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Hill v. McCall2/19/2002
e it was possible the herniated disk existed prior to the incident, it was his opinion the incident caused the herniated disk. Although possible, there is no evidence whatsoever in the record to this Court that Plaintiff's herniated disk existed prior to the 25 January 1999 incident.
Accordingly, as the record to this Court was devoid of evidence relating to a pre-existing condition, the trial court erred in instructing the jury on activation or aggravation of a pre-existing injury . Therefore, this case must be remanded for a new trial on the issue of damages. See Wooten, 117 N.C. App. at 359, 451 S.E.2d at 348.
New trial.
Judges HUNTER and TYSON concur.
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