Tingey v. Christensen
Annotate this Casepublication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Bonnie K. Tingey,
Plaintiff and Petitioner,
v.
Lu Ann Christensen and
Barr Christensen,
Defendants and Respondents.
No. 980149
F I L E D
July 16, 1999
1999 UT 68
---
Third District, Salt Lake
Dep't
The Honorable Frank G. Noel
Attorneys:
Peter C. Collins, Salt Lake
City, for petitioner
J. Kent Holland, Salt Lake
City, for respondent
---
On Certiorari to the Utah Court of Appeals
STEWART, Justice:
¶1
In this case, we review
a memorandum decision of the Utah Court of Appeals affirming the trial
court's denial of plaintiff Bonnie K. Tingey's motion for a new trial.
We affirm.
I. FACTS
¶2
On December 30, 1993, Tingey
and Lu Ann Christensen were in a chain reaction car accident on 900 East
in Salt Lake City. The Suburban Christensen drove hit a Subaru wagon stopped
4-10 feet behind Tingey's sedan and forced that wagon into the rear of
Tingey's sedan. Evidence at trial established that Tingey's sedan had energy-absorbing
bumpers and that the second crash was directly bumper-to-bumper, occurred
at 5 to 14 miles per hour, and deployed the Subaru wagon's airbag. The
wagon was damaged and its driver injured. Tingey's sedan was not visibly
damaged; however, in Tingey's words, she "hurt almost everywhere on [her]
body immediately following the accident." An ambulance took her to the
LDS Hospital emergency room, where she was treated for neck and back pain
and released shortly thereafter.
¶3
Tingey was already in great
pain before the 1993 accident. She had previously been injured in several
accidents: a February 1989 accident left short-lived injuries, and an October
1990 accident caused severe neck and shoulder pain, as well as headaches.
She was also injured in two falls: one in 1991 and a second in 1992. Twenty-five
days before the 1993 accident, at the University of Utah Hospital Pain
Clinic, she indicated pain in her head, neck, shoulders, upper and lower
back, arm, hands, and thigh. Tingey described her pain then as splitting,
agonizing, pounding, torturing, constant, killing, and excruciating.
¶4
Tingey's pain continued
and, according to her testimony, intensified after the 1993 accident. She
sued LuAnn and her father, Barr Christensen, claiming the accident caused
injuries and aggravated preexisting injuries. The parties stipulated that
Tingey received reasonable and necessary medical expenses of $33,669.34
after the accident, although they did not stipulate that such costs arose
as a result of the accident.(1) At trial,
the Christensens conceded that Lu Ann negligently caused the accident and
that her father Barr was jointly and severally liable under Utah Code Ann.
§ 53-3-212 (1998) because he knowingly allowed Lu Ann, a minor, to
drive his vehicle. Thus, the only issue for the jury was the amount of
damages.
¶5
The jury returned a verdict
of $1,459.92 in special damages, an amount equal to Tingey's emergency
room expenses on December 30. The jury initially awarded nothing for Tingey's
pain and suffering in general damages; however, because it had awarded
special damages, the trial judge instructed it to deliberate again and
make some award for pain and suffering. The jury redeliberated and awarded
only $1 in general damages. Because defendants in auto accidents are only
liable for a plaintiff's personal injuries in excess of $3,000, see
Utah Code Ann. § 31A-22-309, and because the verdict was less than
that amount, the trial court entered judgment for the Christensens.
¶6
Tingey moved for a new trial
on damages based on Utah R. Civ. P. 59(a)(5), (6), and (7). Respectively,
these subsections permit a judge to grant a new trial if: a jury, under
the influence of passion or prejudice, awards excessive or inadequate damages;
the evidence is insufficient to justify the verdict or is against law;
or there was an error in law. See id. Tingey's motion was
denied, and she appealed. This Court transferred her appeal to the Utah
Court of Appeals, which affirmed. Tingey filed a petition for a writ of
certiorari, and we granted it. Before this Court, Tingey argues that (1)
she should have been granted a new trial because the jury verdict was based
on insufficient evidence, and (2) the trial court erred in refusing to
give her proposed jury instruction regarding damages in aggravation of
preexisting condition cases.(2)
II. SUFFICIENCY OF THE EVIDENCE
¶7
Tingey's first argument
is that the Court of Appeals erred when it affirmed the trial court's denial
of her motion for a new trial under Utah R. Civ. P. 59(a)(6), which gives
the trial court discretion to grant a new trial if evidence is insufficient
to justify the verdict. See Utah R. Civ. P. 59(a)(6). This Court
will reverse a trial court's denial of a motion for a new trial under rule
59(a)(6) only if it concludes that the evidence, when viewed most favorably
for the prevailing party, is insufficient to support the verdict. The appealing
party has the heavy burden of marshaling the evidence in support of the
verdict and showing that the evidence, viewed in the light most favorable
to the verdict, is insufficient. See Scudder v. Kennecott Copper
Corp., 886 P.2d 48, 52 (Utah 1994); Heslop v. Bank of Utah,
839 P.2d 828, 839 (Utah 1992); Crookston v. Fire Ins. Exch., 817 P.2d 789, 799-800 (Utah 1991); Hansen v. Stewart, 761 P.2d 14, 17-18
(Utah 1988).
¶8
Tingey argues that her evidence
proved that the 1993 accident: (1) aggravated preexisting neck, shoulder,
back, and head pain; and (2) caused temporomandibular joint ("TMJ") injuries.
The $1,459.92 verdict, she claims, does not properly reflect the damages
from these injuries. She has marshaled the evidence in favor of the verdict
and has attempted to show its insufficiency.
¶9
After examining the record
and counsels' arguments, we believe that the evidence was sufficient to
support the verdict. As the Court of Appeals correctly stated:
In this case, the
record contains evidence that the 1993 collision is not the sole or aggravating
factor which caused Tingey's [injuries]. The evidence showed that the impact
of the collision was estimated at 5-10 miles an hour, which was of such
low impact that it caused no visible damage to Tingey's vehicle. Tingey
had been involved in two accidents prior to the 1993 collision and had
a history of chronic pain. In addition, expert testimony established that
Tingey's TMJ could have been caused by several factors including the earlier
accidents, long term stress, and daily activities such as chewing, yawning,
and grinding her teeth. Based on this evidence, the jury's verdict was
reasonable.
III. PROPOSED JURY INSTRUCTION
¶10
Tingey also contends that
the trial court's refusal to give her proposed jury instruction on aggravation
of preexisting conditions was reversible error. She states that her witnesses
testified that her current pain was incapable of apportionment between
preexisting conditions and injuries from the 1993 accident. She argues
that, in light of the evidence, she was entitled to an instruction that
a defendant is liable for the entire amount of a plaintiff's injuries when
those injuries are incapable of apportionment. The trial court refused
to give Tingey's proposed instruction to this effect. We accord a trial
court's legal rulings, including a refusal to give a jury instruction,
no deference and review for correctness. See Ong Int'l (U.S.A.)
Inc. v. 11th Ave. Corp., 850 P.2d 447, 452 (Utah 1993).
¶11
Tingey's proposed jury instruction
states:
When a pre-existing
condition exists which makes the injurious effect of a collision greater
than it would have been in the absence of such a pre-existing condition,
it is your duty, if possible, to apportion the amount of disability and
impairment, pain and suffering, and other damages, between those attributable
to the pre-existing condition and those attributable to the collision.
But if you find that the evidence does not permit such an apportionment,
then you must determine that the entire disability, pain and suffering,
and other damages, are attributable to the collision.(3)
(Emphasis added.) This instruction
is based on Colorado Jury Instructions § 6:8 (1969). The emphasized
portion of this instruction is the subject of Tingey's appeal.
¶12
The instruction actually
given was Model Utah Jury Instruction, Civil 27.6 (1993), which does not
mention the emphasized portion quoted above:
A person who has
a pre-existing condition at the time of a collision is, of course, not
entitled to recover special or general damages for that condition itself.
However, the injured person is entitled to recover special and general
damages for any aggravation of any such pre-existing condition proximately
resulting from the collision.
This is true even if the injured person's condition made the injured person more susceptible to the possibility of ill-effects than a normally healthy person would have been, and even if a normally healthy person probably would not have suffered any substantial injury from the collision.
When a pre-existing condition
is aggravated, damages for the aggravated condition are appropriately awarded
only for the new or additional damages that are caused by the aggravation.
¶13
The proposition on which
Tingey's proposed instruction rests heretofore has not been explicitly
recognized in Utah case law. However, a number of other jurisdictions have
recognized this rule. See e.g., Newberry v. Vogel, 379 P.2d 811, 813 (Colo. 1963); Hamblen v. Owens, 172 So. 694, 696 (Fla.
1937); Kawamoto v. Yasutake, 410 P.2d 976, 981 (Haw. 1966); Bushong
v. Kamiah Grain, Inc., 534 P.2d 1099, 1101 (Idaho 1975) (citing Blaine
v. Byers, 429 P.2d 397, 405-06 (Idaho 1967)); Lovely v. Allstate
Ins. Co., 658 A.2d 1091, 1092-93 (Me. 1995); McNabb v. Green Real
Estate Co., 233 N.W.2d 811, 818 (Mich. 1975); Bigley v. Craven,
769 P.2d 892, 898 (Wyo. 1989); see also Tolan v. ERA Helicopters,
Inc., 699 P.2d 1265, 1272 (Alaska 1985) (citing LaMoureaux v. Totem
Ocean Trailer Express, Inc., 632 P.2d 539, 543-45 (Alaska 1981)).
¶14
The proposition follows
from several legal principles: first, a tortfeasor takes a tort victim
as he or she finds the victim, see Brunson v. Strong, 17
Utah 2d 364, 412 P.2d 451, 453 (1966); second, a tortfeasor should bear
the burden of uncertainty in the amount of a tort victim's damages, see
Atkin Wright & Miles v. Mountain States Tel. & Tel. Co.,
709 P.2d 330, 336 (Utah 1985);(4) and third,
once the fact of damage is established, "a defendant should not escape
liability because the amount of damage cannot be proved with precision."
Winsness v. M.J. Conoco Distrib., Inc., 593 P.2d 1303, 1306 (Utah
1979).
¶15
The proposed rule of law
is correct, and we adopt it. We hold that if the jury can find a reasonable
basis for apportioning damages between a preexisting condition and a subsequent
tort, it should do so; however, if the jury finds it impossible to apportion
damages, it should find that the tortfeasor is liable for the entire amount
of damages. The trial court erred in not giving the proposed instruction,
and the Court of Appeals was incorrect in holding otherwise.
¶16
Nevertheless, the error
was harmless. Errors require reversal only if confidence in the jury's
verdict is undermined. See Harline v. Barker, 912 P.2d 433,
442 (Utah 1996). "We may reverse a trial court judgment only if there is
a reasonable likelihood that, absent the error, there would have been a
result more favorable to the complaining party." In re Estate of Kesler,
702 P.2d 86, 96 (Utah 1985); see Lee v. Mitchell Funeral Home
Ambulance Serv., 606 P.2d 259, 260-61 (Utah 1980). A court's error
in refusing to give a jury instruction is reversible "only if it tends
to mislead the jury to the prejudice of the complaining party or insufficiently
or erroneously advises the jury on the law." Kesler, 702 P.2d at
96-97.
¶17
Despite the trial court's
error, our confidence in the jury's verdict in this case is not undermined.
Under the rule of law adopted today, the jury can award a plaintiff full,
unapportioned damages only if it determines that damages are incapable
of apportionment. However, in this case, the jury made clear that it did
not believe Tingey suffered any pain and suffering from the 1993 accident.
This is shown by its initial award of $0 in general damages and its subsequent
award of only $1 in general damages after being specifically instructed
to award something for Tingey's pain and suffering from the 1993 accident.
Thus, after hearing substantial evidence on Tingey's injuries and discussing
twice whether her pain and suffering arose from the 1993 accident or her
previous injuries, the jury awarded Tingey only nominal damages for pain
and suffering from the 1993 accident. This is not an unusual award, especially
in rear-end auto accidents with conflicting evidence on damages. See
22 Am. Jur. 2d Damages § 42 (1988).
¶18
As mentioned above, this
verdict is consistent with the evidence. Tingey had been severely injured
in a previous accident and was in considerable pain prior to the 1993 accident:
twenty-five days before the accident, she described her pain as splitting,
agonizing, pounding, torturing, constant, killing, and excruciating. Further,
the evidence shows that the 1993 accident was minor: the speed of the car
that hit Tingey's car was estimated to be from 5-14 miles per hour; the
impact was direct, bumper-to- bumper, and Tingey's energy-absorbing bumpers
buffered some of the impact; and the impact was so minor that Tingey's
car was not visibly damaged. In light of the minor nature of the 1993 accident,
the jury reasonably determined that Tingey's pain and suffering was entirely
preexisting and did not stem at all from the 1993 accident.
¶19
Tingey argues that if her
instruction had been given, the jury would have found that the damages
were incapable of apportionment and would have awarded her the unapportioned
sum of her current and preexisting listing damages. We think that conclusion
is unsupportable. The jury clearly believed Tingey suffered no pain and
suffering from the 1993 accident. That determination is supported by the
evidence and its finding of no damages for pain and suffering. We simply
cannot say that the verdict would have been more favorable to Tingey had
her proposed instruction been given. The trial court's error in refusing
to give the instruction does not undermine our confidence in the verdict.
Thus, the error is harmless.
¶20
Affirmed.
---
¶21
Chief Justice Howe and Justice
Zimmerman concur in Justice Stewart's opinion.
¶22
Justice Russon concurs in
the result.
¶23
Having disqualified herself,
Associate Chief Justice Durham does not participate herein.
1. Before the case went to trial, the Christensens made a formal offer in judgment under Utah R. Civ. P. 68(b) to Tingey for $35,000. Tingey refused the offer, but mentioned the $35,000 settlement offer in her motion for new trial and on appeal before this Court. The settlement offer is irrelevant to the issues Tingey raises on appeal, and mentioning it is inappropriate. "An offer [of judgment made before trial that is] not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs." Utah R. Civ. P. 68(b).
2. Tingey does not argue here, as she did at the trial court and the Court of Appeals, that under Utah R. Civ. P. 59(a)(5) the damages awarded her were inadequate because of the jury's passion or prejudice.
3. Compare Tingey's proposed instruction with the Christensens' proposed instruction: AGGRAVATION OF PRE-EXISTING CONDITION
If you find that before the accident Plaintiff, Bonnie Tingey, had an ailment or disability, and because of the accident his [sic] ailment or disability was aggravated, the plaintiff is entitled to recover for any disability or pain caused by such aggravation; but she is not entitled to recover for any ailment or disability which may have existed before the accident, or for any ailments or disabilities from which plaintiff may now be suffering which were not caused or contributed to by the accident.
Where a pre-existing condition exists which has been aggravated by the accident it is your duty, if possible, to apportion the amount of disability and pain between that caused by the pre-existing condition and that caused by the accident. But if you find that the evidence does not permit such an apportionment, then the defendant is legally responsible for the entire ailment or disability. (Emphasis added.) This instruction is based on Colorado Jury Instructions § 6:8 (2d ed. 1980).
4. Other states have relied upon these two policies to adopt the rule of law proposed in Tingey's instruction. See Lovely, 658 A.2d at 1093; McNabb, 233 N.W.2d at 820; see also Bigley, 769 P.2d at 896.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.