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IN THE SUPREME COURT OF IOWA
No. 114 / 05-0161 Filed March 16, 2007 ROBIN OLSON, Appellee, vs. SCOTT SUMPTER, Appellant.

Appeal from the Iowa District Court for Fremont County, Charles L. Smith, Judge.

The district court granted the plaintiff's motion for new trial on the ground that jury instructions on plaintiff's unreasonable failure to mitigate damages were erroneous. REVERSED AND REMANDED.

Joseph D. Thornton of Smith Peterson Law Firm, Council Bluffs, for appellant. Jon H. Johnson of Johnson Law, P.L.C., Sidney, for appellee.

2 HECHT, Justice. The district court concluded the jury was improperly instructed on the subject of Olson's alleged unreasonable failure to mitigate her damages in this personal injury case and granted Olson's motion for a new trial. Because Olson failed, before closing arguments, to object to the mitigation instruction, a new trial should not have been granted on that ground. We therefore reverse the grant of a new trial. I. Background Facts and Proceedings.

Robin Olson and Scott Sumpter were neighbors in Hamburg, Iowa. Olson backed her car out of her driveway onto the adjacent street. Within seconds after she changed gears and began moving forward on the street, Sumpter backed his car out of his driveway. The rear of Sumpter's car collided with the passenger-side rear of Olson's car. Olson sued Sumpter alleging Sumpter's negligence caused personal injuries and property damage. Sumpter denied liability and, as an affirmative defense, alleged Olson's fault 1 was a proximate cause of her claimed damages. See Iowa Code

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