Wednesday, December 27, 2017

Is the Other Party Liable for Damages if I have a Pre-Existing Condition?

Eggshell Skull Defense Pre-existing Condition

The simple answer is yes, another party may still be liable for an injury that occurred even if that injury aggravated a pre-existing condition or triggered an illness to happen sooner than it was likely going to happen on its own.  Additionally, someone may be still liable for injuring or causing an old injury to flare up again.  Just because someone is more fragile or likely to succumb to certain injuries, does not provide the tortfeasors immunity from negligent acts.  This is sometimes called the Eggshell Skull defense, the Eggshell Rule, or the Thin Skull Rule.  The idea is that even if someone may have a condition that makes them predisposed to injury, the other party is not off the hook for negligence when compromising that condition. 

 The “eggshell skull” rule commonly applies in the following circumstances:
  • triggering of a previously latent condition;
  • aggravation of a condition that was formerly under control;
  • exacerbation of a preexisting bodily or psychological disorder or disease; and 
  • hurrying or speeding up of a disability or death.


In a Florida case known as Silva v. Stein, a woman went to her local beauty salon for a perm. (See Silva v. Stein,527 So. 2d 934 (Fla. Dist. Ct. App. 1988). Ms. Stein told her stylist that she sometimes reacts strongly to chemical solutions. Even though Ms. Stein had high susceptibility to certain chemicals, the stylist decided to still give Ms. Stein the perm.  Shortly after her perm, Ms. Stein had an extremely rare immunological reaction to the chemicals in the perm. Ms. Stein later filed a negligence claim due to her damaging reaction to the chemicals.  The beautician argued that no one could have possibly foreseen this strange reaction to the perm, thus she could not be liable for damages.  The jury did not agree and awarded Ms. Stein damages for the unfortunate event. The stylist appealed and the jury verdict was once again upheld by Chief Judge Schwartz. The Judge reasoned that “the defendant is responsible for whatever adverse consequences the plaintiff suffers—whether they are ‘foreseeable’ or not. It is the familiar but accurate doctrine that ‘the tortfeasor takes the plaintiff as he finds him’ which is instead controlling.”( See above link). The judge in this case makes clear that even though you are more likely than others to be injured, that does not place all the responsibility for the injury on you; and thus, the negligent party must still pay damages. 

This “eggshell” type of liability is not just applicable in unfortunate perms. The exacerbation of preexisting conditions occurs in car accidents as well.  For example, in Iowa a man named Loras Benn was rear-ended while he was in the passenger seat of a car and suffered a bruised chest and a broken ankle (See Bennv. Thomas, 512 N.W.2d 538 (Iowa 1994). Benn tragically died from a heart attack just days later. Mr. Benn’s estate sued the driver of the car who crash into him for monetary damages. Mr. Benn had a history of heart issues and would have possibly lived a shortened life due to his heart condition. The defendant contended that they should not be liable because a heart condition was present and it was just a matter of time before Mr. Benn would die due to his heart disease. The Iowa Supreme Court did not accept the plaintiff’s arguments and ruled in favor of Mr. Benn’s estate. The court reasoned that under the eggshell rule, a defendant could be responsible for all injuries resulting from the accident, even if the plaintiff suffers injuries more severe than what an average individual would have suffered in the same situation. When the negligent act results in injury to a person with a pre-existing ailment, it is the action, and not the disorder, that is the cause of the injury. This rule imposes liability irrespective of whether the precise injury suffered was foreseeable.

State of Florida on the Eggshell Rule

In Florida, juries are regularly told that they must rule in favor of someone who had a disorder aggravated due to the fault of someone else. 

If you find that the defendant caused a bodily injury, and that the injury resulted in an aggravation of an existing disease or physical defect or activation of a latent disease or physical defect, you should attempt to decide what portion of claimant’s condition resulted from the aggravation or activation. If you can make that determination, then you should award only those damages resulting from the aggravation or activation. However, if you cannot make that determination, or if it cannot be said that the condition would have existed apart from the injury, then you should award damages for the entire condition suffered by claimant. 

This means that that even though a previous illness or condition might have been present, the jury needs to decide what part of the current injury is the wrongdoer’s fault.  Also, the jury may decide that the wrongdoer should be liable for the entire injury.

Exception to the Eggshell Rule

We have already established that a defendant is responsible for any damages they cause, even if those damages were exacerbated by a pre-existing condition or illness. However, the one exception to the eggshell rule deals with plaintiffs who cause their own pre-existing condition or factor that accelerates an injury. For example, say a person who is extremely intoxicated by alcohol is involved in an accident in which they are the passenger. They hit their head on a sharp edge of the car's interior. This wound causes them to bleed, but the alcohol causes them to bleed much more quickly; they suffer permanent brain damage from the bleeding.

In this example, the eggshell rule would not be applicable because the pre-existing condition that accelerated the injury was self-caused. This means that the defendant would only be partially liable for the injury and the eggshell rule could not be applied. This example would more likely be considered contributory negligence and/or comparative negligence.

How do you know if the eggshell rule applies?

When a personal injury case is brought to an attorney, they will usually be able to see right away if the eggshell rule is applicable in the particular circumstances of the case. If the case goes to court, the judge along with the attorneys will usually determine whether or not the rule applies. If it does, the judge will instruct the jury to consider the rule as in the above example from the State of Florida's jury instructions. 


If you or a loved one had a latent disease or defect aggravated or exacerbated, you should consult with a law firm that has experience handling these types personal injury claims to ensure that you receive the maximum compensation for your injuries, pain and suffering, and future loss of income. The Dolman Law Group serves personal injury clients all over the state of Florida from their conveniently located offices around the state. Call for a case evaluation today at 727-451-6900, and rest assured that our team is ready and willing to take the case as far as necessary to reach an appropriate resolution for your case.

800 North Belcher Road
Clearwater, FL 33765
(727) 451-6900