Aggravation

Only seldom do I have a personal injury case where there was not a doctor or chiropractic visit sometime in the months or years prior to the event sparking the lawsuit. An injured plaintiff can only recover for damages that were actually caused by the defendant’s negligence. If the defendant can prove that a plaintiff’s injuries pre-existed his negligence, it lowers the amount of damages that he has to pay if the jury finds him at fault. In extreme cases, the jury can find the defendant was negligent, but caused nominal damages such as $1. The best argument by a plaintiff is that the new injury is not connected in any way with a prior injury or condition. Even if the injury is in the same location or the same condition, the law allows a plaintiff to recover for the aggravation or the exacerbation of the pre-existing injury. So if you had a small hernia, one that did not require surgery, just monitoring by a doctor, but after the defendant hit you with his car, the hernia gets larger and requires surgery, the jury can award an amount of damages based on how much it got worse.

I recently had this issue in a trial, and the typical, pattern jury instructions from North Carolina did not seem to address this issue. I did my research and drafted some additions to the appropriate pattern instructions. A copy of those is set forth below.

Proximate Cause – Definition; Multiple Causes

The plaintiff not only has the burden of proving negligence, but also that such negligence was a proximate cause  of the [injury] [damage].

Proximate cause is a cause which in a natural and continuous sequence produces a person's [injury] [damage], and is a cause which a reasonable and prudent person could have foreseen would probably produce such [injury] [damage] or some similar injurious result.

An injured person is entitled to recover all damages proximately caused by the defendant's negligence. When his injuries are aggravated or activated by a pre-existing physical or mental condition, defendant is liable to the extent that his wrongful act proximately and naturally aggravated or activated plaintiff's condition. Potts v. Howser, 274 N.C. 49, 54, 161 S.E.2d 737, 742 (1968).

There may be more than one proximate cause of [an injury] [damage]. Therefore, the plaintiff need not prove that the defendant's negligence was the sole proximate cause of the [injury] [damage]. The plaintiff must prove, by the greater weight of the evidence, only that the defendant's negligence was a proximate cause.

Proximate Cause – Peculiar Susceptibility

In deciding whether the [injury to the plaintiff] [death of the decedent] was a reasonably foreseeable consequence of the defendant's negligence, you must determine whether such negligent conduct, under the same or similar circumstances, could reasonably have been expected to [injure] [cause the death of] a person of ordinary [physical] [mental] condition. If so, the harmful consequences resulting from the defendant's negligence such as the aggravation of a pre-existing condition (Smith v. Buckhram, 372 S.E.2d 90, 94 (1988;  Potts v. Howser, 274 N.C. 49, 54, 161 S.E.2d 737, 742 (1968) would be reasonably foreseeable and, therefore, would be a proximate cause of the [plaintiff's injury] [decedent's death]. If not, the harmful consequences resulting from the defendant's negligence would not be reasonably foreseeable and, therefore, would not be a proximate cause of the [plaintiff's injury] [decedent's death].

-Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation.  Please contact him at (910) 772-1678.