Callan v. Hackett

Callan v. Hackett (98-318); 170 Vt. 609; 749 A.2d 626

[Filed 18-Feb-2000]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-318

                             DECEMBER TERM, 1999


Louise and Dwight Callan	       }	APPEALED FROM:
	                               }
	                               }
     v.	                               }	Franklin Superior Court
	                               }	
	                               }
Marilyn Hackett	                       }	DOCKET NO. S156-97 Fc	


             In the above-entitled cause, the Clerk will enter:


       Plaintiffs Louise and Dwight Callan appeal the trial court's denial of
  a motion for a new trial on  the issue of damages.  Plaintiff Louise Callan
  and defendant were involved in an automobile  collision on December 20,
  1994.  As a result of this collision, Louise suffered injuries and  missed
  two months of work.  The case was tried to a jury who found for plaintiffs. 
  Plaintiffs  contend that the trial court's instructions to the jury were
  erroneous with respect to the existence  of Louise's preexisting condition
  and that this error resulted in prejudice as evidenced by an  inadequate
  damage award.  We affirm.

       At trial, plaintiffs claimed that in addition to medical expenses and
  lost earnings, Louise's  injuries required them to purchase new milking
  equipment and hire additional farm labor because  she was no longer able to
  assist with farming chores.  They also sought damages for pain and 
  suffering and loss of consortium.  Evidence showed that Louise had a
  preexisting degenerative  disc disease that was asymptomatic prior to the
  accident.  There was conflicting evidence about  whether the farm expenses
  were caused by Louise's injury.  The jury awarded plaintiffs damages  in an
  amount sufficient to cover medical expenses ($3,700) and lost wages
  ($2,700), as well as  an additional $5,000.  Plaintiffs moved for an
  additur or new trial on the damages, challenging  the jury instructions on
  the aggravation of a preexisting condition.  The trial court denied the 
  motion.

       On appeal, plaintiffs contend that they needed to prove only that
  Louise had a preexisting  condition that was aggravated by defendant.  They
  claim that the burden should then shift to  defendant to prove what portion
  of the damages claimed were attributable to Louise's preexisting 
  condition.  Plaintiffs are essentially asking that we create a new rule
  that relieves plaintiffs of  proving the proximate cause of their damages
  if they have shown aggravation of a preexisting  condition.

 

       As this is an appeal challenging jury instructions, plaintiffs must
  first show that the charge as  given was wrong.  See Harris v. Carbonneau,
  165 Vt. 433, 438, 685 A.2d 296, 300 (1996).  Once they have established
  that the charge was improper, they must show that prejudice resulted  from
  that error.  See id.  In reviewing an instruction to the jury, we do not
  look at a single  sentence or even a single paragraph in isolation.  See
  id.  Instead, we consider the jury  instruction as a whole to determine if
  it "breathes the true spirit and doctrine of the law" and will  uphold it
  where it cannot be fairly said that the jury was misled.  Id.
	
       The ordinary rule in tort law is that the plaintiffs must prove, by a
  preponderance of the  evidence, the extent and nature of their damages. 
  See Conover v. Baker, 134 Vt. 466, 471, 365 A.2d 264, 268 (1976). 
  Plaintiffs must further show that such damages are the direct, necessary, 
  and probable result of defendant's negligent act. See 15 F. Lewis,
  Blashfield Automobile Law  and Practice § 481.1, at 77-78 (3d ed. 1969). 
  Plaintiffs' theory that they should not have to  prove their damages once
  they show a preexisting condition is spun out of several cases that 
  actually dealt with apportionment.  See e.g., Bigley v. Craven, 769 P.2d 892, 989 (Wyo. 1989)  (jury should have been instructed that if they could
  not apportion between degenerative  condition, prior accident, and current
  action, defendant was liable for all proven damages);  Blaine v. Byers, 429 P.2d 397, 406 (Idaho 1967) (where expert medical testimony could not 
  provide basis for apportionment, court properly declined to give such jury
  instructions); Brittis v.  Freemon, 527 P.2d 1175, 1178 (Colo. Ct. App.
  1974) (court is obligated to give statutorily-required jury instructions
  that mandated apportionment where there was a preexisting condition). 
  Plaintiffs also rely on a case where we held that apportionment was not
  implicated where the  jury found that there was only one cause of harm. 
  See Lorrain v. Ryan, 160 Vt. 202, 208, 628 A.2d 543, 547 (1993). 
	
       Apportionment between two or more causes is appropriate where there
  are "distinct harms" or  there is a "reasonable basis for determining the
  contribution of each cause to a single harm."   Restatement (Second) of
  Torts § 433A (1965).  The Restatement also provides that there may be 
  apportionment between "harm which results from a preexisting condition, for
  which the  defendant is no way responsible, and the further harm which his
  tortious conduct has caused."  Id. at cmt. e. 
	
       Plaintiffs' argument is that without any instructions on apportionment
  and without any  knowledge of the legal principles of apportionment, the
  jury nevertheless improperly apportioned  damages, thereby wrongly reducing
  plaintiffs' recovery.  There is nothing in the record or the  jury verdict
  to suggest such an interpretation.  The jury awarded plaintiffs 100% of the
  amount  of Louise's medical expenses and lost wages.  There could be no
  application of apportionment  where plaintiffs received 100% of their
  damages.  Plaintiffs did not receive damages for their  farm expenses, but
  the jury could reasonably have found those damages had not been proven.  
  Therefore, the apportionment cases are inapposite.

       We turn then to the language of the charge.  Plaintiffs object to the
  court's instructions that  plaintiffs must prove whether the claimed
  damages resulted from the accident or from the  preexisting condition. 
  Rather than looking at one or two specific sentences, however, we must 

 

  consider the whole charge in context.  See Harris at 438.  The court began
  the section of the  charge about the preexisting condition by stating "[a]
  party cannot invoke the predisposition of a  plaintiff in order to reduce
  damages for any predisposition a party may have."  The court went  on to
  explain the long-recognized principle of law known as the "eggshell" or
  "thin skull"  plaintiff rule.  "A predisposition to disability or injury is
  not an excuse.  The law is the defendant  must take the plaintiff as she
  found her."  The charge correctly provided that plaintiffs could  recover
  damages for "all the natural and proximate injuries caused by defendant's
  acts."   Additionally, the charge noted that plaintiffs could not recover
  for damages attributable "solely  and exclusively" to the preexisting
  condition or other causes unrelated to the collision.  The  specific
  portion of the charge that plaintiffs claim is erroneous properly provided
  that plaintiffs  must prove that the claimed damages resulted from the
  accident.  This, of course, is simply the  ordinary rule in tort actions. 
  See e.g., Brennen v. Mogul Corp., 151 Vt. 91, 96, 557 A.2d 870,  872 (1988)
  (plaintiffs must prove, by preponderance of evidence, extent and nature of
  damages);  11 P. Kelly, Blashfield Auto Law and Practice § 416.9, at 68
  (1977 & Supp. 1999) ("The burden  is on the plaintiff to prove that any
  physical incapacity was not caused solely by infirmities  having no
  connection with the accident.").  The court's instructions in the instant
  case were, on  the whole, thorough and well-balanced and conveyed the
  ordinary rule.
	
       Plaintiffs have failed to show that the charge was in error, and
  therefore there can be no  prejudice.

	
       Affirmed.
	

	                               BY THE COURT:



	                               _______________________________________
	                               Jeffrey L. Amestoy, Chief Justice

	                               _______________________________________
                                       John A. Dooley, Associate Justice

	                               _______________________________________
                                       James L. Morse, Associate Justice

	                               _______________________________________
	                               Denise R. Johnson, Associate Justice
	
	                               _______________________________________
	                               Marilyn S. Skoglund, Associate Justice