Aflague v. Luger
| Decision Date | 16 February 1999 |
| Docket Number | No. A-97-331,A-97-331 |
| Citation | 589 N.W.2d 177,8 Neb.App. 150 |
| Parties | Naomi L. AFLAGUE, appellant and cross-appellee, v. Michael J. LUGER, appellee and cross-appellant. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction.
2. Jury Instructions: Records: Appeal and Error. It is the duty of the appellant to direct the clerk to include in the transcript any tendered instruction refused by the trial court if the appellant intends to assign error to such refusal.
3. Records: Appeal and Error. A party's brief may not expand the evidentiary record, nor may it expand this court's transcript.
4. Jury Instructions: Pleadings: Evidence: Appeal and Error. It is the duty of the trial judge to instruct the jury on the issues presented by the pleadings and the evidence, whether requested to do so or not, and a failure to instruct on the proper law of the case constitutes prejudicial error.
5. Jury Instructions: Evidence. Juries are to be told that defendants take plaintiffs as they are when there is evidence of preexisting conditions which predispose the plaintiff to injury or greater injury than would occur without the preexisting conditions.
6. Damages: Liability. A defendant, under Nebraska law, is liable for the total Steven M. Delaney, of Hascall, Jungers, Garvey & Delaney, Bellevue, for appellant.
harm to a plaintiff from an accident even though the injury was greater because of the plaintiff's preexisting physical condition than would usually be caused by such an accident.
William H. Selde, of Sodoro, Daly & Sodoro, Omaha, for appellee.
This appeal involves the jury instructions to be given when a plaintiff produces evidence of a previous injury which is alleged to make her more susceptible to the injuries suffered in the accident at issue. The plaintiff claims she is an "eggshell-skull" plaintiff and is entitled to an instruction that the defendant takes her as he finds her. Therefore, the plaintiff claims on appeal that she was prejudiced by an inadequate jury instruction and that insufficient damages were awarded.
Naomi L. Aflague and Michael J. Luger were involved in a car accident in Omaha, Nebraska, on May 12, 1993. Aflague sued Luger on March 13, 1994, in the district court for Douglas County, Nebraska, alleging that Luger was negligent in failing to maintain a proper lookout, in failing to yield the right-of-way, and in failing to maintain reasonable control of his vehicle. Aflague alleged that she sustained injuries to her upper back, neck, and shoulders and "head and brain trauma." She asked for $5,000 in special damages, along with general damages and costs. Luger answered and alleged that the proximate cause of Aflague's damages was her contributory negligence, which was sufficient to bar her recovery. On November 13, 1995, Luger filed an offer to confess judgment in the amount of $4,500. Obviously the offer was rejected, because trial was held on February 10, 11, and 12, 1997.
Aflague testified that in May 1993, she was working at Lancer Label "doing data entry." Linda Brown, a coworker, described Aflague as outgoing and attentive to her work before the car accident. Brown testified that after the accident, Aflague "got upset easily, cried," and began complaining of headaches. Aflague also began transposing numbers in her paperwork. Aflague testified that she continued working for Lancer Label for approximately 8 months after the accident, until she was classified as "disabled" by the Social Security Administration due to her headaches and inability to focus at work.
In 1986, Aflague was involved in a fall while horseback riding. The fall resulted in a subdural hematoma on the left frontal portion of Aflague's skull. She was in a coma for 3 months and underwent brain surgery. Aflague's rehabilitation was extensive, lasting 10 months, and required that she relearn how to walk and speak. Aflague testified that she recovered fully from this accident and lived a normal life until the date of the car accident.
In describing the 1993 car accident, Aflague testified, Aflague testified that she attempted to work the following day but could not concentrate. She stated that her head hurt the entire day, that "[i]t was throbbing as far as up in the back and temple," and that the pain was constant. David Hart, a close friend, testified that before the accident, Aflague was "bubbly and friendly, very active," but that after the accident, she began to complain of headaches, sleeplessness, and anxiety. Aflague testified that prior to the car accident, she had never had any problems with any of the aforementioned things.
Aflague eventually went to see a Dr. Williams, a general practitioner. Aflague was referred to Dr. Edward Schima, a neurologist. Schima's deposition was introduced at trial. He testified that he first met with Aflague on July 12, 1993, and that she told him she had "been [in] her usual health" until the car accident. In taking her history, Schima discovered that Aflague had suffered a Schima ordered a CAT scan and testified that the results indicated that there was "[a] collection of fluid which appeared to be of spinal fluid density in the right temporal fossa, which would be on the side opposite to the original damage that we've got reported from 198." Schima opined that the fluid buildup was related to the second injury, because there had been no mention of it in Aflague's 1986 CAT scan. Schima stated that Aflague had suffered a closed head injury on May 12, 1993. He also testified that because Aflague suffered a severe head injury in 1986, she was "more vulnerable to side effects even after relatively minor trauma that might do very little in a person who's never had an injury."
serious fall from a horse in 1986, had undergone a craniotomy for a subdural hematoma on the left side of her brain, and had been in a coma for 3 months as a result of her injuries. Schima stated that Aflague "did not recall having any major problem with headaches following the original injury."
On cross-examination, Schima admitted that the fluid buildup on the right side of Aflague's brain could have occurred after the 1986 CAT scan was done, but before the May 1993 accident, and stated that Aflague's fluid buildup could be related to stress.
After consulting with Schima, Aflague met with Dr. William Marcil, a psychiatrist. Marcil's deposition was also introduced at trial. Marcil testified that he first met with Aflague on July 19, 1994, and that they discussed her horseback riding accident and the resulting injuries and rehabilitation. Marcil testified that in January 1995 he determined that Aflague was "disabled" and "incapable of working" as a result of her headaches and depression. Marcil agreed on cross-examination that if Aflague had suffered cognitive or psychological injuries as a result of her fall in 1986, "those things [would] have been part of her ... normal behavior ... [a]nd maybe an event like a car accident would bring out [those] deficiencies."
Aflague was also referred to Dr. Mark Cunningham, a neuropsychologist, for psychological testing. Cunningham evaluated Aflague in September and October 1994. Cunningham testified that once an individual suffers a head injury, the brain is more at risk and is more vulnerable to further injury. He testified that the "neurobattery psych exam" performed on Aflague revealed that she had recovered from the effects of her horseback riding accident. Cunningham supported this conclusion by pointing to Aflague's ability to work steadily from her recovery from the 1986 accident up to the time of the car accident. Cunningham opined that Aflague suffered brain damage as a result of the 1993 car accident and agreed with Marcil that Aflague was unable to work as a result of her injuries.
Dr. Thomas Haley, a clinical psychologist called by Luger, testified that Aflague's cognitive deficits, which he noted as a result of testing, were not the result of the car accident, but, rather, were a combination of injuries from the 1986 accident and stress.
At the jury instruction conference, counsel for Aflague proposed an instruction dealing with the "aggravation of a preexisting condition." The proposed instruction is not included in the record before us, and the praecipe does not request that such be included in the transcript. What Aflague represents as the proposed instruction is set out in her brief on appeal. Aflague's brief asserts that the court did not use her tendered instruction. The record shows that instruction No. 14, on preexisting conditions, was given as follows:
There is evidence that the plaintiff had symptoms resulting from a brain injury prior to May 12, 1993, the date of the accident. The defendant is liable only for any damages you find to be proximately caused by the accident.
If you cannot separate damages caused by the pre-existing brain injury from those caused by the accident, then the defendant is liable for all those damages.
On February 12, 1997, the jury returned a general verdict for Aflague in the amount of $4,000.
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