(dissenting).
The position espoused by the majority, that CIVJIG 91.40 misstates Minnesota law, utterly fails to answer the essential question raised by CIVJIG 91.40: what happens if the jury simply cannot apportion damages caused by the preexisting injury and those caused by the accident, even after all the evidence has been presented? The majority leaves the plaintiff in that case completely uncompensated. A plaintiff with a symptomatic preexisting injury whose symptoms are significantly aggravated by a tortfeasor is left to bear the fault of the tortfeasor. This result is contrary to our policy of allowing fair compensation to injured plaintiffs. This result is also contrary to the law of the vast majority of states that have considered this issue.
It has long been recognized that a tort-feasor is liable for all injuries proximately caused by the tortfeasor’s negligence, even if such injuries could not have been anticipated. Dellwo v. Pearson, 259 Minn. 452, 455, 107 N.W.2d 859, 861 (1961); Christianson v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 67 Minn. 94, 96-97, 69 N.W. 640, 641 (1896). In the context of preexisting physical conditions, this principle is called the eggshell (or thin skull) plaintiff doctrine, and is fundamental to tort law. See, e.g., Restatement (Second) of Torts § 461; Purcell v. St. Paul City Ry. Co., 48 Minn. 134, 139, 50 N.W. 1034, 1035 (1892) (“[A]ny one injured by the negligence must be entitled to recover to the full extent of the injury so caused, without regard to whether, owing to his previous condition of health, he is more or less liable to injury.”). The primary policy reason for this doctrine is that as between the innocent victim and the negligent tort-feasor, the tortfeasor should answer for his or her negligent actions. Dan B. Dobbs, The Law of Torts § 124 at 425 (5th ed.2000).
The issue raised by this case is slightly different, in that rather than a preexisting *749condition caused by a disease or a congenital propensity, the plaintiff had a preexisting condition caused by a previous injury. But why should tortfeasors be “given a break” if a plaintiffs preexisting condition was caused by injury rather than a congenital propensity? I find no rational reason for such a distinction.
I believe that the policy reason for holding a tortfeasor liable in an eggshell plaintiff situation — that the liability for injury should rest with the tortfeasor and not the innocent victim — is equally applicable to aggravation of a preexisting injury. The majority makes much of the distinction between the eggshell plaintiff doctrine and aggravation of preexisting injuries, minimizing the considerable overlap between the two. Existing case law illustrates the vast gray area consisting of injury to plaintiffs with preexisting conditions such as osteoarthritis or degenerative disc disease. The eggshell plaintiff doctrine has been applied to plaintiffs with such conditions as respiratory troubles caused by smoking (Wolbers v. Finley Hosp., 673 N.W.2d 728, 735-36 (Iowa 2003)); atrophied muscle (Grebasch v. State, 674 N.W.2d 682, 2003 WL 22697266 at *4-5 (Iowa Ct.App. Nov.17, 2003)); degenerative disc disease (McDevitt v. Wenger, No.2002AP090071, 2003 WL 22700553 at *4 (Ohio Ct.App. Nov. 10, 2003)); and osteoarthritis (Smith v. Galaz, 330 Ark.222, 953 S.W.2d 576, 578 (1997)). These are conditions that qualify equally well as preexisting injuries. In the instant case, the evidence shows that Rowe had degenerative joint disease before the accident, but that her prior neck and back problems had resolved to the point that she “felt really great” and “better than [she] had in a long time.” How does her preexisting condition differ from that of the eggshell plaintiff with osteoarthritis? I believe that it does not.
The majority deems this position an impermissible extension of existing Minnesota law, claiming that it would tend to overcompensate the plaintiff and run counter to our policy of ensuring that the defendant is responsible only for the damages that he or she caused. However, the majority’s position runs counter to our equally important policy of protecting the innocent victim over the wrongdoer. See, e.g., Ross v. Great N. Ry. Co., 101 Minn. 122, 125, 111 N.W. 951, 953 (1907) (“Where a tort is committed * * *, the wrongdoer is liable for the proximate results of that injury, although the consequences are more serious than they would have been, had the injured person been in perfect health.”). The majority arbitrarily makes a decision that sacrifices one public policy for another. Rather than pick and choose among competing policies, I believe the better approach is to ask whether placing the burden of apportionment on the defendant in this situation is reasonable, and whether it has support in case law from other jurisdictions.
A leading treatise on tort law has adopted the position that the defendant should bear the burden of apportionment. It is generally accepted that when an indivisible injury is caused by two or more tortfeasors, courts impose joint and several liability, holding each tortfeasor liable for the entire injury. Dobbs, supra, § 174 at 423. However, “the principle is not limited to cases of two tortfeasors, but can apply whenever the injury inflicted by the tortfeasor combines with another condition to produce an indivisible harm.” Id. § 174 at 425. Ideally, the tortfeasor will be held liable only for any aggravation of the preexisting condition. Id. “But if the tor-tious harm combines with the existing condition to leave the plaintiff with an indivisible injury, courts may impose liability for the whole injury upon the defendant unless *750he can show grounds for apportionment.” Id.
There is also support for this position in Restatement (Second) of Torts, which provides:
Where the tortious conduct of two or more actors has combined to bring about harm * * *, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor.
Restatement (Second) of Torts § 433B(2) (1965). An official comment makes it clear that this section may be applied to single-defendant situations where some preexisting harm is aggravated:
The reason for the exceptional rule placing the burden of proof as to apportionment upon the defendant or defendants is the injustice of allowing a proved wrongdoer who has in fact caused harm to the plaintiff to escape liability merely because the harm which he has inflicted has combined with similar harm inflicted by other wrongdoers, and the nature of the harm itself has made it necessary that evidence be produced before it can be apportioned. * * * As between the proved tortfeasor who has clearly caused some harm, and the entirely innocent plaintiff, any hardship due to lack of evidence as to the extent of the harm caused should fall upon the former.
Restatement (Second) of Torts § 433B cmt. d (emphasis added). The majority implicitly concedes that this comment correctly advocates shifting the burden to the defendant in situations where a preexisting condition was caused by a previous tortfea-sor, and that the defendant should not be “given a break” in these situations. But the majority’s holding disregards these situations, which highlights the arbitrariness of the majority’s decision to abandon our policy of protecting the innocent injured person over the wrongdoer.
Of the states that have considered this issue, the vast majority have held that if the jury cannot apportion damages between a preexisting and an aggravating injury, the defendant is liable for the total injury. LaMoureaux v. Totem Ocean Trailer Express, Inc., 632 P.2d 539, 545 (Alaska 1981); Newbury v. Vogel, 151 Colo. 520, 379 P.2d 811, 813 (1963); Maser v. Fioretti, 498 So.2d 568, 570 (Fla.Dist.Ct.App.1986); Bushong v. Kamiah Grain, Inc., 96 Idaho 659, 534 P.2d 1099, 1101 (1975); Lovely v. Allstate Ins. Co., 658 A.2d 1091, 1092 (Me.1995); McNabb v. Green Real Estate Co., 62 Mich.App. 500, 233 N.W.2d 811, 819-20 (1975), superseded by statute on other grounds, Mich. R. Evid. 404; Brake v. Speed, 605 So.2d 28, 33 (Miss.1992); David v. DeLeon, 250 Neb. 109, 547 N.W.2d 726, 730 (1996); Kleitz v. Raskin, 103 Nev. 325, 738 P.2d 508, 509 (1987); Pang v. Minch, 53 Ohio St.3d 186, 559 N.E.2d 1313, 1324-25 (1990) (relying on Restatement (Second) of Torts § 433B cmt. d); Haws v. Bullock, 592 S.W.2d 588, 591 (Tenn.Ct.App.1979); Tingey v. Christensen, 987 P.2d 588, 592 (Utah 1999); Phennah v. Whalen, 28 Wash.App. 19, 621 P.2d 1304, 1309 (1980); Bigley v. Craven, 769 P.2d 892, 898 (Wyo.1989).1 Only two *751states considering the issue of indivisible injury have rejected this approach. See Foggia v. Des Moines Bowl-O-Mat, Inc., 543 N.W.2d 889, 893-94 (Iowa 1996); Mayer v. N. Arundel Hosp. Ass’n, Inc., 145 Md.App. 235, 802 A.2d 483, 494 (2002). Two states have determined that if the jury is unable to apportion, then the damages are divided equally among the various causes. Montalvo v. Lapez, 77 Hawai’i 282, 884 P.2d 345, 357-58 (1994); Card v. State, 57 Conn.App. 134, 747 A.2d 32 (2000). By adopting the majority’s holding, Minnesota chooses a path rejected by every court but Iowa and Maryland.
In each of the states placing the burden on the defendant, the court recognized the importance of holding the tortfeasor responsible only for the aggravation of a preexisting injury, but recognized that when apportionment is impossible, the tortfeasor should bear the burden of uncertainty in the determination of damages. See, e.g., Tingey, 987 P.2d at 592. This proposition follows from several legal principles: a tortfeasor takes an accident victim as he or she finds them; a tortfeasor bears the burden of unpredictability in the extent of the damage to a victim; and a tortfeasor should not escape liability for damage caused by the tortfeasor because the damages cannot be proved with precision. Id.
CIVJIG 91.40 follows the reasoning laid out in The Law of Torts and case law from the various jurisdictions cited above. It does not place the burden of apportionment on the defendant in all situations. The plaintiff still has the burden of showing that the accident caused an aggravation of a preexisting condition, thus furthering the policy of placing the burden on the party with the greater amount of information. CIVJIG 91.40 clearly states that the defendant is “liable only for any damages that you [the jury] find to be directly caused by the accident.” This directly addresses the majority’s concern for not overcompensating the plaintiff. The tortfea-sor is only held liable for the entire injury in the rare case where the jury, upon all the evidence produced by both plaintiff and defendant, is unable to separate the harm caused by the tortfeasor from the plaintiffs preexisting injury.2 This part of the instruction emphasizes the importance of protecting the innocent victim over the wrongdoer. Thus, CIVJIG 91.40 encourages holding the defendant liable only for the damages he or she caused, but also recognizes the need to balance this policy with that of protecting the innocent plaintiff, rather than disregarding one or the other.
For the reasons stated, I would adopt the following holding:
Where a preexisting disease or condition exists, and where a tortfeasor causes aggravation of the condition and disability and pain results, and no apportionment of the damage between that caused by the preexisting condition and that caused by the tortfeasor can be made, the tortfeasor is responsible for the entire damage.
I would reverse the court of appeals and uphold the award of damages to the plaintiff.
. The Supreme Court of New Jersey has held that "[I]n a situation where * * * malpractice or other tortious act aggravates a preexisting disease or condition, * * * the burden of proof should be shifted to the culpable defendant who should be held responsible for all damages unless he can demonstrate that the damages * * * are capable of some reasonable apportionment.” Fosgate v. Corona, 66 N.J. 268, 330 A.2d 355, 358 (1974). The supreme court has not rejected the application of this rule to negligence cases other than medical malpractice.
. The majority argues that CIVJIG 91.40 tries to do too much by sweeping in cases where apportionment is possible. This is manifestly not the case. CIVJIG 91.40 expressly instructs the jury to shift the burden only in instances where apportionment is impossible. As the majority notes, citing the court of appeals, "it would be the exceptional case in which there is no reasonable basis for apportionment.” Rowe v. Munye, 674 N.W.2d 761, 768 (Minn.App.2004). The majority appears to have little confidence in the ability of a jury to do its job, when it worries that “confusing or conflicting testimony” could lead to inability to separate damages.