Ruth Lee Johnson J.D.

So Sue Me

The Legal Treatment of "Oversensitive" Victims

In lawsuits, victims can say, "Take me as you find me."

Posted Aug 28, 2019

Source: Pixabay

The "eggshell" rule, also known as the "thin skull" rule, is one of the oldest and most well-established legal principles—but not very frequently discussed or well-known outside of legal circles. Nevertheless, it is a universally applied rule in American jurisprudence and has significant consequences for plaintiffs and defendants alike.

Under the eggshell rule, the defendant of a lawsuit must take the victim as he finds him. In other words, if the defendant is found liable by the court, then the defendant is liable for all of the damage that occurred to the victim.

This is true even if the victim is frailer than average. This is true even if the victim is more susceptible to injury than average. This is true even if the victim is weaker than the typical person. 

The eggshell rule can be traced back to the late 1800s. In the Wisconsin Supreme Court case Vosburg v. Putney, a 14-year-old plaintiff had been playfully kicked in the leg by a 12-year-old defendant while the two boys were in school.

Although such a kick would have ordinarily resulted in very little damage, it turned out that the victim had an unknown microbial condition that was irritated. He eventually lost the use of his leg entirely.

No one could have predicted this level of injury. The 14-year-old boy certainly did not intend for such harm to occur. Nevertheless, the court said, “The wrongdoer is liable for all the injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him.”

The eggshell rule, however, applies only to the extent of the damages. It does not apply to define a "wrongful act" under the law. For example, contrast the following two scenarios. First, if a victim is particularly frail such that she suffers from a heart attack due to a defendant pushing her (i.e., battery), then the defendant would be liable for the full medical damages. This is the eggshell rule in its application to damages, as discussed above.

In contrast, if a victim is particularly frail such that she genuinely feels battered by an angry look—would the angry look constitute a "wrongful act" under the law? The answer is no because the eggshell rule only applies after the "wrongful act" has been established and when the degree of damages are at issue.

What if the victim has a well-documented psychiatric disorder that causes her to feel physical pain when faced with an angry look? The answer is still no. The defendant would not be liable. This is because the eggshell rule does not redefine what is considered a "wrongful act" under the law. 

Why do we have this nuance? Why does the eggshell rule apply to damages, but not to the definition of a "wrongful act"? The question may be difficult to answer until we turn to behavioral psychology and consider its implications.

If the eggshell rule were to redefine what constitutes a "wrongful act," then that would most likely over-deter potentially risky behavior. In other words, people would be inordinately careful, because they would be unable to predict what could result in legal exposure. You would not know if your neighbor would construe a cheerful "Hello!" as some sort of intentional infliction of emotional distress; you would not know if casually shaking someone's hand will result in their arm crumbling and your finances being vacuumed into a huge lawsuit.

On the other hand, once a "wrongful act" has been established, the eggshell rule makes sense because—between the defendant and the victim—someone has to bear the extra cost of the victim's frailty. And it seems that from an equity standpoint, it is better for the defendant to bear the cost. After all, between the victim and the defendant, the defendant has done something wrong.

Furthermore, there is less of a risk of over-deterrence for the defendant, because once the "wrongful act" is established, it is (by definition) the type of behavior that society would prefer to deter in any event. The eggshell rule also allows people who are more frail—psychologically or physically—to live their lives more fully, with the hope of potential recourse if they are injured.


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