Schafer v. Hoffman

• Decision Date: 22 June 1992
• Docket Number: No. 91SC225,91SC225
• Citation: 831 P.2d 897
• Parties: Larry A. SCHAFER, Petitioner, v. Shirley S. HOFFMAN, Respondent.
• Court: Colorado Supreme Court

Page 897

831 P.2d 897

Larry A. SCHAFER, Petitioner, v. Shirley S. HOFFMAN, Respondent.

No. 91SC225.

Supreme Court of Colorado En Banc.

June 22, 1992.

Strate and Tondre, P.C., George J. Strate, David L. Fry, Wheat Ridge, for petitioner.

Bragg, Baker & Cederberg, P.C., Douglas E. Bragg, John T. Baker, Patrick J. Burke, Denver, for respondent.

Justice VOLLACK delivered the Opinion of the Court.

Petitioner, Larry Schafer (Schafer), petitions from a court of appeals decision in Hoffman v. Schafer, 815 P.2d 971 (Colo.App.1991). The court of appeals affirmed the judgment entered on a jury verdict in favor of Shirley Hoffman (Hoffman) in the amount of $715,000. We affirm.

I.

On January 15, 1988, Schafer struck Hoffman, a pedestrian, with his vehicle. Schafer was under the influence of alcohol and drugs at the time of the collision. As a result of the collision, Hoffman sustained numerous injuries, including a compression fracture in a spinal vertebra, a concussion with intracranial bleeding, a fractured femur in her left leg, and torn cartilage in her left knee. Hoffman also sustained other injuries to her left leg, left hand, and right elbow.

Hoffman filed an action against Schafer which proceeded to trial on January 3, 1989. Schafer admitted negligence in the operation of his vehicle but denied that his conduct was willful and wanton, and disputed the nature and extent of Hoffman's injuries. Schafer contended that Hoffman had pre-existing injuries for which he was not liable because they were not caused by his conduct.

Hoffman produced numerous witnesses at trial, including Dr. Rupp, her orthopedic surgeon. Dr. Rupp testified that he treated Hoffman shortly after the January 15, 1988, accident. Dr. Rupp was aware that Hoffman had developed thrombophlebitis (blood clots) in her left leg, around her knee, as a result of the accident. ¹ Hoffman took anticoagulant drugs in order to reduce clotting. As a result, Dr. Rupp could not perform surgery on Hoffman's knee until the clotting had sufficiently dissipated. Dr. Rupp referred Hoffman to a physical therapist, but determined early in the fall of 1988 that surgery was necessary based on the lack of improvement in her condition through the course of her therapy.

Dr. Rupp testified that he eventually performed arthroscopic surgery on Hoffman's left knee in December 1988, almost one year after the accident. The surgery revealed that Hoffman had severely torn and displaced cartilage, such that she could not move her left knee joint without severe pain. The surgery also revealed that she had minor softening of the underside of her left knee cap.

Dr. Rupp also testified that he confirmed that Hoffman suffered from causalgia (sensation of extreme pain) which generally occurs after injuries to extremities. ² Dr. Rupp testified that people can be predisposed to causalgia after previously contracting it.

On cross-examination, Schafer elicited testimony that Dr. Rupp had treated Hoffman two months prior to the accident, in November 1987, for pain in her right knee. She could not fully extend her knee at that time and was taking Motrin (a drug designed to decrease swelling of arthritic joints) on an as-needed basis. Dr. Rupp prescribed Darvocet, a mild pain killer, and Chlorinol, an anti-inflammatory drug, during November 1987.

During Dr. Rupp's cross-examination, Schafer also introduced medical records from 1978 indicating that Hoffman previously complained of intermittent low back pain and discomfort with forced flexion. ³ The records included a consultation report stating that Hoffman had problems with her knee for as long as four years (prior to the date of the report). ⁴ Dr. Rupp testified, however, that the 1978 medical records did not affect his opinion.

Hoffman also produced a second orthopedic surgeon, Dr. Phillip Ceriani, who testified that Hoffman was referred to him after the accident for an evaluation of whether Hoffman needed knee surgery. ⁵ On cross-examination, Schafer confronted Dr. Ceriani with a report indicating that Hoffman's vertebra fracture might be old. Dr. Ceriani testified, however, that the vertebra fracture was caused by the trauma of the accident.

Hoffman produced her physical therapist and a rehabilitation counselor. Jim Richardson, her physical therapist, testified on cross-examination that Hoffman's arthroscopic surgery revealed that she had degeneration in her knee caused by the normal aging process. Helen Woodward, a rehabilitation counselor, testified that she performed a vocational assessment at Hoffman's request and concluded that Hoffman was unemployable.

In summary, the jury heard evidence introduced by Schafer that Hoffman had complained of knee pain and lower back problems prior to the accident, and that the vertebra fracture might have occurred prior to the January 15, 1988, accident. The jury also was aware that Hoffman's knee had some degeneration as a result of the normal aging process, that Hoffman might be predisposed to causalgia, and that Hoffman's knee surgery was delayed longer than the average person's because of her blood clotting condition.

At the close of trial, Hoffman submitted a "thin skull" instruction which read as follows:

In determining the amount(s) of plaintiff's actual damages in each of the various categories set forth in Instruction No. 16, you may not refuse to award nor reduce the amount of any such damages because of any physical frailties of the plaintiff that may have made her more susceptible to injury, disability or impairment. ⁶

Schafer objected to the giving of this instruction on the grounds that the instruction told the jury that they may not refuse or reduce the amount of damages because of Hoffman's pre-existing physical ailments. Schafer contended that there was no evidence of aggravation of Hoffman's condition and thus Schafer could not be held liable for her pre-existing conditions. The district court, however, gave the challenged instruction to the jury.

The jury found for Hoffman, and Schafer appealed. The court of appeals concluded that the instruction was a proper statement of the law and that it was supported by the evidence in this case. Schafer petitions this court for a determination that the thin skull instruction is not a correct statement of law and that the court of appeals erred in holding that Hoffman was entitled to the instruction as her theory of the case. We disagree.

II.

The term "thin skull," or "eggshell skull," is derived from illustrations appearing in English cases wherein a plaintiff with an "eggshell skull" suffers death as a result of a defendant's negligence where a normal person would only suffer a bump on the head. Dulieu v. White & Sons, 2 K.B. 669, 679 (1901); W. Page Keeton et al., Prosser and Keaton on the Law of Torts § 43, at 292 (5th ed. 1984) [hereinafter "Prosser"] (citing Glanville Williams, The Risk Principle, 77 L.Q.Rev. 179, 193-97 (1961)). The negligent defendant is liable for the resulting harm even though the harm is increased by the particular plaintiff's condition at the time of the negligent conduct. Prosser § 43, at 291; see also Restatement (Second) of Torts § 461 cmt. a (1965) ("A negligent actor must bear the risk that his liability will be increased by reason of the actual physical condition of the other toward whom his act is negligent.").

As Prosser notes, there is almost universal agreement on this rule. Prosser § 43, at 291 ("There is almost universal agreement upon liability beyond the risk, for quite unforeseeable consequences, when they follow an impact upon the person of the plaintiff."). Liability "beyond the risk," however, is not solely premised on the existence of ascertainable pre-existing physical conditions:

The defendant is held liable when the defendant's negligence operates upon a concealed physical condition, such as pregnancy, or latent disease, or susceptibility to disease, to produce consequences which the defendant could not reasonably anticipate. The defendant is held liable for unusual results of personal injuries which are regarded as unforeseeable, such as tuberculosis, paralysis, pneumonia, heart or kidney disease, blood poisoning, cancer, or the loss of hair from fright.

Prosser § 43, at 291-92 (emphasis added). Some scholars have interpreted the thin skull doctrine to encompass the plaintiff's physical, mental, or financial condition. 4 Fowler Harper et al., The Law of Torts § 20.3 (2d ed. 1986). "And these preexisting conditions may have the greatest bearing on the extent of the injury actually suffered by any particular plaintiff in a given case. Thus the same slight blow in the abdomen might cause only fleeting discomfort to a man but a miscarriage to a pregnant woman." Id.

Under Colorado law, it is fundamental that a tortfeasor must accept his or her victim as the victim is found. Stephens and Kraftco Corp. v. Koch, 192 Colo. 531, 533, 561 P.2d 333, 334 (1977) ("As this court has made clear, a defendant must take his 'victim' as he finds him."); Fischer v. Moore, 183 Colo. 392, 394, 517 P.2d 458, 459 (1973) ("Under the common-law principles of tort law, it is axiomatic that the tort-feasor must accept the plaintiff as he finds him....").

Accordingly, under the thin skull doctrine, a tortfeasor "may not seek to reduce the amount of damages [owed to the victim] by spotlighting the physical frailties of the injured party at the time the tortious force was applied to him." Id. A thin skull instruction is appropriately given when the defendant seeks to avoid liability by asserting that the victim's injuries would have been less severe had the victim been an average person. See Priel v. R.E.D., Inc., 392 N.W.2d 65, 69 (N.D.1986) (citing Dulieu, 2 K.B. at 679) (holding that the defendant could not escape liability where plaintiff had a prior fragile condition making her more susceptible to certain injuries than the average person). ⁷

III.

Schafer contends that the foundation required...