Citation. Bruckman v. Pena, 29 Colo. App. 357, 487 P.2d 566, 1971)
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Brief Fact Summary.
The Plaintiff, Mr. Pena (Plaintiff), was injured in a car collision, aggravating injuries caused in an earlier collision with the Defendant, Mr. Bruckman (Defendant). The trial court instructed the jury that Defendant would be liable for all damages if the jury was unable to apportion the injuries between the two collisions. Defendant seeks a reversal based on the instruction.
Synopsis of Rule of Law.
The plaintiff retains the burden of proof when claiming that a second accident aggravated previous injuries sustained in an original accident.
Facts.
On July 21, 1964 the Plaintiff was injured when the car he was riding in collided with a truck driven by the Defendant. On June 11, 1965 Plaintiff was injured in a second collision, aggravating injuries sustained in the first collision. The only Defendants named in this suit were the driver and owner of the truck involved in the first collision. The jury returned a verdict in favor of Plaintiff. The Defendant seeks a reversal claiming error on one of the jury instructions.
Issue.
Did the trial court err by instructing the jury that the defendant is liable for the entire disability if the jury is unable to apportion the injuries between the two collisions?
Held.
Yes. Judgment reversed and remanded.
* The trial court instructed the jury that it is their duty to apportion the injuries aggravated by the second collision from those caused by the second collision. Additionally, the court instructed that if apportionment was not possible, the Defendants are liable for the entire disability. While the first instruction is a correct statement of law, the second is not.
* The burden of proof is on the Plaintiff to establish that damages were proximately caused by the negligence of the Defendant. The court’s instruction would place the burden on the defense to prove that damages could be apportioned. This is an incorrect application of the law.
Discussion.
The Defendant is still liable for aggravation of injuries caused in the first collision, in addition to those original injuries.
