Lawrence v. Wirth , 226 Va. 408 ( 1983 )

POFF, J.,

concurring and dissenting in part.

I concur in part and dissent in part. I agree that “to bar recovery, a plaintiffs negligence must concur with the defendant’s” and that the granting of the contributory negligence instruction was reversible error. The majority further holds, however, that upon a new trial the alleged negligence of the plaintiff may be a partial bar to her recovery, and with that holding I disagree.

Under the rule the majority applies, a plaintiff who has suffered an injury as the proximate result of a tort cannot recover damages for any portion of the harm which, by the exercise of ordinary care, he could have avoided. This rule is sometimes called the doctrine of “avoidable consequences.” See Prosser, Law of Torts 422-23 (4th ed. 1971); Restatement (Second) Torts § 918.

While I recognize the logic underlying this doctrine, I am of opinion the doctrine should not be applied in this case. As the majority notes, Mrs. Lawrence testified that her delay in seeking a second medical opinion was induced by her fear of the prospect of cancer and her trust in the defendant’s professional judgment. The majority holds that whether her delay was a breach of the standard of ordinary care is a question to be determined by a jury on remand. I would hold as a matter of law that Mrs. Lawrence acted as any reasonably prudent person would have acted under similar circumstances and that, given the same evidence on retrial, the trial court should not submit the mitigation question to the jury.

CARRICO, C.J., and THOMAS, J., join in opinion, concurring and dissenting in part.