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Reichert v. Vegholm

January 30, 2004


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3964-00.

Before Judges Stern, Lefelt and Payne.

The opinion of the court was delivered by: Lefelt, J.A.D.

Argued December 2, 2003

Plaintiff Lois Reichert fell while going to her dentist, defendant Arthur Gates, and injured her arms, neck, and knee. Approximately 24 days later, Reichert claims to have injured the same parts of her body in an automobile collision with a car driven by defendant Josefina Vegholm and owned by defendant Russell Van Kampen. Reichert sued the three defendants, settled with Gates, and proceeded to a damages-only trial against the automobile defendants, Vegholm and Van Kampen. The jury found no cause of action based upon its finding that Reichert did not sustain either an injury or an aggravation of any injury as a proximate cause of the automobile accident.

Reichert appealed, contending that the trial court erroneously instructed the jury that plaintiff, and not defendants, bore the burden of apportioning damages between Reichert's fall and the automobile accident. Because this automobile accident case involves a simple aggravation of a pre-existing injury, the judge's charge properly placed the burden of apportioning damages on plaintiff, and we affirm.


For purposes of this opinion, we accept Reichert's contentions and assume that she suffered injuries to the same parts of her body from the fall and the automobile collision, less than one month later. With this factual assumption, we need not describe the evidence that was presented at trial and add only the following brief procedural history.

At the trial, after Reichert's medical expert claimed to be unable to apportion plaintiff's damages between the fall and collision, Reichert argued in response to defendant's motion to dismiss plaintiff's complaint, which was made at the end of testimony, that the Model Jury Charge (Civil), § 6.11(G) (Jan. 1997), for aggravation of pre-existing injuries, which she had previously requested, should not be given. The judge nevertheless instructed the jury in accordance with the Model Charge and told the jury that plaintiff could recover for the aggravation or worsening of her injuries,"but only to the extent of that aggravation." The judge then informed the jury that plaintiff had the burden of proving what portion of her condition was due to her fall and what portion was attributable to the automobile collision. According to the instruction, Reichert would be entitled to damages against the automobile defendants only for those injuries attributable to the automobile collision, either because the collision aggravated injuries suffered in the fall or resulted in separate identifiable injuries.

On appeal, Reichert argues the charge, placing the damage apportionment burden on plaintiff, erroneously caused the jury to decide against her. Accordingly, Reichert requests that we reverse the jury's verdict of no cause of action and remand for a new trial at which the jury would be instructed that defendants bear the burden of apportioning plaintiff's damages between the fall and collision.


We start our analysis with the well-recognized principle that to prevail against a negligent defendant, plaintiff must prove not only that defendant was negligent but also that defendant's negligence was a proximate cause of the injuries and damages suffered. E.g., Paxton v. Misiuk, 34 N.J. 453, 463 (1961). A defendant should generally be responsible only for"the value of the interest he [or she] destroyed." Scafidi v. Seiler, 119 N.J. 93, 112 (1990). Apportionment of damages has long been favored by our courts. Poliseno v. Gen. Motors Corp., 328 N.J. Super. 41, 55 (App. Div.), certif. denied, 165 N.J. 138 (2000).

While we recognize the importance of apportioning damages, it has not been easy to determine whether plaintiff or defendant should bear the burden of damage apportionment in specific cases. Placement of this burden can be determinative of whether an injured plaintiff is compensated."[W]hen the burden is on plaintiff to apportion damages between particular defendants and prior or subsequent injuries or conditions, the result of failure to carry the burden may be dismissal of plaintiff's case." O'Brien (Newark) Cogeneration, Inc. v. Automatic Sprinkler Corp. of America, 361 N.J. Super. 264, 275 (App. Div. 2003). Nevertheless, the general rule is that"the burden of proof that the tortious conduct of the defendant has caused the harm to the plaintiff is upon the plaintiff." Restatement (Second) of Torts, § 433B(1) (1965).

The general rule does not change when plaintiff's injuries or conditions are aggravated by a subsequent accident."In the normal prior or post-personal injury aggravation claim, the party in the best position to present evidence of non aggravation or exacerbation is plaintiff." O'Brien, supra, 361 N.J. Super. at 274. In such a case, it is plaintiff who would best understand how a defendant's tort has affected or is related to prior or subsequent injuries or conditions. That is why when a plaintiff claims that an accident aggravated a prior injury or condition, it is plaintiff who"must prove what damages a particular defendant caused." Id. at 275.

To prevail in the ordinary aggravation of injury case, therefore, plaintiffs must separate those damages caused by a particular defendant's negligence from any prior or post injuries or conditions. E.g., Blanks v. Murphy, 268 N.J. Super. 152, 162 (App. Div. 1993) (plaintiff suffered injuries before and after auto accident for which suit was brought); Goodman v. Fairlawn Garden Assocs., Inc., 253 N.J. Super. 299, 302 (App. Div.), (plaintiff injured in fall and auto accident), certif. denied, 130 N.J. 7 ...

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