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defendantdamagesappealtrialtestimonywilljury instructions
defendantdamagesliabilitytrialwill

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Lobermeier v. General Telephone Company of Wisconsin, 113 Wis.2d 721, 334 N.W.2d 588 (Table), 1983 WL 161633

Facts

Lobermeier suffered a ruptured eardrum while using his telephone, claiming that lightning entered his home through defectively grounded telephone wires. The defendants contended that the lightning struck a television tower and entered the home via antenna leads. A crucial piece of evidence was a deformed aluminum plate in the telephone, which the defendants argued indicated that the force causing the injury came from outside the telephone. Lobermeier's expert testified that the deformation could also be caused by an electrostatic force from within the telephone. The trial court excluded the defendants' rebuttal evidence regarding this matter, leading to the appeal.

Lobermeier's eardrum was ruptured while he was talking on his telephone.

Issue

Did the trial court err in excluding relevant evidence regarding the cause of Lobermeier's injury and his duty to mitigate damages?

Did the trial court err in excluding relevant liability and damage evidence from the jury?

Rule

An injured person must mitigate damages by submitting to surgery that will improve their condition, and the reasonableness of refusing surgery is typically a question for the jury.

An injured person must mitigate his damages by submitting, within a reasonable time, to surgery that will improve his condition.

Analysis

The court determined that the trial court improperly excluded the defendants' expert testimony that could rebut Lobermeier's expert's claims about the aluminum plate. The court emphasized that the question of whether a reasonable person would undergo the recommended surgery should have been left to the jury, as both doctors believed there was a high probability of success with limited risks. The trial court's instruction to the jury regarding Lobermeier's refusal to undergo surgery was also deemed erroneous.

The trial court erred in deciding the reasonableness of Lobermeier's refusal to have the recommended second surgery.

Conclusion

The court reversed the judgment and remanded the case for a new trial, emphasizing the need for the jury to consider all relevant evidence and determine the reasonableness of Lobermeier's actions.

The court reversed the judgment and remanded this matter for a new trial on all issues.

Who won?

The defendants prevailed in the appeal because the court found that the trial court had erred in its evidentiary rulings and jury instructions, which warranted a new trial.

The defendants contend that the trial court erred in excluding relevant liability and damage evidence from the jury.

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