Hashimoto v. Marathon Pipe Line Co., s. 87-120

Decision Date06 January 1989
Docket Number87-121,Nos. 87-120,s. 87-120
Citation767 P.2d 158
PartiesLloyd K. HASHIMOTO, Appellant (Plaintiff), v. MARATHON PIPE LINE CO., a Delaware corporation, and Penton Jerry Dixon, Appellees (Defendants). MARATHON PIPE LINE CO., a Delaware corporation, and Penton Jerry Dixon, Appellants (Defendants), v. Lloyd K. HASHIMOTO, Appellee (Plaintiff).
CourtWyoming Supreme Court

John E. Stanfield and Bruce Waters of Smith, Stanfield & Scott, Laramie, for Hashimoto.

Richard E. Day of Williams, Porter, Day & Neville, Casper, and Daniel J. Sullenbarger of Marathon Pipe Line Co., Houston, Tex., for Marathon Pipe Line Co.

Before CARDINE, C.J., THOMAS, URBIGKIT, and MACY, JJ., and BROWN, J., Ret. *

URBIGKIT, Justice.

These cross appeals involve two automobile accidents where the same person was victimized by two rear-end collisions in about eight months. Victim Lloyd K. Hashimoto (Hashimoto) is appealing his jury verdict awarded damages as inadequate based on several contended trial errors. The colliding vehicle's driver, Penton Jerry Dixon (Dixon), and his employer, Marathon Pipe Line Company (Marathon), are appealing the award of deposition costs to Hashimoto and contended inadequate award to them of other litigative costs. Hashimoto comprehensively phrases the issues for which he seeks review as:

1. Is it fair to relieve the defendant of any burden of proof as to affirmative defenses asserted by him?

2. Is it fair to force the plaintiff to disprove affirmative defenses asserted by the defendant?

3. Should the Wyoming Supreme Court adopt the comprehensive Restatement rules as to apportioning damages in cases involving multiple tort-feasors?

4. Between an injured victim and a negligent wrongdoer, who should bear the burden of proof as to whether the harm and the damages are divisible and can be apportioned?

5. Is it fair to relieve a wrongdoer from any burden of proof on his claim that a second collision caused some or all of the injured victim's damages?

6. Is it fair to force the plaintiff to prove his damages to a "reasonable certainty" in a case involving apportionment of damages?

7. Should the "reasonable certainty" standard be abandoned in Wyoming as to the proof of damages?

8. Is it time to replace "reasonable certainty" and "reasonable medical certainty" with "reasonable probability" and "reasonable medical probability" in civil cases? [Emphasis in original.]

Dixon and Marathon tender these issues:

1. The trial court abused its discretion in the award of discovery deposition costs to the Plaintiff for a deposition not used during the course of trial proceedings or during the trial itself.

2. The trial court abused its discretion in failing to award costs to the Defendant for pretrial interviews with Plaintiff's examining physicians and for expert medical witness fees for the time actually spent in court by subpoenaed medical witnesses.

We affirm on Hashimoto's appeal, although determining that reasonable certainty is not the appropriate standard of damage proof in civil cases, and affirm awarded costs on the cross appeal.


Hashimoto, while stopped to make a left turn, was rear-ended by Dixon as driving a Marathon vehicle. Dixon was speeding, ran a stop sign, and having consumed several beers within working hours immediately before, was under the influence of alcohol--with a blood alcohol test of .197%. Neck injuries to Hashimoto resulted from this first collision.

The second collision occurred about eight months later on October 9, 1984; coincidentally while Hashimoto was again stopped, waiting to make another left-hand turn. As now rear-ended by Todd Morgan (Morgan), this second collision caused injuries to Hashimoto's lower spine, with some aggravation of the earlier collision neck injuries. 1

Hashimoto filed a suit for damages resulting from both collisions on December 16, 1985, by suing Dixon, Marathon, 2 and Morgan, 3 including claims for punitive damages against Marathon and Dixon. Marathon was awarded summary judgment on punitive damages. In advance of trial, the trial court ruled that because of the second collision, Hashimoto had to meet the burden of proving to a "reasonable certainty" that his subsequent problems were caused by the first collision and not the second to recover from the two remaining defendants, Dixon and Marathon. Jury instructions as subsequently given also reflected that same decision. The jury returned a judgment awarding Hashimoto $4,500 for actual damages and punitive damages against Dixon of $3,000. Various motions were heard regarding awardable costs with judgment for a net award to Hashimoto of $241.49 ($806.49 as offset by Marathon's and Dixon's awarded costs of $565). Following a denied motion for new trial by Hashimoto, both parties timely appealed.


Although the parties collectively phrased numerous issues, we choose to address them by three categorizations: (1) burden of proof; (2) reasonable certainty; and (3) costs.

1. Burden of Proof When Successive Injuries Occur.

Hashimoto contends that Marathon and Dixon have the burden in a successive impact case to prove and apportion the damages resulting from injuries for which they are responsible or, if that apportionment is not possible, Marathon and Dixon may then be liable for all damages. We disagree.

For this first impression issue in this state, the trial court correctly applied the reasoning of Bruckman v. Pena, 29 Colo.App. 357, 487 P.2d 566 (1971). Bruckman is a case remarkably similar where the plaintiff was injured in two automobile accidents occurring within a little less than a year of each other. Defendants were the owner and driver of the truck involved in the first collision, and the plaintiff claimed aggravation of the first injuries caused by a second collision. That court held it was error to give an instruction which placed the burden of proving plaintiff's disability on the defendants since their liability should be limited to the damages proximately caused by their negligence. Bruckman, 487 P.2d at 568.

We are cognizant, as was the Bruckman court, of the principle that when a tortfeasor injures someone with a pre-existing condition, he is liable for the total damage when no apportionment between the pre-existing condition and the damage defendant caused can be made. Thus, the defendant must take his victim as he finds him. See Alexander v. White, 488 P.2d 1120, 1123 (Colo.App.1971), where the Bruckman situation is distinguished from a pre-existing condition scenario.

[B]ut it is quite another thing to say that a tort-feasor is liable, not only for the damage which he caused, but also for injuries subsequently suffered by the injured person.

Bruckman, 487 P.2d at 568.

The ultimate injuries were caused by the second collision which is a distinct intervening cause because the first injuries had stabilized. Consequently, it would be inappropriate to hold Marathon and Dixon liable for the entire damage when no correlation between the two accidents was shown. Essentially, Hashimoto did not prove that the second collision, which was the subsequent injury-producing act, was a sequela of the first collision. Additionally, no foreseeability of the second accident was shown by Hashimoto and consequently, the first injuries were not the proximate cause of the second accident. Proximate cause cannot be established by mere guess or conjecture, but rather must be proved by evidence of probative force as "based upon reasonable probabilities and which precludes the fact finder from having to make an arbitrary choice between unproved conclusions." State Nat. Bank of El Paso v. Farah Mfg. Co., 678 S.W.2d 661, 691 (Tex.App.1984).

Hashimoto has shown no reason for this court to abandon the general rule

that one injured by the negligence of another is entitled to recover the damages proximately caused by the act of the tort-feasor, and the burden of proof is upon the plaintiff to establish that the damages he seeks were proximately caused by the negligence of the defendant.

Bruckman, 487 P.2d at 568. See also Annotation, Proximate Cause: Liability of Tortfeasor for Injured Person's Subsequent Injury or Reinjury, 31 A.L.R.3d 1000, 1003-04 (1970).

In accord with our result, see Guerrero v. Bailey, 658 P.2d 278, 279 (Colo.App.1982), where the original and subsequent injuries were not physical in nature; Brown v. Kreuser, 38 Colo.App. 554, 560 P.2d 105, 109 (1977); Alexander, 488 P.2d at 1125-26; Jurney v. Lubeznik, 72 Ill.App.2d 117, 218 N.E.2d 799, 806 (1966); Becker v. D & E Distributing Co., 247 N.W.2d 727, 729 (Iowa 1976); McGuire v. Oliver, 227 So.2d 149 (La.App.1969), where the plaintiff was involved in three accidents within seventeen days; Bolin v. Hartford Acc. & Indem. Co., 204 So.2d 49, 51 (La.App.1967); Watkins v. Hand, 198 Neb. 451, 253 N.W.2d 287, 289 (1977); Armstrong v. Bergeron, 104 N.H. 85, 178 A.2d 293, 294 (1962); Williams v. Gragston, 7 Ohio App.3d 369, 455 N.E.2d 1075 (1982); and 22 Am.Jur.2d Damages § 115 (1988). See also G. Douthwaite, Jury Instructions on Medical Issues, ch. 9 at 512 (3d ed. 1987) which differentiates the Bruckman situation from one where the second injury is a result of ordinary medical malpractice.

This decision on burden of proof dispositively resolves Hashimoto's first five issues as presented by these facts.

2. Reasonable Certainty.

Hashimoto's next three issues concern the phraseology of jury instructions. Hashimoto alleges error in giving three instructions:


The defendants in this case have admitted liability and therefore you must fix the amount of money which will reasonably and fairly compensate Hashimoto for those elements of damage proved by the evidence to have been caused by the negligence of the Defendants, taking into consideration the nature, extent and duration of the injury.

The claimed elements of damage are:

(a) The pain and suffering experienced as a result of the injuries and those reasonably...

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