Reichert v. Vegholm

• Decision Date: 30 January 2004
• Citation: 840 A.2d 942,366 N.J. Super. 209
• Parties: Lois REICHERT, Plaintiff-Appellant, v. Josefina VEGHOLM, Russell Van Kampen, Defendants-Respondents, and Arthur I. Gates, Defendant.
• Court: New Jersey Superior Court

840 A.2d 942

366 N.J. Super. 209

Lois REICHERT, Plaintiff-Appellant, v. Josefina VEGHOLM, Russell Van Kampen, Defendants-Respondents, and Arthur I. Gates, Defendant.

Superior Court of New Jersey, Appellate Division.

Argued December 2, 2003.

Decided January 30, 2004.

William D. Sanders, West Orange, argued the cause for appellant (Alpert, Butler, Sanders, Norton & Bearg, attorneys; Mr. Sanders and Clark E. Alpert, of counsel and on the brief).

John F. Gaffney, Morristown, argued the cause for respondents (Smetana, Mahoney & Gaffney, attorneys; Mr. Gaffney, on the brief).

Before Judges STERN, LEFELT and PAYNE.

The opinion of the court was delivered by LEFELT, J.A.D.

Plaintiff Lois Reichert fell while going to her dentist, defendant Arthur Gates, and injured her arms, neck, and knee. Approximately 24 days later, Reichert claims to have injured the same parts of her body in an automobile collision with a car driven by defendant Josefina Vegholm and owned by defendant Russell Van Kampen. Reichert sued the three defendants, settled with Gates, and proceeded to a damagesonly trial against the automobile defendants, Vegholm and Van Kampen. The jury found no cause of action based upon its finding that Reichert did not sustain either an injury or an aggravation of any injury as a proximate cause of the automobile accident.

Reichert appealed, contending that the trial court erroneously instructed the jury that plaintiff, and not defendants, bore the burden of apportioning damages between Reichert's fall and the automobile accident. Because this automobile accident case involves a simple aggravation of a pre-existing injury, the judge's charge properly placed the burden of apportioning damages on plaintiff, and we affirm.

I.

For purposes of this opinion, we accept Reichert's contentions and assume that she suffered injuries to the same parts of her body from the fall and the automobile collision, less than one month later. With this factual assumption, we need not describe the evidence that was presented at trial and add only the following brief procedural history.

At the trial, after Reichert's medical expert claimed to be unable to apportion plaintiff's damages between the fall and collision, Reichert argued in response to defendant's motion to dismiss plaintiff's complaint, which was made at the end of testimony, that the Model Jury Charge (Civil), § 6.11(G) (Jan.1997), for aggravation of preexisting injuries, which she had previously requested, should not be given. The judge nevertheless instructed the jury in accordance with the Model Charge and told the jury that plaintiff could recover for the aggravation or worsening of her injuries, "but only to the extent of that aggravation." The judge then informed the jury that plaintiff had the burden of proving what portion of her condition was due to her fall and what portion was attributable to the automobile collision. According to the instruction, Reichert would be entitled to damages against the automobile defendants only for those injuries attributable to the automobile collision, either because the collision aggravated injuries suffered in the fall or resulted in separate identifiable injuries.

On appeal, Reichert argues the charge, placing the damage apportionment burden on plaintiff, erroneously caused the jury to decide against her. Accordingly, Reichert requests that we reverse the jury's verdict of no cause of action and remand for a new trial at which the jury would be instructed that defendants bear the burden of apportioning plaintiff's damages between the fall and collision.

II.

We start our analysis with the well-recognized principle that to prevail against a negligent defendant, plaintiff must prove not only that defendant was negligent but also that defendant's negligence was a proximate cause of the injuries and damages suffered. E.g., Paxton v. Misiuk, 34 N.J. 453, 463, 170 A.2d 16 (1961). A defendant should generally be responsible only for "the value of the interest he [or she] destroyed." Scafidi v. Seiler, 119 N.J. 93, 112, 574 A.2d 398 (1990). Apportionment of damages has long been favored by our courts. Poliseno v. Gen. Motors Corp., 328 N.J.Super. 41, 55, 744 A.2d 679 (App.Div.), certif. denied, 165 N.J. 138, 754 A.2d 1213 (2000).

While we recognize the importance of apportioning damages, it has not been easy to determine whether plaintiff or defendant should bear the burden of damage apportionment in specific cases. Placement of this burden can be determinative of whether an injured plaintiff is compensated. "[W]hen the burden is on plaintiff to apportion damages between particular defendants and prior or subsequent injuries or conditions, the result of failure to carry the burden may be dismissal of plaintiff's case." O'Brien (Newark) Cogeneration, Inc. v. Automatic Sprinkler Corp. of America, 361 N.J.Super. 264, 275, 825 A.2d 524 (App.Div.2003). Nevertheless, the general rule is that "the burden of proof that the tortious conduct of the defendant has caused the harm to the plaintiff is upon the plaintiff." Restatement (Second) of Torts, § 433B(1) (1965).

The general rule does not change when plaintiff's injuries or conditions are aggravated by a subsequent accident. "In the normal prior or post-personal injury aggravation claim, the party in the best position to present evidence of non-aggravation or exacerbation is plaintiff." O'Brien, supra, 361 N.J.Super. at 274, 825 A. 2d 524. In such a case, it is plaintiff who would best understand how a defendant's tort has affected or is related to prior or subsequent injuries or conditions. That is why when a plaintiff claims that an accident aggravated a prior injury or condition, it is plaintiff who "must prove what damages a particular defendant caused." Id. at 275, 825 A.2d 524.

To prevail in the ordinary aggravation of injury case, therefore, plaintiffs must separate those damages caused by a particular defendant's negligence from any prior or post injuries or conditions. E.g., Blanks v. Murphy, 268 N.J.Super. 152, 162, 632 A.2d 1264 (App.Div.1993) (plaintiff suffered injuries before and after auto accident for which suit was brought); Goodman v. Fairlawn Garden Assocs., Inc., 253 N.J.Super. 299, 302, 601 A.2d 766 (App. Div.), (plaintiff injured in fall and auto accident), certif. denied, 130 N.J. 7, 611 A.2d 647 (1992); Tisdale v. Fields, 183 N.J.Super. 8, 10-11, 443 A. 2d 211 (App.Div.1982)(injury in bus aggravated plaintiff's preexisting condition).

III.

Sometimes, however, the burden of proof to apportion damages is shifted from plaintiff to defendant. One of the leading cases shifting the apportionment of damages burden from plaintiff to defendant is Fosgate v. Corona, 66 N.J. 268, 272-73, 330 A.2d 355 (1974). In Fosgate, plaintiff alleged that she was injured when defendant doctor failed to diagnose that she was suffering from tuberculosis and thereby allowed the disease over time to become "far advanced" and more difficult to control. Id. at 270, 330 A.2d 355.

In determining to shift the damage apportionment burden to defendant doctor, the Court first observed that when the claimed malpractice involves treatment of preexisting disease, "the assessment of damages poses a problem because of the practical difficulty in separating that part of the harm caused by the malpractice from the preexisting disease and its normal consequences." Id. at 272, 330 A.2d 355.

The Court further stated that, considering the difficulty of apportioning damages in such malpractice cases, "the innocent plaintiff should not be required to establish what expenses, pain, suffering, disability or impairment are attributable solely to the malpractice or tortious act, but that the burden of proof should be shifted to the culpable defendant who should be held responsible for all damages unless he can demonstrate that the damages for which he is responsible are capable of some reasonable apportionment and what those damages are." Id. at 272-73, 330 A.2d 355.

The Court went on in Fosgate to explain, by quoting Prosser, that the reason for this principle is that a "choice must be made, as to where the loss due to failure of proof shall fall, between an entirely innocent plaintiff and defendants who are clearly proven to have been at fault and to have done him [or her] harm." Id. at 273, 330 A.2d 355 (quoting Prosser, Law of Torts, § 52 at 319 (4th ed.1971)).

Fosgate has been applied to shift the apportionment burden to defendant in other medical malpractice cases, generally when plaintiff's injury was induced by defendant's malpractice combined with other concurrent causes not attributable to defendant doctor's alleged negligence. E.g., Lanzet v. Greenberg, 126 N.J. 168, 189, 594 A.2d 1309 (1991) (plaintiff lapsed into persistent vegetative state when surgeons failed to terminate cataract surgery to attend to plaintiff's declining vital signs); Scafidi, supra, 119 N.J. at 112-13, 574 A.2d 398 (premature birth and death ensued after defendant doctor failed to treat early labor problems); Ostrowski v. Azzara, 111 N.J. 429, 443-44, 545 A.2d 148 (1988) (toenail removal and plaintiff's failure to follow post-treatment plan resulted in bypass surgery and eventual amputation of leg); Cowan v. Doering, 111 N.J. 451, 461-62, 545 A.2d 159 (1988) (doctors treating plaintiff at hospital for sleeping pill overdose failed to guard against plaintiff's suicidal tendencies, and she jumped from second story window, sustaining injury); Bendar v. Rosen, 247 N.J.Super. 219, 232, 588 A.2d 1264 (App.Div.1991) (doctor's negligence and auto tortfeasor's negligence causally related to plaintiff's abortion); Lewis v. Preschel, 237 N.J.Super. 418, 423, 568 A.2d 106 (App.Div.1989) (doctor negligently conducted open reduction of fractured arm sustained in an auto accident).

Over the years, we have struggled with whether Fosgate should be applied to cases other than medical malpractice. When Fosgate explained that it was...