Bigley v. Craven

• Decision Date: 23 February 1989
• Docket Number: No. 88-169,88-169
• Citation: 769 P.2d 892
• Parties: James BIGLEY and Rochelle Bigley, Appellants (Plaintiffs), v. Jamie Lyn CRAVEN, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 892

769 P.2d 892

James BIGLEY and Rochelle Bigley, Appellants (Plaintiffs), v. Jamie Lyn CRAVEN, Appellee (Defendant).

No. 88-169.

Supreme Court of Wyoming.

Feb. 23, 1989.

Jeffrey A. Tennyson of Robert N. Williams, P.C., Jackson, for appellants.

Ford T. Bussart and Lisa A. Botham of Greenhalgh, Bussart, West & Rossetti of Rock Springs, for appellee.

Before THOMAS, URBIGKIT, MACY and GOLDEN, JJ., and GUTHRIE, J., Retired.

GOLDEN, Justice.

Appellants James and Rochelle Bigley appeal from a jury verdict in their favor awarding James Bigley $9,100 for personal injury damages against appellee Jamie Craven. Bigleys assert the trial court erred in refusing to instruct the jury that if it was unable to apportion the damages between Mr. Bigley's pre-accident and post-accident physical conditions, then it could find Jamie Craven, who caused the accident, to be responsible for the entire damages. We hold the trial court erred and affirm on the issue of liability, reverse on the issue of damages, and remand for a new trial in accordance with this decision.

FACTS

Before the May 6, 1983, rear-end motor vehicle collision, which gave rise to this action, James Bigley suffered from mild and infrequent symptoms of pain and discomfort caused by degenerative changes in his cervical spine which were the result of both the natural aging process and a 1978 motor vehicle accident. According to Mr. Bigley's testimony at trial, he was in fair condition and had no problems with his neck about a month after the 1978 accident. He further testified that within a few months after the 1978 accident he had resumed most of his pre-accident physical activities. Other than an infrequent stiff neck upon awakening in the morning, he was not limited in his activities before the 1983 accident giving rise to this action. This condition was confirmed by the trial testimony of Meade Davis, M.D., and trial testimony by deposition of J. Charles Rich, M.D.

On May 6, 1983, the Bigleys were occupants of their VW van stopped at a traffic light at an intersection in Rock Springs, Wyoming, when Craven negligently drove her car into the rear-end of the Bigleys' van. This collision injured Mr. Bigley's neck. According to Dr. Rich's testimony, Mr. Bigley's symptoms following the 1983 accident were stiffness and soreness in his neck, numbing sensations into the fourth and fifth fingers of both hands, some muscle tenderness on the right side of his neck, and diminished cervical range of motion. In Dr. Rich's opinion, Mr. Bigley had sustained a fairly severe acceleration-deceleration injury on an already abnormal neck. Dr. Rich explained that as of 1978 Mr. Bigley had cervical degenerative disk disease changes; as of 1983 he noted similar changes between Mr. Bigley's fifth and sixth cervical vertebrae which were "perhaps related to his normal activities," and "not necessarily * * * related to a previous injury." According to Dr. Rich, Mr. Bigley, like other men of his age with degenerative neck changes, is more likely to experience a prolonged period of symptoms following injury, increased tendency to excessive muscle tightness, and a longer recovery period. On cross-examination by appellee's counsel, Dr. Rich clarified that he was not quantifying the amount of injury Mr. Bigley sustained as a result of the 1983 accident, and he testified that the 1978 accident was sufficient to make him more vulnerable to the 1983 accident. He also stated that he accepted the radiologist's opinion that Mr. Bigley's cervical degeneration increased due to the 1983 accident. On redirect examination, Dr. Rich summarized his views that the 1983 injury aggravated a preexisting condition; Mr. Bigley sustained the super-imposition of an acceleration-deceleration of the cervical spine on a neck that already had evidence of degenerative disk disease; the neck was less well able to tolerate that trauma than someone else's neck might have been; and the symptoms experienced by Mr. Bigley were consistent with those to be expected in that kind of injury.

Dr. Davis' testimony was similar to Dr. Rich's. In Dr. Davis' view, Mr. Bigley had degenerative changes in his neck that were probably aggravated by the 1978 injury, and the degenerative changes were again aggravated and worsened by the 1983 accident. Explaining, Dr. Davis stated, "what we're really trying to distinguish here I think it's a magnitude * * * of his injury as a result of the normal wear-and-tear changes of day-to-day life versus the more sudden and more rapid rate of advances, changes that might incur [sic] from actual injuries on the subject." In his opinion, the 1983 accident caused additional damage to Mr. Bigley's neck that "resulted in the production of symptoms or increased symptoms over and above what he had." When asked on direct examination by Mr. Bigley's counsel whether he could apportion the damages between Mr. Bigley's preexisting condition and the aggravation of that condition caused by the 1983 accident, Dr. Davis answered that Mr. Bigley's present physical limitations of no heavy lifting or long driving periods seem to be related to symptoms as a result of the 1983 accident and those changes probably are permanent. On cross-examination by appellee's counsel, Dr. Davis agreed that in his opinion three conditions existed in Mr. Bigley's neck: (1) natural degenerative condition as a result of the aging process; (2) some degenerative condition as a result of the 1978 accident; and (3) some degenerative condition as a result of the 1983 accident.

Against this evidentiary background, the Bigleys requested the trial court to instruct the jury as follows:

Plaintiffs' Proposed Instruction No. 14

When there is a pre-existing condition, and where trauma aggravates the pre-existing condition, and no apportionment of the disability between that caused by the pre-existing condition and that caused by the trauma can be made, in such case, even though a portion of the present and future disability is directly attributable to the pre-existing condition, the defendant whose act or negligence was the cause of the trauma is responsible for the entire damage.

The trial court refused to give that requested instruction; instead, it instructed the jury as follows:

Instruction No. 15

A person who has a condition or disability at the time of any injury is not entitled to recover damages for the pre-existing condition. However, he is entitled to recover damages for any aggravation of such pre-existing condition directly resulting from the injury.

This is true even if the person's condition or disability made him more susceptible to the possibility of ill effects than a normally healthy person would have been, and even if a normally healthy person would not have suffered any substantial injury.

Where a pre-existing condition or disability is so aggravated, the damages as to such condition or disability are limited to the additional injury caused by the aggravation.

The Bigleys do not dispute the propriety of this given instruction, but contend it did not sufficiently cover their theory of the case in light of the evidence presented in support of that theory. This court has consistently held "that a party is entitled to have a jury instruction upon its theory of the case but only if such theory is supported by competent evidence and a proper request for the instruction is made." Short v. Spring Creek Ranch, Inc., 731 P.2d 1195, 1199 (Wyo.1987).

Bigleys properly objected to the trial court's refusal to give their requested instruction. W.R.C.P. 51; Hashimoto v. Marathon Pipe Line Co., 767 P.2d 158, 162 (Wyo.1989). Our standard of review for alleged error in jury instructions is:

[A] finding of error is not alone sufficient to reverse; prejudicial error must be found. Walton v. Texasgulf, Inc., Wyo., 634 P.2d 908 (1981). Prejudicial error is never presumed; it must be established by the parties. Pure Gas and Chemical Company v. Cook [526 P.2d 986 (Wyo.1974) ]. If it is established that an instruction or instructions had a tendency to confuse or mislead the jury with respect to the applicable principles of law, reversal is proper. 9 Wright & Miller, Federal Practice and Procedure: Civil § 2558, p. 668 (1971); see also, Marken v. Empire Drilling Company, 75 Wyo. 121, 293 P.2d 406 (1956).

Cervelli v. Graves, 661 P.2d 1032, 1036 (Wyo.1983).

In Condict v. Whitehead, Zunker, Gage, Davidson & Shotwell, P.C., 743 P.2d 880, 885-86 (Wyo.1987), we observed from 1 California Forms of Jury Instruction, Procedures and Instructions § 1.13 (1987): "If it appears that giving or refusing to give an instruction was likely to mislead the jury and become a factor in its verdict, then the instructional error is prejudicial and a court should not speculate on what may have been the basis for the jury's verdict."

Mindful of this standard, we now determine whether the trial court's refusal to give the Bigleys' requested instruction was error and, if so, whether that error was prejudicial in the sense which the standard articulates.

Simply stated, the Bigleys assert that, in view of the evidence presented relating to Mr. Bigley's physical condition before and after the 1983 collision, the jury had difficulty in determining the amount of Mr. Bigley's disability to be assessed against Craven because of her fault in causing Mr. Bigley's injuries in the 1983 accident. Specifically, the Bigleys contend that the jury, not the judge, should decide whether Mr. Bigley's disability from the 1983 accident can be segregated from his condition before that accident, based on evidence that reasonably suggests a jury could decide either way. In support of their position, the Bigleys rely on Newbury v. Vogel, 151 Colo. 520, 379 P.2d 811 (1963), as their standard bearer, as well as other Colorado decisions ¹ and decisions from several other jurisdictions. ² In Newbury, as a result of a motor vehicle collision, the plaintiff, like Mr. Bigley, suffered an...