Opinion
No. 75-461
Decided May 13, 1976. Rehearing denied May 27, 1976. Certiorari granted July 26, 1976.
Personal injury action arising out of automobile accident that allegedly aggravated a pre-existing condition from which plaintiff suffered. From jury verdict for $250, plaintiff appealed.
Reversed
1. INSTRUIONS, CIVIL — Theory of Case — Plaintiff's Condition — "Aggravated and Accelerated" — One Word Omitted — No Error. Although it is the duty of the trial court to instruct the jury as to the law relevant to a party's theory of the case, so long as that theory is supported by some evidence adduced at trial, nevertheless, where, in personal injury action, record reveals that no special significance was attached to the word "accelerated" and both that word and "aggravated" were used to describe plaintiff's condition, the trial court did not err in failing to include "accelerated" in pertinent instruction it gave the jury.
2. DAMAGES — Pre-existing Condition — Aggravated — Burden of Proof — Apportionment — On Defendant. Where conduct of alleged tortfeasor aggravates in another a pre-existing condition and causes disability and pain that was not present before, where the injured party offers testimony of the aggregate pain and disability, and where there is no evidence from which it can be determined what portion of the disability and pain existed before the accident, then the person whose negligence caused the accident is liable for all of the pain and disability proved, but the negligent party can defend himself against this all-inclusive liability for damages by producing evidence that will enable the jury to apportion the present disability and pain between that resulting from the pre-existing condition and that caused by the accident.
3. INSTRUIONS, CIVIL — Pre-existing Condition — Aggravated — Appropriate Instruction — Stated. Where the plaintiff in a personal injury action claims and the evidence would support a finding that defendant's negligence aggravated a pre-existing condition of plaintiff, the appropriate jury instruction on this facet of damages should read, as follows: "Where a pre-existing condition exists which has been aggravated by the accident it is your duty, if possible, to apportion the amount of disability and pain between that caused by the pre-existing condition and that caused by the accident. The burden of proof on this issue is upon the defendant to establish that portion of plaintiff's present condition for which the defendant is not responsible and if you find that the evidence does not permit such an apportionment, then the defendant is liable for the entire disability."
Appeal from the District Court of the County of Jefferson, Honorable Winston W. Wolvington, Judge.
Richard A. DeZengremel, Blaine A. Rutenbeck, Irvin M. Kent, for plaintiff-appellant.
Zarlengo, Mott Zarlengo, Richard T. Spriggs, Reed Winbourn, for defendants-appellees.
Division III.
Plaintiff Herbert Koch filed suit to recover for injuries allegedly suffered when a car driven by defendant Cynthia Stevens collided with the rear of the automobile he was driving. Prior to the accident, plaintiff suffered from an abdominal aneurysm, which was allegedly aggravated by the collision. A jury awarded plaintiff $250 in damages, and he appeals.
Two issues are raised, both of which concern Colo. J.I. 6:8, which was given by the trial court in this case: (1) Whether the trial court erred in instructing the jury that plaintiff should recover for any pain and disability caused by the "aggravation" of his condition rather than for that caused by "aggravation or acceleration" of that condition; and (2) whether the trial court erred in not clearly instructing the jury that, to avoid liability for the full extent of plaintiff's damages, it was defendant's burden to produce sufficient evidence to enable the jury to effect an apportionment between that pain and disability resulting from the pre-existing condition and that caused by the collision.
Relative to the first issue, we approve of Colo. J.I. 6:8, as given, but, as to the second, we rule that the instruction is not clear as to the burden of proof on apportionment and that the trial court erred in not modifying the pattern instruction in such a way as to clarify that issue. Accordingly, we reverse and remand for a new trial on the issue of damages.
I.
It is the duty of the trial court to instruct the jury as to the law relevant to a party's theory of the case, so long as that theory is supported by some evidence adduced at trial. See Haller v. Gross, 135 Colo. 218, 309 P.2d 598; Maloney v. Jussel, 125 Colo. 125, 241 P.2d 862. On this basis, plaintiff contends that, since it was testified that the accident "accelerated" plaintiff's condition, the trial court was obliged to include that word in its instruction.
[1] The record, however, reveals that during the trial neither the parties nor the witnesses attached any special significance to the word "accelerated." While plaintiff's expert medical witness testified on direct examination that plaintiff's condition was "accelerated" by the collision, he acceded without protest to use of the word "aggravated" during cross-examination. Furthermore, the parties and succeeding witnesses uniformly considered plaintiff's injury in terms of "aggravation" rather than "acceleration." For this reason we reject plaintiff's argument and hold that Colo. J.I. 6:8, as given by the trial court adequately presented plaintiff's theory of damages to the jury.
II.
In instructing the jury on defendant's obligation to establish that portion of plaintiff's post-accident condition for which she is not responsible, the trial court, in accordance with Colo. J.I. 6:8, used the following language:
"Where a pre-existing condition exists which has been aggravated by the accident it is your duty, if possible, to apportion the amount of disability and pain between that caused by the pre-existing condition and that caused by the accident. But if you find that the evidence does not permit such an apportionment, then the defendant is liable for the entire disability."
Plaintiff argues that, since this instruction did not explain whose responsibility it was to produce evidence concerning the apportionment of damages, it failed fully to advise the jury of the way in which it should consider the apportionment issue. We agree.
[2] Where the conduct of one party aggravates in another a pre-existing condition and causes disability and pain that was not present before, where the injured party offers testimony of the aggregate pain and disability, and where there is no evidence from which it can be determined what portion of the disability and pain existed before the accident, then the person whose negligence caused the accident is liable for all of the pain and disability proven. Newbury v. Vogel, 151 Colo. 520, 379 P.2d 811. The negligent party can defend himself against this all-inclusive liability for damages by producing evidence that will enable the jury to apportion the present disability and pain between that resulting from the pre-existing condition and that caused by the accident. Brittis v. Freemon, 34 Colo. App. 348, 527 P.2d 1175. Since only the negligent party can derive any benefit from evidence of apportionment, it follows that the injured party has no obligation to produce such evidence. Apportionment thus is a matter which if proven will limit the liability of the defendant.
The trial court properly instructed the jury that plaintiff had the burden of proving his case and that defendant had the burden of proving any affirmative defense by a preponderance of the evidence. See Colo. J.I. 3:1, C.R.C.P. 51.1. It also informed the jury that it could award damages to plaintiff only insofar as they were established by the evidence, see Colo. J.I. 6:1, C.R.C.P. 51.1, and that the challenged instruction was to be considered in relation to the other instructions. See Colo. J.I. 4:1; C.R.C.P. 51.1. However, it did not instruct the jury that defendant had the burden of establishing that part of plaintiff's condition for which she was not responsible.
An instruction that could lead the jury to place upon the plaintiff the burden of establishing to what extent the defendant is not responsible for his present condition would be erroneous. Hylton v. Wade, 29 Colo. App. 98, 478 P.2d 690. Likewise, because it is impossible to determine by which instruction the jury was guided in reaching its verdict, the submission of conflicting instructions upon the burden of proof is error. Barr v. Colorado Springs Interurban Ry., 63 Colo. 556, 168 P. 263; Nutt v. Davison, 54 Colo. 586, 131 P. 390. Furthermore, if the effect of an instruction to which an objection has been made is to cause the jury to speculate, it is sufficient to render a new trial necessary, even though the instruction itself may be technically correct. Huguley v. Trolinger, 169 Colo. 1, 452 P.2d 1006.
The instruction as given here may well have led the jury to conclude that it was plaintiff's obligation to show the extent to which defendant's negligence was the proximate cause of plaintiff's present condition, and that, failing in this obligation, plaintiff would be entitled to little or no damages. It is therefore impossible to ascertain, in the instant case, whether the jury's verdict resulted from this conclusion or from a determination that defendant's negligence was the proximate cause of only $250 of the total damages proven.
Defendants assert that a "common sense reading" of the quoted instruction would necessarily lead the jury to infer defendant's obligation to introduce evidence on which an apportionment could be based. The basic purpose of an instruction is to explain the law to non-legally trained jurors in such terms that there can be no misunderstanding as to how the law relates to and defines their duties with respect to the case submitted for their consideration. See Poos v. Poos, 145 Colo. 334, 359 P.2d 3. Although the failure to achieve this goal is not necessarily reversible error, see Simms v. People, 174 Colo. 85, 482 P.2d 974; Nelson v. Nelson, 27 Colo. App. 104, 146 P. 1079, to rely upon inferences drawn from a "common sense reading" of the instruction in this case is to fall short of accomplishing that purpose since the instruction could have been clearly and unequivocally worded.
[3] For the reasons given we hold that the pertinent portion of Colo. J.I. 6:8 should be modified to read as follows:
"Where a pre-existing condition exists which has been aggravated by the accident it is your duty, if possible, to apportion the amount of disability and pain between that caused by the pre-existing condition and that caused by the accident. The burden of proof on this issue is upon the defendant to establish that portion of plaintiff's present condition for which the defendant is not responsible and if you find that the evidence does not permit such an apportionment, then the defendant is liable for the entire disability." (Added portion emphasized)
This instruction, as we have changed it here, continues to be inapplicable in a situation such as that presented in Bruckman v. Pena, 29 Colo. App. 357, 487 P.2d 566. In Bruckman, the plaintiff sued to recover for injuries suffered as a result of defendant's negligence, which injuries were subsequently aggravated in a second accident not the responsibility of the defendant. In such circumstances, the principle governing the instant case, i.e., that a defendant must take his victim as he finds him, Brittis v. Freemon, supra, is inapplicable. Instead. the problem, as it is in any other case, is one of determining the damages which naturally and probably resulted from the defendant's negligence. See Colo. J.I. 9;26 9:27.
The plaintiff is, in the Bruckman situation, therefore, not entitled to an instruction placing the burden of proof upon the defendant to prove what portion of plaintiff's condition is attributable to his subsequent injury. It is one thing to hold a tort-feasor who injures one suffering from a pre-existing condition liable for the entire damages when no apportionment between the pre-existing condition and the damage caused by the defendant can be made, but 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 and resulting from independent or intervening causes. Bruckman v. Pena, supra.
The judgment is reversed, and the cause is remanded for a new trial on the issue of damages.
JUDGE PIERCE and JUDGE BERMAN concur.