Robinson v. All-Star Delivery, Inc.

• Decision Date: 28 December 1999
• Docket Number: No. 981563.,981563.
• Citation: 1999 UT 109,992 P.2d 969
• Parties: Stephen M. ROBINSON, Plaintiff and Appellant, v. ALL-STAR DELIVERY, INC., and Ashlee Koew, Defendants and Appellees.
• Court: Utah Supreme Court

992 P.2d 969

1999 UT 109

Stephen M. ROBINSON, Plaintiff and Appellant, v. ALL-STAR DELIVERY, INC., and Ashlee Koew, Defendants and Appellees.

No. 981563.

Supreme Court of Utah.

December 28, 1999.

Peter C. Collins, Tara L. Isaacson, James E. Morton, Salt Lake City, for plaintiff.

Joseph J. Joyce, Kristin A. Van Orman, Victoria Kidman, Salt Lake City, for defendants.

STEWART, Justice:

¶ 1 Plaintiff Stephen Robinson appeals from a jury verdict against defendants All-Star Delivery, Inc., and Ashlee Koew.¹ Robinson argues that the trial court committed reversible error by refusing to give a proposed jury instruction and allowing prejudicial evidence to be admitted. He seeks a new trial on damages. We affirm in part and reverse in part.

I. FACTS

¶ 2 We present the facts and all reasonable inferences drawn therefrom in the light most favorable to the jury verdict. See State v. Dunn, 850 P.2d 1201, 1205-06 (Utah 1993)

. In September 1995, Koew, an All-Star Delivery employee, rear-ended Robinson at a stop light in Salt Lake City. Koew was driving a Chevrolet Blazer, a sport utility vehicle, while Robinson was driving a Ford Fairlane station wagon.

¶ 3 Robinson was no stranger to car accidents. In November 1991, he was involved in a serious accident in which he was thrown 50 feet from his car and knocked unconscious. He sustained severe skull, hip, and femur fractures; underwent almost twenty surgeries; and spent nearly two years in the hospital.

¶ 4 Robinson sued All-Star Delivery and Koew, claiming the 1995 accident aggravated his preexisting injuries and caused new injuries. Defendants admitted liability and stipulated special damages in the amount of $3800, leaving the issue of general damages, i.e., Robinson's pain and suffering, to the jury.

¶ 5 At trial, the parties presented conflicting evidence as to whether Robinson's injuries arose from the 1991 accident or the 1995 accident. Dr. Horne, Robinson's treating physician, testified for Robinson that before the 1995 accident Robinson complained mostly of headaches and hip, leg, and neck pain. The day after the 1995 accident Robinson reported neck, upper and lower back, and leg pain. Dr. Horne diagnosed a possible refracture of the previous femur fracture, a lower back strain and sprain, and a compression fracture in the neck. Dr. Horne opined that the 1995 accident caused or aggravated Robinson's injuries to his leg, neck, and lower back. However, he acknowledged that he would have expected, due to the serious nature of Robinson's leg pain from the 1991 accident, that Robinson would still have felt leg pain in 1995. Furthermore, because Dr. Horne had not seen x-rays of Robinson's neck taken before the 1995 accident against which to compare the post-accident x-rays, he admitted the neck fracture could be preexisting. Finally, Dr. Horne testified that Robinson's lower back sprain was a category 1 sprain on a scale of 1-4 with 4 being the most severe.

¶ 6 Dr. Chung, an independent medical examiner, testified for defendants based on an extensive review of Robinson's medical records and a personally conducted patient history and physical examination. Dr. Chung concluded that it was more likely than not that Robinson's neck, back, and leg injuries each stemmed from the serious 1991 accident. However, Dr. Chung acknowledged that the 1995 accident could have caused a "flare up" or "some increase" in pain to Robinson's preexisting injuries.

¶ 7 Robinson testified that while he had previously been in pain from his 1991 accident, he had felt no leg, neck, or back pain immediately prior to the 1995 accident. Within ten minutes after the accident, however, Robinson said he felt pain in his leg, neck, and back. The neck pain lasted only two weeks. The leg pain lasted until October 1996 — over a year after the 1995 accident — when he underwent leg surgery that Dr. Horne had first recommended in 1993. Robinson had declined the surgery because of his busy school schedule. The back pain, Robinson testified, still existed at the time of trial in May 1998, exacerbated by the fact that he worked at a desk job as a computer network administrator. Despite the ongoing back pain, Robinson stopped visiting Dr. Horne one month after the 1995 accident, and stopped going to physical therapy for his back three months after the 1995 accident. As to the severity of the pain, Robinson stated that it had not required him to miss time from work; nor had it impeded his participation in major life activities, except for stream fishing and walking sports. Finally, Robinson testified that his back pain was not severe enough to warrant the epidural injections that Dr. Horne felt would have been 70-80% successful in reducing his back pain.

¶ 8 The jury awarded Robinson $1000 in general damages. Robinson argues that the trial court erred by (1) not giving his proposed jury instruction on aggravation of preexisting conditions; and (2) allowing evidence to be admitted that Robinson had received social security disability benefits after the 1991 accident and that Koew was not injured in the 1995 accident.

II. OBJECTION TO JURY INSTRUCTION

¶ 9 Robinson argues that the trial court erred in not giving his proposed instruction on aggravation of preexisting damages. We review a judge's refusal to give a jury instruction for correctness, as it is a question of law. See Tingey v. Christensen, 1999 UT 68, ¶ 10, 987 P.2d 588

; Ong Int'l (USA) Inc. v. 11th Ave. Corp., 850 P.2d 447, 452 (Utah 1993).

¶ 10 Robinson's proposed instruction stated:

When a pre-existing condition exists which makes the injurious effect of a collision greater than it would have been in the absence of such a pre-existing condition, it is your duty, if possible, to apportion the amount of disability and impairment, pain and suffering, and other damages, between those attributable to the pre-existing condition and those attributable to the collision. But if you find that the evidence does not permit such an apportionment, then you must determine that the entire disability, pain and suffering, and other damages, are attributable to the collision.

(Emphasis added.) The instruction actually given was based on Model Utah Jury Instruction, Civil 27.6 (1993), and differs from the proposed instruction in material respects. It stated:

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

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

When a pre-existing condition or disability is aggravated, damages for the condition or disability are limited to the additional injury caused by the aggravation.

¶ 11 In Tingey, this Court held that an instruction identical to Robinson's proposed instruction correctly stated the law. Tingey explained the basis for that instruction:

[It] follows from several legal principles: first, a tortfeasor takes a tort victim as he or she finds the victim; second, a tortfeasor should bear the burden of uncertainty in the amount of a tort victim's damages; and third, once the fact of damage is established, a defendant should not escape liability because the amount of damage cannot be proved with precision.

Tingey, 1999 UT 68, ¶ 14, 987 P.2d 588 (footnote, citations, and internal quotations omitted).

¶ 12 We also observe that the apportionment rules outlined in the proposed instruction are supported by the Restatement (Second) of Torts. Section 433A, Apportionment of Harm to Causes,² states:

(1) Damages for harm are to be apportioned among two or more causes where

(a) there are distinct harms, or

(b) there is a reasonable basis for determining the contribution of each cause to a single harm.

(2) Damages for any other harm cannot be apportioned among two or more causes.

Restatement (Second) of Torts § 433A (1965). Regarding subsection (2), comment i explains:

Certain kinds of harm, by their very nature, are normally incapable of any logical, reasonable, or practical division.... By far the greater number of personal injuries ... are thus normally single and indivisible. Where two or more causes combine to produce such a single result, incapable of division on any logical or reasonable basis, and each is a substantial factor in bringing about the harm, the courts have refused to make an arbitrary apportionment for its own sake, and each of the causes is charged with responsibility for the entire harm.

Id. at cmt. i.

¶ 13 Of course, as with any jury instruction, the facts of the case must merit the proposed instruction.³ For example, in a case where damages are clearly apportionable, the proposed instruction need not be given. See McDonald v. United Airlines, Inc., 365 F.2d 593, 594 (10th Cir.1966)

; LaMoureaux v. Totem Ocean Trailer Exp., Inc., 632 P.2d 539, 544-45 (Alaska 1981); McNabb v. Green Estate Co., 62 Mich.App. 500, 233 N.W.2d 811, 819-20 (1975); Bigley v. Craven, 769 P.2d 892, 895-98 (Wyo.1989).

¶ 14 In the instant case, the evidence was in conflict as to the apportionability of the damages. Dr. Horne testified that the 1995 accident caused most of Robinson's damages. Dr. Chung testified that the 1991 accident caused Robinson's injuries. Thus, the trial court should have instructed the jury on what to do if it was unable to apportion damages in a reasonable manner. ¶ 15 Based on Tingey and the principles stated above, it follows that the trial court erred in not giving Robinson's proposed instruction. We must now determine whether that error warrants reversal.

¶ 16 We have previously stated the circumstances in which a...