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Couch v. Astec Industries6/19/2002
e initial harm suffered at the hands of the original tortfeasor.").
Here, the enhanced injury claim arose in an unusual procedural context. Plaintiff claimed Defendant was liable for all of his injuries and made no distinction between original or enhanced injuries. In contrast, Defendant argued in a motion in limine that Plaintiff should not be allowed to argue that the absence of a pull cord led to his injuries unless he introduced evidence through a medical expert that its absence enhanced his injuries. The trial court denied this motion. When the parties submitted their requested jury instructions, neither sought an instruction on the enhanced injury theory.
However, when the trial court was reviewing the instructions to be given, Defendant argued that Plaintiff's claim regarding the absence of pull cords was really an enhanced injury claim. In other words, Defendant maintained that the absence of a pull cord served at worst to increase Plaintiff's exposure to the tail pulley, and had a pull cord been present, it would not have prevented Plaintiff's injury. Therefore, in Defendant's view, Plaintiff had to bear the burden of distinguishing between the injuries he would have sustained if the plant had been equipped with pull cords and the injuries he sustained without the pull cords. Plaintiff objected, arguing that the injuries he sustained were the result of "a continuous series of events precipitated by the defendant's defective product."
The trial court agreed with Defendant and instructed the jury accordingly. Plaintiff does not claim this as error in his cross-appeal, and we therefore do not address it. We assume, but do not decide, that Defendant's status as both the alleged original tortfeasor and the "crashworthiness" tortfeasor does not preclude application of the enhanced injury doctrine. See Farrell v. John Deere Co., 443 N.W.2d 50, 58 (Wis. Ct. App. 1989) (explaining that enhanced injury doctrine was properly applied even though successive tortfeasor also caused the initial accident); Kutsugeras v. AVCO Corp., 973 F.2d 1341, 1343-44 (7th Cir. 1992) (holding that trial court properly sent the jury a two-tier special verdict, separating the worker's cause of action into the entanglement phase and the enhancement phase). We also assume without deciding that the trial court properly imposed on Plaintiff the burden of proving the enhanced injury. Cf. Lewis v. Samson, 1999-NMCA-145, 83, 128 N.M. 269, 992 P.2d 282 (Hartz, J., dissenting) (noting that who bears the burden of proving enhanced injury damages is not clear under New Mexico law), rev'd on other grounds, 2001-NMSC-035, 131 N.M. 317, 35 P.3d 972.
To establish the elements of an enhanced injury , Plaintiff was required to prove (1) that the defective design caused injuries over and above those which otherwise would have been sustained, and (2) the degree of enhancement. The degree of enhancement may be established by proof of what injuries, if any, would have resulted had an alternative, safer design been used. Lewis, 2001-NMSC-035, 34.
Regarding the first element, there was evidence that, although a pull cord would not have prevented Plaintiff's initial contact with the conveyor belt, once activated, it would have prevented him from further entangling his leg. Several witnesses testified that Plaintiff's entanglement lasted anywhere from thirty seconds to "a couple of minutes." If a pull cord had been in place and if Plaintiff had tripped it, the cord would have automatically shut down the conveyor within seconds. Gallagher explained that if pull cords are designed properly, they act as a pressure-sensitive device that is automatically activated before the conveyor belt moves in
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