 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Rowe v. Munye8/18/2005
1992); David v. DeLeon, 547 N.W.2d 726, 730 (Neb. 1996); Kleitz v. Raskin, 738 P.2d 508, 509 (Nev. 1987); Pang v. Minch, 559 N.E.2d 1313, 1324-25 (Ohio 1990) (relying on Restatement (Second) of Torts ยง 433B cmt. d); Haws v. Bullock, 592 S.W.2d 588, 591 (Tenn. Ct. App. 1979); Tingey v. Christensen, 987 P.2d 588, 592 (Utah 1999); Phennah v. Whalen, 621 P.2d 1304, 1309 (Wash. Ct. App. 1980); Bigley v. Craven, 769 P.2d 892, 898 (Wyo. 1989). Only two states considering the issue of indivisible injury have rejected this approach. See Foggia v. Des Moines Bowl-O-Mat, Inc., 543 N.W.2d 889, 893-94 (Iowa 1996); Mayer v. N. Arundel Hosp. Ass'n, Inc., 802 A.2d 483, 494 (Md. Ct. Spec. App. 2002). Two states have determined that if the jury is unable to apportion, then the damages are divided equally among the various causes. Montalvo v. Lapez, 884 P.2d 345, 357-58 (Haw. 1994); Card v. State, 747 A.2d 32 (Conn. 2000). By adopting the majority's holding, Minnesota chooses a path rejected by every court but Iowa and Maryland.
In each of the states placing the burden on the defendant, the court recognized the importance of holding the tortfeasor responsible only for the aggravation of a pre-existing injury , but recognized that when apportionment is impossible, the tortfeasor should bear the burden of uncertainty in the determination of damages. See, e.g., Tingey, 987 P.2d at 592. This proposition follows from several legal principles: a tortfeasor takes an accident victim as he or she finds them; a tortfeasor bears the burden of unpredictability in the extent of the damage to a victim; and a tortfeasor should not escape liability for damage caused by the tortfeasor because the damages cannot be proved with precision. Id.
CIVJIG 91.40 follows the reasoning laid out in The Law of Torts and case law from the various jurisdictions cited above. It does not place the burden of apportionment on the defendant in all situations. The plaintiff still has the burden of showing that the accident caused an aggravation of a pre-existing condition, thus furthering the policy of placing the burden on the party with the greater amount of information. CIVJIG 91.40 clearly states that the defendant is "liable only for any damages that you [the jury] find to be directly caused by the accident." This directly addresses the majority's concern for not overcompensating the plaintiff. The tortfeasor is only held liable for the entire injury in the rare case where the jury, upon all the evidence produced by both plaintiff and defendant, is unable to separate the harm caused by the tortfeasor from the plaintiff's pre-existing injury. This part of the instruction emphasizes the importance of protecting the innocent victim over the wrongdoer. Thus, CIVJIG 91.40 encourages holding the defendant liable only for the damages he or she caused, but also recognizes the need to balance this policy with that of protecting the innocent plaintiff, rather than disregarding one or the other.
For the reasons stated, I would adopt the following holding:
Where a pre-existing disease or condition exists, and where a tortfeasor causes aggravation of the condition and disability and pain results, and no apportionment of the damage between that caused by the pre-existing condition and that caused by the tortfeasor can be made, the tortfeasor is responsible for the entire damage.
I would reverse the court of appeals and uphold the award of damages to the plaintiff.
PAGE, Justice (dissenting).
I join in the dissent of Justice Meyer.
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Minnesota Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|