June 14, 2013, Utah Supreme Court Case Summaries

June 14, 2013

Supreme Court of the State of Utah

Harris v. ShopKo Stores, Inc., 2013 UT 34, Case No. 20110945 (June 14, 2013)

ISSUE: Personal Injury Apportionment Jury Instructions

Chief Justice Durrant,

Wendy Harris was injured when she sat on a display office chair at ShopKo Stores, Inc. (ShopKo), and the chair collapsed. She sued ShopKo for negligence. At the trial, evidence was introduced that she suffered from preexisting conditions that may have contributed to her injury. The trial court instructed the jury that, if it could, it should apportion damages between those attributable to ShopKo’s negligence and those attributable to her preexisting conditions. The jury found ShopKo negligent but awarded Ms. Harris substantially less than she requested in damages. She appealed.

At ¶1.

The court of appeals reversed the jury’s award and remanded for a new trial. It did so on the ground that the trial court had erred in giving the apportionment jury instruction. The court of appeals held that, because Ms. Harris’s preexisting conditions were asymptomatic on the date of the accident, ShopKo was not entitled to a jury instruction permitting the jury to allocate some portion of the damages to Ms. Harris’s preexisting conditions. We conclude that this approach is inconsistent with a core principle of tort law: defendants are liable only for those injuries proximately caused by their negligence. . . . While we conclude the court of appeals erred in this regard, however, we nevertheless affirm that court’s grant of a new trial. We do so because at trial ShopKo did not present evidence sufficient for the jury to apportion damages on a nonarbitrary basis.

At ¶ 2.

The Court reviews the facts of the case.

At ¶ 3–15.

The court of appeals reversed the jury’s award and remanded for a new trial on the ground that the trial court erred in giving the Apportionment Instruction. On certiorari, ShopKo argues that the court of appeals applied the wrong legal standard when it concluded that preexisting conditions must be symptomatic on the day of the accident in order to justify apportioning damages. ShopKo also argues that the court of appeals erred in holding that there was insufficient evidence to support giving the Apportionment Instruction.

At ¶ 17.

We decline to adopt the legal standard applied by the court of appeals because it requires a bright-line approach that is inconsistent with the principle of proximate cause, which should be the overarching and guiding principle in the analysis. But we nevertheless agree that the Apportionment Instruction was improper because the evidence at trial failed to provide a nonarbitrary basis for the jury to apportion damages. We therefore affirm the court of appeals’ decision to order a new trial in this case.

At ¶ 18.

In deciding whether the Apportionment Instruction was properly given, the court of appeals determined that the “crucial question” in the analysis is whether the preexisting condition was symptomatic on the date of the injury. Under the court’s approach, a preexisting condition provides a basis for apportionment if, but only if, it is symptomatic on the date of the tortious conduct. Thus, in the eyes of the court, “a victim with latent, dormant, or otherwise asymptomatic pre-existing conditions stands on equal footing with a victim with no pre- existing conditions.” In other words, under the court’s analysis, a preexisting condition that is asymptomatic on the date of the accident cannot justify any reduction in damages.

At ¶ 19.

In Brunson v. Strong, we recognized that “one who injures another takes him as he is.” Thus, a plaintiff is entitled to recover for all harm that is proximately caused by the defendant’s negligence, “even if a given plaintiff is more vulnerable to injury than others.” But this principle, commonly known as the eggshell plaintiff doctrine, in no way bars consideration of other relevant potential sources of a plaintiff’s pain in determining the extent of damage proximately caused by the defendant.

At ¶ 23.

Indeed, we further recognized in Brunson that although an injured party is taken “as he is, nevertheless the plaintiff may not recover damages for any pre-existing condition or disability she may have had which did not result from any fault of the defendant.” And while “she is entitled to recover damages for any injury she suffered, including any aggravation . . . of such a pre-existing condition,” she may only do so to the extent that the aggravation “was proximately caused by the defendant’s negligence.” Moreover, in Tingey v. Christensen, we stated that “if the jury can find a reasonable basis for apportioning damages between a preexisting condition and a subsequent tort, it should do so.”

At ¶ 24.

These cases highlight the fundamental aim in deciding damages: “to restore the injured party to the position he would have been in had it not been for the wrong of the other party.” Proximate cause plays a central role in determining the precise extent of the defendant’s liability and, in turn, what the plaintiff’s position would have been absent the defendant’s negligence.

At ¶ 25.

The eggshell plaintiff doctrine does not alter this aim. It has never required tortfeasors to compensate plaintiffs for damages that the tortfeasors’ negligence did not proximately cause. In our view, however, the court of appeals’ narrow, bright-line approach to the eggshell plaintiff doctrine is inconsistent with this aim of awarding damages. An asymptomatic preexisting condition may well be an independent contributor to a plaintiff’s pain and injury, which was also proximately caused to some degree by a tortfeasor’s negligence. But the court of appeals’ approach would prevent the jury from apportioning damages between the preexisting condition and the negligence simply because the preexisting condition was not symptomatic on the date of the accident. In our view, this result is potentially arbitrary and risks holding defendants liable for more than they proximately caused in damages. We accordingly conclude that whether a preexisting condition is symptomatic or asymptomatic on the date of the accident is not the determinative factor in granting an apportionment instruction.

At ¶ 26.

While were affirm the jury’s duty to apportion damages if the evidence supports doing so, we recognize that it is rarely easy to determine the causal contribution of a preexisting condition to a plaintiff’s pain and injury. The “[o]bjective symptoms and the physical basis of . . . ailment[s] are often difficult to discover, analyze and demonstrate to others.” If the preexisting condition is asymptomatic at the time of the tortious conduct, the analysis will be even more difficult. But the “evaluation and the conclusion to be drawn [from the evidence] is peculiarly within the province of the jury.” Indeed, proximate cause—although often a thorny issue—is generally a question of fact for the jury to decide.

At ¶ 27.

We are also confident that our case law already provides sufficient protection for eggshell-type plaintiffs even without the court of appeals’ bright-line approach. In Tingey, we recognized that “a tortfeasor should bear the burden of uncertainty in the amount of a tort victim’s damages.” We accordingly held that while a jury should apportion if it can, “it should find that the tortfeasor is liable for the entire amount of damages” if it “finds it impossible to apportion.” Thus, the burden is on the defendant to demonstrate that apportionment is possible where there is any uncertainty.

At ¶ 28.

Because a jury should apportion damages if the evidence indicates that the defendant’s conduct was not the sole proximate cause of the plaintiff’s injury, we decline to adopt the court of appeals’ bright-line approach of focusing on whether the condition was asymptomatic or symptomatic on the date of the accident. We next consider whether there was sufficient evidence to support giving the Apportionment Instruction in this case.

At ¶ 30.

Expert Testimony for Allocating Cause

In the instant case, we conclude that expert testimony allocating causation between Ms. Harris’s preexisting conditions and her fall at ShopKo was necessary in order for an apportionment instruction to be given. The evidence supports a reasonable inference that Ms. Harris had previously suffered injuries in car accidents and that she had a number of preexisting conditions at the time of her fall. For example, Dr. Colledge, who testified for ShopKo, stated that he believed Ms. Harris had an annular tear, which could be a sign of degenerative disc disease. He also testified that Ms. Harris’s back pain was consistent with degenerative disc disease and suggested that her facet joint syndrome may have predated, and been aggravated by, her fall at ShopKo.

At ¶ 35.

Although expert testimony allocating causation is necessary for an apportionment instruction on remand, the testimony need not opine on the exact percentage, if any, of the injury attributable to Ms. Harris’s preexisting conditions. In an ideal world, an expert would provide a precise estimation (e.g., “Fifty percent of the injury is attributable to the preexisting condition.”). But we must account for the reality of medical uncertainty. An apportionment instruction will not be precluded if the testimony presents a reasonable range of percentages (e.g., “Forty to sixty percent of the injury is attributable to the preexisting condition.”) or a useful nonnumeric description (e.g., “The vast majority of the injury is attributable to the preexisting condition.”). The determinative question is whether the expert testimony has supplied the jury with a nonarbitrary basis for apportioning damages.

At ¶ 38.

The court of appeals’ bright-line approach to analyzing preexisting conditions, focusing exclusively on whether a condition was symptomatic or asymptomatic on the date of the accident, risks holding defendants liable for more damages than they proximately caused. We therefore decline to adopt it. We also conclude that the Apportionment Instruction was erroneous and prejudicial because (a) the evidence failed to supply the jury with a nonarbitrary basis for apportioning damages, and (b) there is a reasonable likelihood the jury apportioned damages. On the facts of Ms. Harris’s case, an apportionment instruction requires expert testimony on the portion of the plaintiff’s injury that is attributable to her preexisting conditions. Accordingly, we affirm and remand to the court of appeals to order a new trial consistent with this opinion.

At ¶ 41.