Aggravation of a Pre-Existing Injury

Anthony Gary Bell, Jr.'s Personal Injury Legal Blogs

Licensed for 42 years

Attorney in Greenwood Village, CO

When evaluating a claim for personal injuries, such as those caused by a car accident, insurance companies often place great weight on whether the injured victim suffered similar injuries in the past.  If so, the insurance company will likely offer a reduced amount to settle any such claim prior to litigation.  Oftentimes, claimants are forced to file a lawsuit in order to obtain fair compensation for their injuries, particularly when prior injuries were substantially “aggravated” or made worse by the subject car crash.  It is critical to be well versed on the state of Colorado law on this matter before filing a lawsuit for injuries and damages where the insurance company is arguing that the claimants damages were actually caused by a pre-existing injury.
The Governing Colorado Jury Instruction
Before filing a lawsuit where there is an issue of a pre-existing injury, a skilled attorney will always consult the Colorado Jury Instructions on the matter.  The relevant Jury Instruction on this Matter is C.J.I. 6.8.  This Instruction allows the Jury to award damages for injuries even if prior to the date of the car crash, he/she suffered similar injuries to the same body part.  Specifically, the instruction asks the Jury to determine:
1. Whether before the date of the accident the Plaintiff suffered from an injury/ailment.
2. Whether the defendant was negligent; and
3. Whether the defendant’s negligence made the Plaintiff’s injury/ailment/condition worse.
If the Jury answers all of the above questions “yes,” then they are then instructed on their duty to calculate the Plaintiff’s damages and distinguish between those damages caused by the pre-existing injury and those caused by the Defendant’s negligence.  This principle is commonly referred to as “apportionment.”  Importantly, the Jury is instructed that if they cannot determine which damages were caused by the preexisting injury or ailment, and which were caused by the Defendant, then “the defendant is legally responsible for the entire amount of damages.”
Cases Discussing the Aggravation and Apportionment Doctrines
The above Colorado Jury Instruction 6.8 is based on and supported by several Colorado Supreme Court and Appellate Court cases.  First, in the case of Hylton v. Wade, the Colorado Supreme Court held that this Jury Instruction is applicable even though the Plaintiff may have previously received a damage recovery for the preexisting condition at issue. 
The above instruction should be given only in situations involving a “pre-existing injury” and not a subsequent event or injury suffered by a Plaintiff.  On this point, the Colorado Court of Appeals, in Smartt v. Lamar Oil Co., held that in such a fact situations, where the Plaintiff suffered a “subsequent injury” that was not the fault of the Defendant, Jury Instruction 6.8 should not be given.
Finally, the Court of Appeals held in Lascano v. Vowell, that if the term “aggravated,” used in the above instruction would be ambiguous when applied to a particular factual situation, then the term should either not be used in the instruction or should be further defined in the Jury Instructions.  
For more information on personal injury litigation and cases involving the aggravation of pre-existing injuries, please contact the experienced attorneys at Bell & Pollock, P.C.
Sources
C.J.I. 6.8
Hylton v. Wade, 29 Colo.App. 98, 478 P.2d 690 (1970).
Lascano v. Vowell, 940 P.2d 977 (Colo. App. 1996).
Smartt v. Lamar Oil Co., 623 P.2d 73 (Colo.App. 1980); 
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