No. 01-1131Commonwealth of Massachusetts Superior Court BRISTOL, SS.
September 13, 2002
MEMORANDUM OF DECISION UPON JURY-WAIVED TRIAL
Daniel F. Toomey,
INTRODUCTION
Defendants having acknowledged their liability to plaintiff for her injuries and losses sustained as a consequence of their operation of their motor vehicle, the matter came before the court on September 4, 2002, for a determination of damages. The parties waived their respective rights to trial by jury upon the damages question, and the court received evidence as to which the following findings and rulings have been made.
FINDINGS OF FACT
1. On September 8, 1999, plaintiff’s motor vehicle was impacted by material falling from defendants’ vehicle upon Route 95 in Attleboro, Massachusetts.
2. The property damage to plaintiff’s vehicle required that it be towed, repaired, and stored at the business of “Mike Badgio Equipment Repair” located in Brockton, Massachusetts.
3. A dispute arose between the parties as to the quantum of property damages attributable to plaintiff’s negligence. Plaintiff maintained that she ought to be compensated in the amount of $8,663.66 for towing, repair, and storage services provided by Badgio. Defendants paid to plaintiff $4,582.45, leaving, at the time the instant complaint was filed, an unpaid balance of $4,081.21.
4. Asserting her inability to pay the balance due to Badgio, plaintiff left the vehicle – a 1998 Western Star tractor, theretofore used by plaintiff in her business as an independent trucker — in the keeping of Badgio. Plaintiff has made no effort to reclaim the tractor.
5. Badgio’s business is located in a building in which he is a tenant. Badgio’s landlord charges him $30.00 per day for his use of a parking area near the building. Through September 4, 2002, Badgio has alleged he owes his landlord, on account of plaintiff’s tractor, $29,220.00 in storage fees.
6. Although plaintiff was alarmed at the escalating storage bill, she neither asked that Badgio move the tractor, nor requested a reduction in the amount she owed Badgio, nor offered part payment to redeem her tractor.
7. Prior to the accident, plaintiff had made attempts at employment as a salaried tractor operator, but those attempts were unsuccessful due, in part, to employers’ concerns as to her litigiousness. On only one occasion, however, did an employer make reference to her record of gender discrimination litigation, and her inquiries of friends in the tractoring business were uniformly non-productive. Additionally, her education circumstances — she had withdrawn from high school during her senior year — discouraged her from further salaried employment efforts.
8. Between the date of the accident and the present, plaintiff did not formally seek any re-employment as a tractor-trailer operator because, she alleges, the nature of the business (which favored operators who could make use of their own tractors), the industry’s bias against female operators, and her personal history as one who had brought a claim for gender discrimination before the MCAD and the federal courts, all rendered her re-employment unlikely.
9. Prior to her career as an independent tractor-trailer operator, plaintiff had worked in other jobs that required her to operate a motor vehicle, but plaintiff has not sought such employment and has remained unemployed from the date of the accident through the present. She was never disabled after the accident and is competent to work at non-trucking jobs.
10. Plaintiff has not sought non-trucking employment after the accident because her pride in the commercial driver’s license she had acquired and in the profession she had practiced made other jobs seem to her to be “beneath” her. Moreover, she saw her trucking activities as an against-the-odds accomplishment for a woman and as a source of inspiration to others of her gender. In her view, to seek employment in fields other than truck driving would be demeaning.
11. With respect to plaintiff’s financial circumstances at pertinent times:
a. Plaintiff reasonably expected, from her trucking business, a net income of $25,000.00 per annum in 2000, 2001, and 2002;
b. Plaintiff’s husband’s unadjusted income, as reflected by their joint tax returns for 1997 through 2000, was between $100,000.00 and $150,000.00 per annum;
c. Plaintiff and her husband resided in a “custom-built home,” which had been erected in 1994-1995;
d. The original purchase price for the residence was $159,000.00, and by 2001, the outstanding debt secured by the home was $104,000.00, leaving an equity of not less that $55,000.00;
e. In 1999 (and to the present), plaintiff owned five horses, three of which were saddle-bred “show” horses and two were smaller animals purchased in 1998-1999-the total cost of the “show” horses was about $10,200.00;
f. In October, 1999, plaintiff and her husband purchased a new pickup truck, the financial details of which were $32,000.00 (sticker price) — $12,000.00 (cash payment) -$12,000.00 (trade-in) — $8,000 (financing); and
g. During the summer of 2000, plaintiff and her husband acquired a new “custom” horse trailer which they used to transport the horses for “trail riding.” The trailer was obtained via trade-in of an older trailer and balance financing.
12. Plaintiff has made no application for loans, the proceeds of which might be used to reduce her indebtedness to Badgio, nor did she use the available 1999 credit on her Capital Card, concededly only $500.00, for that purpose.
13. Plaintiff has described her daily routine since the 1999 accident as generally “working with the horses.” She has not been otherwise employed since the September, 1999 accident.
14. Damages, arguably attributed[1] to the negligence of the defendant, are as follows:
a. Towing (Exh. 1) $225.00
b. Parts (Exh. 18) $809.90
c. Parts (Exh. 19) $ 25.39
d. Parts (Exh. 20) $ 77.95
e. Labor and Parts (Exh. 3) $7,425.42
f. Storage (Exh. 16 and testimony) $29,220.00
g. Lost net income (1999-2000) (testimony) $75,000.00
15. Amounts heretofore paid to plaintiffs on behalf of defendant and to be set off against any recovery realized by plaintiff against defendant total $4,582.48 (Exh. 14).
16. There is no evidence on this record that Badgio either paid his landlord’s charges for the use of the area on which plaintiff’s tractor was stored or that he sought to foreclose upon his security interest in the tractor.
DISCUSSION
Firmly grounded in the law of damages is the proposition that one who has been injured by another is not permitted to dissolve into passivity and, confident that the other will be compelled to provide full compensation, allow one’s circumstances to deteriorate beyond the harm initially inflicted. That proposition, commonly described as the principle of the mitigation of damages, is handsomely illustrated, in the omission rather than in the adherence, by the matter at bar.
At bottom, the principle will operate to deny recovery for “damages that were avoidable by the use of reasonable precautions on [plaintiff’s] part.” Burnham v. Mark IV Homes, Inc., 387 Mass. 575, 586 (1982). The burden is upon the defendant, if he seeks to diminish the damages he will be asked to pay, to prove that plaintiff did not act reasonably in the conduct of her affairs and, as a result, has helped to create the loss she ultimately suffers. McKenna v. Commissioner of Mental Health, 347 Mass. 674, 676-677 (1964). In the case at hand, defendant has satisfactorily borne his burden, and plaintiff must accept the consequences of her unreasonable response to the wrong done her by defendant. Sullivan v. Old Colony Street Railway, 200 Mass. 303, 309
(1908).
The court is persuaded by a fair preponderance of the evidence received at trial and recited supra that plaintiff’s conduct since September, 1999, was not reasonably calculated to lessen the harm consequent to defendant’s negligence. Faced with the prospect of an unpaid parts and labor bill, a daily increasing storage cost and a completely eradicated income, plaintiff did nothing to diminish her losses. For the three years since the accident, plaintiff contented herself with tending to her “hobby,” viz, her horses. Her attempts to secure comparable employment were de minimus and subverted by her self-imposed and, under the circumstances, unreasonable obsession with resuming her former calling as a tractor-trailer operator.[2] Her inability to raise the approximate $4,000.00 needed to “bail out” her tractor is puzzling given the financial resources apparently available to her. For example, the substantial equity in her residence, the significant purchases of pickup truck, horse trailer and horses, and her omission to seek loans from credit card accounts or other commercial lenders all suggest that she had purposefully elected not to satisfy her debt to Badgio and to abandon her tractor — and her career.
That election is antithetical to a finding of a reasonable mitigation of damages and will relieve defendant of his obligation to compensate plaintiff for losses that, had she acted reasonably, would have claimed defendant, not plaintiff, as their parent. Defendant cannot now be called upon to fund plaintiff’s patently unreasonable decisions to eschew her career, to abandon her tractor for want of a relatively minimal and likely attainable sum, to permit her indebtedness to grow day by day to a crushing level, and to forsake a search for comparable, albeit
non-trucking, employment that would likely have mitigated her damages.Quaranto v. Silverman, 345 Mass. 423, 428 (1963); Brian v. Sopkin and Sons, Inc., 314 Mass. 180, 183 (1943). Indeed, plaintiff’s conduct, not defendant’s negligence, is the proximate cause of the great majority of the misfortune that now burdens plaintiff, and plaintiff, not defendant, should, accordingly, bear the burden of that misfortune. Delano Growers’Cooperative Winery v. Supreme Wine Co., Inc., 393 Mass. 666, 684 (1985).
CONCLUSION
Based upon the evidence adduced at trial and application of the determination that plaintiff has failed reasonably to mitigate her damages, I assess plaintiff’s damages in the following fashion:
Plaintiff’s total loss attributable to the accident is $112,783.66, an amount determined by adding all of the elements of her loss recited in lines a. through g., paragraph 14, Finding of Facts, supra. Because the losses reflected in lines a. through f. were not caused, in whole or in part, by plaintiff’s failure to mitigate, defendant shall be liable for the entirety of those losses, to wit, $8.563.66.
The losses appearing on lines f. and g. (which total $104,220.00) were, however, caused, in part, by plaintiff’s failure to mitigate. Based on the evidence advanced at trial, this court attributes eighty percent of the line f. and g. losses to plaintiff’s unreasonable conduct. Accordingly, defendant shall be liable for twenty percent of the line f. and g. losses, to wit, $20,844.00.
Defendant’s total liability, therefore, is $29,407.66. That total will be reduced by defendant’s prior payments to plaintiff of $4,582.48. (See paragraph 15, Findings of Fact, supra). Judgment shall enter for plaintiff for the difference, to wit, $24,825.18, plus statutory interest.