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WAITS v. UNITED FIRE & CAS. CO.12/24/1997
struction should not be given when there is evidence allowing the jury to apportion the plaintiff's present disability between her prior condition and the injury caused by the tortfeasor. It relies on Bashara's testimony that in his opinion Waits presently has a twelve percent permanent partial physical impairment of her body as a whole because of her back condition and that two percent of this impairment is attributable to Waits' back condition resulting from her 1987 injury. Notably, United Fire points to no testimony that Waits had a two percent impairment before the 1992 accident.
We disagree with United Fire's contention that Bashara's testimony precluded an eggshell plaintiff instruction. Unless the jury believed that Waits had a two percent impairment before the accident, the fact that her subsequent disability can be apportioned between the current injury and a prior nondisabling, asymptomatic condition does not prevent her from recovering damages for the entire disability from Fay. Under the eggshell plaintiff rule, the current injury is the proximate cause of Waits' entire disability, even though that disability is two percent greater than it would have been without her prior back injury.
United Fire also claims there was evidence demonstrating Waits' condition was progressive and would have worsened even in the absence of the 1992 accident. Again, this evidence, even if believed by the jury, does not prevent application of the eggshell plaintiff rule. "A tortfeasor is liable for damages suffered by an `eggshell' plaintiff which are a natural consequence of the accident, even though the plaintiff may inevitably suffer similar injuries from a pre-existing condition unrelated to the accident." Sumpter v. City of Moulton, 519 N.W.2d 427, 434 (Iowa App. 1994).
D. Conflict between aggravation instruction and eggshell plaintiff instruction. United Fire contends the jury should have been instructed more fully on which instruction to follow. In essence, this contention is really a claim that the instructions in their present form are conflicting and confusing. Upon our review of the instructions as a whole, we agree the jury needed additional guidance under the unusual circumstances here, where both an aggravation instruction and an eggshell plaintiff instruction were submitted in the same case. [572 NW2d Page 577]
The evidence was undisputed that Waits had a prior or pre-existing back condition, and that her back was further injured or reinjured in the accident. The fighting issue was whether some of her present pain and disability was attributable to her prior back condition and if so, whether that portion of her damages was recoverable from Fay. Under the instructions given, the jury was required to distinguish between "a pre-existing condition" that was made worse, i.e. aggravated, by the accident, and "a prior condition" that made the plaintiff more susceptible to injury. In the trial court's view, the testimony here would have permitted the jury to find both circumstances existed; in other words, the jury could have concluded Waits' back condition made her more susceptible to injury and was aggravated by the 1992 accident. Under these circumstances, both instructions would apply, giving rise to a direct conflict in what the jury was to do. One instruction told the jury Waits could not "recover for any physical ailment . . . which existed before this incident" and the other instruction told the jury she could recover "for all injuries and damages . . . proximately caused by , even though the injuries claimed produce a greater injury than those which might have been experienced by a normal person." We think the confusion in this case is partially attributable to t
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