On appeal from Superior Court, Law Division, Mercer County.
Antell, Long and Baime. The opinion of the court was delivered by Antell, P.J.A.D.
The question presented on this appeal is whether it is the plaintiff or the defendants, in a suit alleging personal injury and aggravation thereof as the result of successive accidents, who must bear the burden of proving how plaintiff's damages should be allocated among the defendants.
Plaintiff injured her neck, lower and middle back, left shoulder, right ribs and left upper chest when she fell on the property of defendant Fairlawn Garden Associates, Inc. (hereinafter "Fairlawn"), on January 24, 1987. On June 30, 1987, her automobile was struck in the rear by defendant Mark A. Renelt, who was driving a state-owned vehicle. That accident injured her legs, neck, lower back, left arm and shoulder. She also experienced abdominal pain, dizziness, drainage from the right ear and ringing in her ears. A CAT Scan indicated the presence of a bulging disc in her lumbar spine. On June 18, 1988, she suffered a third accident in Pennsylvania when another vehicle struck the rear of a car in which she was a passenger, hurting her left knee, lower back, left arm and neck. Her complaints included soft tissue injury, a bulging lumbar disc, post-traumatic osteoarthritis and chronic pain.
Separate suits were commenced against Fairlawn and Renelt/State of New Jersey for negligence, and these were consolidated for trial on the issue of damages. We are not told what action was taken with respect to the third accident. The parties stipulated to the defendants' liability and also to plaintiff's comparative negligence of 7.5%. During the trial, the jury heard several expert witnesses testify to plaintiff's injuries, their permanency, and their allocability amongst the tortfeasors. Prior to the jury charge, however, defendants Mark Renelt and the State of New Jersey settled with plaintiff and were dismissed as parties to the action.
After being instructed by the court that the burden of proving allocation of damages rested on the defendants, the jury returned an award in favor of plaintiff against Fairlawn in the amount of $112,091.67. It also awarded $53,776.64 against Renelt and the State of New Jersey. An additional non-apportioned $18,499.16 was also awarded. The trial court ordered Fairlawn to pay the full unapportioned amount awarded for pain and suffering and 50% of the remaining unapportioned award. With allowance of interest and a reduction for plaintiff's stipulated comparative negligence, the total judgment entered against Fairlawn is in the amount of $134,222.44.
Relying upon Tisdale v. Fields, 183 N.J. Super. 8, 443 A.2d 211 (App.Div.1982), Fairlawn argues on appeal that the trial court erred in instructing the jury that the burden of proving allocation of damages shifted to the defendants. In Tisdale, plaintiff, who had had "several prior accidents," id., at 10, 443 A.2d 211, sued defendant, who was the last of successive tortfeasors, for the aggravation of her pre-existing injuries. Asserting that the damage award was inadequate, she appealed on the ground that the trial Judge erred in failing "to require the burden of proof to be shifted to the defendants to apportion plaintiff's injuries based on her pre-existing conditions." Ibid. In that case, which is materially analogous to this, we held that the jury had been correctly instructed not to
award damages solely related to any pre-existing condition, and that plaintiff bore the burden of proof as to how damages should be allocated. Accordingly, we affirmed the judgment presented for review. In our view, that determination governs the case presented, and the trial court herein erred in charging the jury as it did. Our reasons are stated in the following Discussion.
Fosgate was a suit for medical malpractice in which plaintiff contended she had been injured by defendant's failure to recognize that she was suffering from tuberculosis. Despite defendant's "treatments" over a period of six years, the illness was not discovered until plaintiff was taken to a hospital after an accident. By that time it was "far advanced." 66 N.J. at 270, 330 A.2d 355. Her complaint on appeal was that the trial court refused to instruct the jury that defendant was answerable for the full extent of her ultimate disability if they found it resulted from the "concurrent effect of both the plaintiff's prior condition and the defendant's negligence superimposed upon it." Id. at 271, 330 A.2d 355. Instead, the jury was instructed that it could not award damages for any disability attributable to a pre-existing illness or condition. Id. at 272, 330 A.2d 355. The Supreme Court reversed, holding that under the facts presented
the burden of proof should be shifted to the culpable defendant who should be held responsible for all damages unless he can demonstrate that the damages for which he is responsible are capable of some reasonable apportionment and what those damages are. [ Id. at 272-73, 330 A.2d 355]
The parties disagree as to whether that holding is limited to cases where the aggravated injury is caused ...