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Potts v. Litt11/5/1991
ficult to apportion Potts's damages, it was not impossible.
The Litts requested that the trial court give the following instruction instead of Potts's requested instruction:
You are instructed that a person who is claimed to be liable for personal injuries can only be liable to the extent of the injuries, if any, caused by himself.
In other words, if Plaintiff has not proved by a preponderance of the evidence an apportionment of the damages between those for which Defendant Litt is claimed to be liable and those attributable to other conditions or accidents, you may not render a verdict for any such damages.
The basis for both the objection to Potts's instruction and the refusal of the Litts' instruction was the same. The Litts agreed with Disney's contention that the indivisible injury rule did not apply to the facts of this case and argued that the correct statement of the applicable law was that given in City of Scottsdale v. Kokaska, 17 Ariz. App. 120, 495 P.2d 1327 (1972). In that case the court ruled that an instruction similar to the one the Litts requested had been correctly refused by the trial court because that case was not one involving the apportionment of damages.
The Litts also cited the case of Sweet Milk Co. v. Stanfield, 353 F.2d 811 (9th Cir.1965) as support for their requested instruction. In that case the court ruled that the plaintiff bore the burden of proving the specific damages caused by the second of two successive accidents.
We have been unable to find a case that was submitted to a jury under the indivisible injury rule in which the successive accidents were as distant in time as the accidents involved here. See Annot., Apportionment of Damages Involving Successive Impacts by Different Motor Vehicles, 100 A.L.R.2d 16 (1965). Indeed, Potts's counsel conceded at oral argument that he was unaware of any such cases. We conclude, therefore, that it was error to instruct the jury on the indivisible injury rule and to refuse the Litts' requested instruction.
Having determined that the jury was improperly instructed, we need not address the other issue raised by the Litts.
Reversed and remanded.
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