KLANSECK V. ANDERSON SALES & SERVICE, INC. 393 N.W.2d 356 (1986) CASE BRIEF

KLANSECK V. ANDERSON SALES & SERVICE, INC.

393 N.W.2d 356 (1986)

NATURE OF THE CASE: Klanseck (P) appealed an affirmation of a judgment reducing the jury's award of damages due P's comparative negligence in P's action for breach of implied warranties and negligence against Anderson (D).

FACTS: P purchased a Honda GL 1000 motorcycle from D and was heading for home with his new cycle when it began to 'fishtail.' P applied the brakes and the motorcycle slid sideways and went down, resulting in P's injuries. P received sutures in his left arm, was x-rayed and released. Twelve days later, a fracture of P's right wrist was diagnosed and treated. P claimed that his injuries resulted in chronic pain and numbness in his left arm and hand, which interfered with his work and eventually resulted in a serious mental disorder. After the accident, it was found that the front tire had deflated. A small hole was later discovered on the portion of the tube that contacted the wheel rim. P's expert witness testified that the puncture resulted from the improper placement of a rubber strip, allowing contact between the tube and the metal heads, or nipples, of the spokes on the front rim. The court gave an instruction on P's duty to mitigate damages. P objected because no evidence had been admitted that he had failed to mitigate his damages. D points to the testimony of Dr. Gary W. Roat, and claims that it creates an issue on the question of mitigation. Dr. Roat, a neurologist, testified that P had come to him on referral from another physician about a year after the accident and that he had treated P a number of times for numbness and tingling in his hand as well as back and leg pain. After trying several medications, Dr. Roat recommended that plaintiff undergo additional diagnostic tests, including nerve conduction studies, an electromyelographic examination, and a myelogram to determine whether he had a herniated disk. P decided against taking these tests unless his symptoms worsened. The jury found P 60 percent negligent and D 40 percent. P appealed and the court of appeals affirmed. P appealed.

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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