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WAITS v. UNITED FIRE & CAS. CO.12/24/1997
ges which are experienced by Lori Gail Waits proximately caused by Theresa Fay's actions, even though the injuries claimed produce a greater injury than those which might have been experienced by a normal person under the same circumstances.
United Fire claims the court erred in giving the latter instruction, commonly referred to as the "eggshell plaintiff" instruction, for two reasons: (1) there is no evidentiary support for this instruction; and (2) the jury was given no guidance as to the circumstances that would warrant application of this instruction rather than the prior instruction.
B. Principles for review of instructions. We review a trial court's instructions for correction of legal error. See McCarthy, 572 N.W.2d at 545. A material misstatement of the law warrants reversal. See Benn v. Thomas, 512 N.W.2d 537, 539 (Iowa 1994). It is also reversible error to submit an instruction having no support in the record. See Bradt v. Grell Constr., Inc., 161 N.W.2d 336, 340 (Iowa 1968). "When considering whether evidentiary support for an instruction exists, we give the evidence the most favorable construction it will bear." Hughes v. Massey-Ferguson, Inc., 522 N.W.2d 294, 295 (Iowa 1994). Finally, reversal is required when instructions are conflicting and confusing. See Moser v. Stallings, 387 N.W.2d 599, 605 (Iowa 1986). An instruction is not confusing if, when the instructions are considered as a whole, one must conclude "that the jury could not have misapprehended the issue presented by the challenged instruction." Id. With these principles in mind, we turn now to United Fire's objections to the eggshell plaintiff instruction. [572 NW2d Page 576]
C. Evidentiary support for eggshell plaintiff instruction. Waits testified to the following facts at trial. Waits injured her back in 1987 during the course of her employment with Pella Corporation. She was treated conservatively for this injury and eventually returned to the same assembly-line job she had before her work-related back injury. Between late 1987 and the car accident in 1992, Waits had no back pain or disability. During this period, she performed her job and engaged in other physical activities such as walking and biking with no problem. After the 1992 accident, however, Waits immediately experienced low back pain. When conservative measures proved unhelpful, Waits had surgery to remove a herniated disc at the L5-S1 level.
Dr. Bashara, Waits' treating physician, testified that Waits had a herniated disc at the same level in 1987 and that it "had healed." He said it was possible that Waits would be asymptomatic after her 1987 injury , but that her prior injury would make her more susceptible to a back injury in 1992. He further testified that surgery was not inevitable after the 1987 injury and in the majority of cases involving injuries similar to Waits' 1987 injury, the patient will heal without surgery.
The testimony of Waits and Bashara provided a factual basis for the court's instruction on the eggshell plaintiff rule. From this evidence the jury could conclude that Waits' back condition was a nondisabling, asymptomatic condition that made her more susceptible to injury than a normal person. See Becker v. D & E Distrib. Co., 247 N.W.2d 727, 731 (Iowa 1976) (applying rule where tortious act superimposed on a "dormant condition" resulted in pain and disability, and holding tortfeasor liable for the full disability). Under these circumstances, the jury would have been entitled to apply the eggshell plaintiff rule and hold Fay responsible for all injuries and damages experienced by Waits as a result of the 1992 accident.
United Fire argues, however, that the eggshell plaintiff in
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