Gill v. Timm

ZIMMERMAN, Justice:

Defendant Robert V. Timm appeals from the trial court’s denial of his motion to dismiss plaintiff’s complaint for money damages. Defendant also challenges the measure used by the trial court in fixing plaintiff’s damages. We hold that the trial court did not err in refusing to dismiss plaintiff’s complaint and that defendant waived his right to challenge the trial court’s award of damages by failing to plead or argue mitigation of damages as an affirmative defense.

This action arose out of an automobile accident that occurred on December 2, 1979. Plaintiff was sitting in his…