When a plaintiff seeks damages for the aggravation of a preexisting condition, liability cannot be prorated among nonparties whose conduct merely created the preexisting condition. A Colorado appellate court affirmed a judgment of liability against the defendant, but reversed the damages award, remanding the matter to the trial court for a new trial on damages.
Dawn Fried sought treatment from a mental health center for psychological problems she was experiencing in the wake of her recent divorce from an abusive husband, as well as her history of childhood abuse by her brother and parents. The center referred Fried to Corky Leong, a psychologist at the center. Leong and Fried became romantically involved, and Leong continued to treat Fried. After three years, Leong broke off the relationship and moved to another state. During the time of treatment, Fried suffered from depression, began exhibiting symptoms of multiple personality disorder, developed migraine headaches, and became addicted to pain killers. She also claims that she was raped on two occasions by third patties during her treatment.
Fried brought an action against Leong alleging that his "boundary violations" during treatment aggravated her preexisting psychological condition. Leong answered that Fried's condition was no worse after treatment than it had been previously. Over Fried's objection, the court instructed the jury that they could consider the actions of designated nonparties, Fried's brother, parents, exhusband, and alleged rapists, in allocating fault. The jury returned a verdict against Leong, but apportioned 97% of the fault to the nonparties and only 3% to Leong. Fried appealed.
The court agreed with Fried and reversed the damages award, remanding the case to the trial court for a new trial on damages. The court noted that the statute relied upon by the trial court replaced common law joint and several liability in allocating blame among several wrongdoers for a plaintiffs injury. Since, in this case, the action was strictly for the aggravation of preexisting injuries, the conduct of the perpetrators of the original injuries would not be relevant. Thus, the court held that liability for the aggravation of Fried's injuries could not be allocated to the nonparties who only were at fault in creating Fried's preexisting injuries.
