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Fritsche v. Westinghouse Electric Corp.

Decided: February 16, 1970.


For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Proctor, J.


[55 NJ Page 323] On August 29, 1965, the plaintiff, Lila A. Fritsche, was a passenger in an automobile operated by her husband, Allen J. Fritsche. While stopped for a traffic light in North Plainfield, the vehicle was struck from the rear by an automobile owned by the defendant, Westinghouse Electric Corporation, and driven by its agent, the defendant, Jacob Benedetto. As a result of the impact, Mrs. Fritsche was injured. In the ensuing litigation, a jury awarded her $80,000 for her injuries and her husband $10,000 on his per quod claim. Defendants moved for a new trial contending that there were trial errors and that the verdict was excessive. The trial judge denied the motion. On appeal, the

Appellate Division, in an unreported opinion, found no merit to any of defendants' claims of trial error. It concluded, however, that the jury's verdict was excessive and "manifestly was the result of mistake, partiality, prejudice, or passion." Accordingly, it remanded the case for retrial on the issue of damages only. We granted plaintiffs' petition for certification. 54 N.J. 560 (1969).

At the trial the issue of liability was not seriously contested and the jury's finding on this point is fully supported by the record. The case was tried primarily on the issue of whether plaintiff's condition was proximately caused by the accident or was instead the result of preexisting spinal arthritis. As a result, the question of the state of her present and probable future condition, upon which the issue of damages is predicated, intertwines with the question of whether her condition was proximately caused by the accident. Under the Appellate Division's mandate for remand on the issue of damages, it is likely that a trial judge would have compelled the plaintiffs to relitigate the question of whether Mrs. Fritsche's condition was the proximate result of defendants' negligence. A retrial on this issue would work on unjust result on the plaintiffs because it virtually would force them to relitigate the entire case. Yet the jury's conclusion that plaintiff's condition was caused by the accident was fully warranted by the expert medical testimony introduced at trial. Indeed, the defendants did not appeal this finding as against the weight of the evidence nor do they question it here. Thus, if there is to be a retrial, which we must determine from a review of the record, the retrial should be concerned solely with an evaluation of Mrs. Fritsche's condition based on the premise that that condition was proximately caused by defendants' negligence.

Prior to the accident, Mrs. Fritsche, a mother of four children in her mid-thirties, was very active and in good health. She had never experienced any difficulties with her neck or back. Her problems began after the rear-end collision which is the subject of this suit.

When the Fritsche car was struck in the rear, Mrs. Fritsche was sitting in the right front seat. The jolt caused her to first strike her head on the post separating the doors and then on the front window. The impact was not severe; property damage was stipulated to be $52.50 and neither her husband, who was driving, nor her children in the back seat were injured. Mrs. Fritsche, however, experienced a severe headache almost immediately and was too ill to join her family for dinner that evening. In the following days she continued to have headaches and started getting nosebleeds. Because she had had some headaches in the past from eyestrain and because the family had just moved from Illinois and did not yet have a family physician, Mrs. Fritsche did not consult any doctors for some time. The headaches continued and grew more severe, however, and after a few weeks she consulted a Dr. Cooley. He apparently did not afford her much relief.

Her condition worsened and on November 15 she came under the care of Dr. Harold Wender, an orthopedic specialist. Dr. Wender diagnosed her condition as "acute cervical, lumbar and dorsal strain," and found that she had limitation of motion and pain in her muscles from her neck to her pelvis. He took X-rays which showed "a straightening of the so-called normal cervical lordotic curve" -- a straightening of the normal spinal curve -- caused by muscle spasms. Dr. Wender treated her for almost a year trying numerous techniques to alleviate her pain and symptoms. He prescribed out-patient therapy at the Somerset Hospital which included traction to reduce the muscle spasms. He also prescribed various medications including muscle relaxants, pain pills, and injections into her skull. In April, 1966, the doctor ordered her to wear a backbrace. As of this time he had noticed no improvement in her condition, and she continued to complain of pain in her left shoulder and neck area. In August of 1966 her condition further deteriorated. She developed a "shaking type of problem in which her hands shook and her neck -- her head was relatively unstable on her

neck, and she presented neurological signs of past-pointing," i.e., she was unable to touch her nose when instructed to do so. These symptoms persisted into September.

It was undisputed that during this time Mrs. Fritsche, who was an avid bowler, bowled on several league teams. Her doctors testified that there was nothing inconsistent with her bowling and the nature of her injuries. None of the defendants' doctors testified on the effect of her bowling.

In September of 1966 she fell while bowling and injured her left knee. The next morning she was admitted to the Somerset Hospital under the care of Dr. Wender. Because of certain neurological symptoms and her previous difficulties with her neck and back, several consulting physicians were called in, including Dr. Arthur W. Culberson, a specialist in neurosurgery. Dr. Culberson performed several tests including a myelogram. This test permits a physician to obtain X-rays of the inside of the spinal column. It is performed by injecting oil into the subject's spine, and then taking X-rays of the spine while a table, upon which the subject's body is strapped, is tilted in various directions. The oil does not mix with the spinal fluid, and its flow through the spinal column defines any areas of mass pushing into the spinal canal. The myelogram disclosed some type of obstruction in the spinal canal in the area of the neck.

As a result of his findings, Dr. Culberson performed a cervical laminectomy. This operation required the doctor to cut approximately three to four inches into Mrs. Fritsche's neck and to expose her spine. He then removed the bone to expose the cord of nerves which runs through the spine and which carries the impulses to the various parts of the body. At the expected place, the doctor found a ridge of bone three quarters of an inch long and a quarter of an inch wide which was pressing on and irritating the nerves. It was his opinion that this spur had compressed the spinal cord and ...

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