Callan v. Hackett

• Decision Date: 18 February 2000
• Docket Number: No. 98-318.,98-318.
• Citation: 749 A.2d 626
• Court: Vermont Supreme Court
• Parties: Louise and Dwight CALLAN v. Marilyn HACKETT.

749 A.2d 626

Louise and Dwight CALLAN v. Marilyn HACKETT.

No. 98-318.

Supreme Court of Vermont.

February 18, 2000.

Present AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

ENTRY ORDER

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, plaintiff's 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, 898 (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, 91 Idaho 665, 429 P.2d 397, 406 (1967) (where expert medical testimony could not provide basis for apportionment, court properly declined to give such jury instructions); Brittis v. Freemon, 34 Colo.App. 348, 527 P.2d 1175, 1178 (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 pre-existing 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...