a cellar valve, leaving water between that point and the first-floor valve. Town employees came to plaintiff’s house to shut the water off at the curb stop in May 2009. No one from the Town attempted to enter the building[and check whether the water was off after the May 2009 attempt to turn it off at the check valve. The damage was caused by a frozen and split pipe that occurred in the line in the basement before it reached the first-floor turn-off valve Plaintiff did not heat the building at all during the winter of 2009-2010, when the pipe presumably burst. . Plaintiff but did not enter the part of the first floor where the leak occurred until August 10, 2010, when the leak was discovered.

The instructions on “Mitigation of Damages,” said that if the jury found plaintiff could “reasonably have avoided some of the damages claimed by taking any reasonable action” the jury must reduce the award by the amount that could have been avoided.”

We first reject the trial court’s basis for refusing to instruct on comparative negligence—that plaintiff had no duty to determine whether the water had been turned off. In the context of a comparative fault analysis, plaintiff had a general duty to take due care with respect to her own property. The questions for the jury were, under the circumstances of this case, whether plaintiff failed to take due care and, if so, to what extent her conduct caused the claimed injuries.

The central question is whether, under the evidence, the jury could have found that: (1) plaintiff was also negligent, such that the jury should have found the degree of that negligence and compared it to the degree of defendant’s negligence; (2) plaintiff should have taken actions to mitigate her damages; (3) or both.

Other courts and academics have struggled to find a consistent answer to the question of when comparative negligence or mitigation of damages applies. In some cases, comparative negligence essentially subsumes mitigation, with all reduction in a plaintiff’s recovery controlled only by relative fault.     Other jurisdictions apply the damages mitigation doctrine only to a plaintiff’s post-injury conduct and apply comparative negligence to damages from all other sources. Still other jurisdictions apply damages mitigation only to discrete items of harm that are tied to a plaintiff’s conduct and apply comparative negligence to damages from all other sources.

We have never decided this question.

The traditional approach draws temporal line to determine whether comparative negligence or mitigation/avoidable consequences applies is when the plaintiff becomes aware of being harmed by the defendant’s negligence. The modern approach draws no temporal distinction and abandons mitigation of damages in negligence cases in favor of comparative negligence. Restatement of Torts: Apportionment of Liab. § 3, Reporters’ Note, cmt. b. (2000)..

We need make no determination here whether the Third Restatement position should be adopted because in this case, there is no allegation of plaintiff’s negligence after she discovered the injury, and no discrete damages allegedly attributable solely to plaintiff. Thus, we agree with the Town that under either approach the court should have instructed the jury on comparative negligence rather than on damages mitigation to respond to its claim of plaintiff’s negligence.