You Take Them as You Find Them

John Inserra

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The case of Castillo v Young handed down today by the Nebraska Supreme Court answers the question regarding the propriety of instructing a jury regarding a prexisting condition. The court decided that it is proper for a trial court to instruct a jury that you take the plaintiff as you find them.

The requested instruction was:

The instruction requested by Castillo stated:
There is evidence that the Plaintiff had a broken jaw 20 years before the accident on December 20, 2000. The Defendant(s) is (are) liable only for any damages that you find [were] proximately caused by the accident on December 20, 2000.
If you cannot separate damages caused by the pre [sic] existing broken jaw from those caused by the accident of December 20, 2000, then the Defendant(s) is (are) liable for all of those damages.
The defendant's [sic] may be liable for bodily harm to Nancy Castillo even though the injury is greater than usual due to the physical condition which predisposed Nancy Castillo to the injury. In short, the defendant's [sic] take the plaintiff as they find her.

The instruction the court gave was:

Instruction No. 13, as given by the court, stated:

There is evidence that the Plaintiff had broken her jaw in 1983 and experienced a dis[k] displacement in her jaw prior to the December 20, 2000, accident.
The Defendant(s) is liable only for any damages that you find to be proximately caused by the Defendants' negligence relating to the December 20, 2000, accident.
If you cannot separate damages caused by the pre [sic] existing broken jaw from those caused by the accident of December 20, 2000, then the Defendant(s) are liable for all of those damages.

The Supreme Court held:

This court has often noted that to establish reversible error from a court's failure to give a requested jury instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction was warranted by the evidence, and (3) the appellant was prejudiced by the court's failure to give the requested instruction. Id. Whether a jury instruction given by a trial court is correct is a question of law. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. Id.

In Ketteler v. Daniel, 251 Neb. 287, 298, 556 N.W.2d 623, 630 (1996), when this court concluded that an instruction requested by the plaintiff should have been given, the court stated:

First, the proffered instruction correctly stated the law. Second, the instruction was warranted by the evidence offered by [the defendant's expert witness], who testified that [the plaintiff] suffered from fibromyalgia prior to the accident, and by [the plaintiff's family physician], who testified by deposition that [the plaintiff] had suffered from back and neck conditions prior to the accident which were aggravated by the accident. Finally, refusal by the trial court to submit the entire proposed instruction was prejudicial to [the plaintiff].

For the same reasons, we conclude Castillo was prejudiced by the trial court's failure to give the proffered instruction in this case. We find that a new trial on the issue of damages is warranted.