Baldwin Haspel Burke & Mayer LLC

Maritime Update: The Burden of Proof When There are Preexisting Conditions

On May 12, 2017, the Fifth Circuit Court of Appeals again addressed the law with regard to a plaintiff with pre-existing conditions which make him/her more susceptible to disability. In the case of Koch v. USA, the appeals court affirmed the trial court judgment that the government had failed to prove the plaintiff was disabled before the accident. They also affirmed the government did prove the pre-existing condition would inevitably worsen even without the accident. As a result, the government was liable in full for damages without discount.

Plaintiff Koch fell and suffered personal injuries while aboard the S.S. Altair, a public vessel owned by the United States. Koch was a 54-year-old foreman and employee of Economy Iron Works and was inspecting the vessel to bid on repair work on the vessel. Following a bench trial, the district court determined negligence attributable to the Government—failure to provide adequate lighting of a stairwell—was the factual and legal cause of Koch’s fall, resulting in harm and permanent disability. The court awarded $2.83 million in damages.

The Government contended on appeal that, prior to the February 2012 accident, Koch had become disabled by his preexisting conditions. These included painful chronic osteoarthritis in both his knees, degenerative disc disease in his cervical spine and carpal tunnel syndrome in his wrists. Koch’s preexisting conditions were not disputed, but the district court rejected the argument Koch had been disabled by them prior to his accident.

The Fifth Circuit noted: It is a settled principle of tort law that when a defendant’s wrongful act causes injury, he is fully liable for the resulting damage even though the injured plaintiff had a preexisting condition that made the consequences of the wrongful act more severe than they would have been for a normal victim. The defendant takes the plaintiff as he finds him. A plaintiff’s recovery for damages caused by a defendant’s wrongful act may not be proportionately reduced because of a preexisting weakness or susceptibility to injury such as an osteoarthritic condition or a weakness caused by a previous injury.

They went on to note that there are two exceptions to the general rule: First, when a plaintiff is incapacitated or disabled prior to an accident, the defendant is liable only for the additional harm or aggravation that he caused. Second, when a plaintiff has a preexisting condition that would inevitably worsen, a defendant causing subsequent injury is entitled to have the plaintiff’s damages discounted to reflect the proportion of damages that would have been suffered even in the absence of the subsequent injury, but the burden of proof in such cases is upon the defendant to prove the extent of the damages that the preexisting condition would inevitably have caused.

Applying the foregoing principles, the district court concluded that the defendant’s negligent failure to safely illumine the stairwell was the factual and legal cause of Koch’s accidental fall and its disabling consequences. Since the government had failed to prove the extent of damages the preexisting conditions would have caused, it was fully liable to the plaintiff for his resulting harm and disability. This was even though the preexisting conditions made the consequences of the negligence more severe than they would have been for an ordinary victim.

The full decision can be found here:

If you have any questions regarding this matter, please contact Bill Schwartz at (504) 569-2900 or



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