Consequences of Not Giving Give a ''Comparative Negligence'' Jury Instruction
In Fisher v. Slager, 201 Ill. App. 3d 480, 559 N.E.2d 118, 147 Ill. Dec. 118 (1990), the plaintiff brought wrongful death and survival actions against 11 doctors and hospitals.
The facts stated in the case do not indicate whether the affirmative defense of contributory negligence was raised in the pleadings.
The jury returned a verdict in favor of all defendants.
The trial court gave the jury IPI Civil 2d No. 105.08.
There was no comparative negligence instruction tendered to the court.
There clearly was evidence that the patient failed to mitigate damages when he failed to undergo a medical procedure and when he declined therapy as an in-patient as recommended.
On appeal, the court indicated that IPI Civil 2d No. 105.08 is solely a damage-reducing instruction and IPI Civil 3d No. 45.07 (comparative negligence) is a damage-reducing verdict form. Fisher, 201 Ill. App. 3d at 489.
The court held that the failure to give a comparative negligence jury instruction would be a nugatory error, if it were error. Fisher, 201 Ill. App. 3d at 489.
The court pointed out that the jury was also instructed that, if it decided for the defendants, it would not have to consider the question of damages. Fisher, 201 Ill. App. 3d at 489.