Eggshell Plaintiffs & Pre-existing Conditions
In law school we learned about the "eggshell"
plaintiff. This is a
plaintiff who is as fragile as an
eggshell, and who suffers
injuries that are disproportionate with what one might expect given the facts of a particular accident. For example: A person has just had
back surgery. Being rear-ended at 5 mph would probably not do much damage to most people. But someone who just had back surgery might be
injured very badly. He or she is as fragile as an egg shell.
Personal injury law in California allows the eggshell
plaintiff to collect for all of his or her
There are three relevant jury instructions (that not only instruct the jury, but nicely summarize the law) that set out the test for the typical eggshell plaintiff:
CACI 430: Causation: Substantial Factor:
A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.
[Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.]
"The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical. Thus, 'a force which plays only an "infinitesimal" or "theoretical" part in bringing about injury, damage, or loss is not a substantial factor', but a very minor force that does cause harm is a substantial factor. This rule honors the principle of comparative fault." (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79 [86 Cal.Rptr.2d 846, 980 P.2d 398], internal citations omitted.)
"The text of Restatement Torts second section 432 demonstrates how the 'substantial factor' test subsumes the traditional 'but for' test of causation. Subsection (1) of section 432 provides: 'Except as stated in Subsection (2), the actor's negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent.' . . . Subsection (2) states that if 'two forces are actively operating . . . and each of itself is sufficient to bring about harm to another, the actor's negligence may be found to be a substantial factor in bringing it about.' " (Viner, supra, 30 Cal. 4th at p. 1240, original italics.)
"[A plaintiff] is not required to eliminate entirely all possibility that the defendant's conduct was not a cause. It is enough that he introduces evidence from which reasonable [persons] may conclude that it is more probable that the event was caused by the defendant than that it was not. The fact of causation is incapable of mathematical proof, since no [person] can say with absolute certainty what would have occurred if the defendant had acted otherwise. If, as a matter of ordinary experience, a particular act or omission might be expected to produce a particular result, and if that result has in fact followed, the conclusion may be justified that the causal relation exists. In drawing that conclusion, the triers of fact are permitted to draw upon ordinary human experience as to the probabilities of the case." ' . . . ' "A mere possibility of . . . causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant." ' " (Raven H. v. Gamette (2007) 157 Cal.App.4th 1017, 1029–1030.
CACI 3927: Aggravation of Preexisting Condition or Disability:
[Name of plaintiff] is not entitled to damages for any physical or emotional condition that [he/she] had before [name of defendant]'s conduct occurred. However, if [name of plaintiff] had a physical or emotional condition that was made worse by [name of defendant]'s wrongful conduct, you must award damages that will reasonably and fairly compensate [him/her] for the effect on that condition.
CACI 3928: Unusually Susceptible Plaintiff:
You must decide the full amount of money that will reasonably and fairly compensate [name of plaintiff] for all damages caused by the wrongful conduct of [name of defendant], even if [name of plaintiff] was more susceptible to injury than a normally healthy person would have been, and even if a normally healthy person would not have suffered similar injury.
"The tortfeasor takes the person he injures as he finds him. If, by reason of some preexisting condition, his victim is more susceptible to injury, the tortfeasor is not thereby exonerated from liability." (Rideau v. Los Angeles Transit Lines (1954) 124 Cal.App.2d 466, 471 [268 P.2d 772], internal citations omitted.)
We hear a lot about "pre-existing" conditions and assume that a tortfeasor is not responsible for damages related to these conditions. Don't confuse this with health insurane - where pre-existing conditions are quite problematic. While it is true that the tortfeasor is not responsible for the original condition, they are responsible for additional harm suffered by the plaintiff after this condition already exists.
Pete Clancy is a personal injury lawyer in Oakland, at Clancy & Diaz, LLP. They also have an office in Berkeley, California. Pete can be reached at 510-251-8868 or by email at email@example.com