Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 7. Proximate Cause
or no injury at all, if he had not had an unusually thin skull or an unusually weak
heart.
. . .
The eggshell plaintiff rule rejects the limit of foreseeability that courts ordinarily require
in the determination of proximate cause. PROSSER & KEETON § 43, at 291 (“The defendant is held
liable for unusual results of personal injuries which are regarded as unforeseeable. . . .”). Once
the plaintiff establishes that the defendant caused some injury to the plaintiff, the rule imposes
liability for the full extent of those injuries, not merely those that were foreseeable to the
defendant. RESTATEMENT (SECOND) OF TORTS § 461 (1965) (“The negligent actor is subject to
liability for harm to another although a physical condition of the other . . . makes the injury
greater than that which the actor as a reasonable man should have foreseen as a probable result of
his conduct.”).
[The court reversed the judgment of the trial court and remanded the case for a new trial.]
Notes
1. Eggshell skulls. Why not treat Mr. Benn like the plaintiff in Ryan? There are strong
arguments for doing so. Among other things, note that the so-called “eggshell plaintiff” rule,
which holds that the defendant takes the plaintiff as she finds him, means that unforeseeably
valuable limbs or lives will produce unexpectedly large damages. Driving negligently in such a
way as to break tennis champion Venus Williams’s right arm, or to injure one of virtuoso cellist
Yo Yo Ma’s hands, for example, will produce far greater damages than, say, running into law
professor John Witt’s shoulder. But the rule of Benn v. Thomas holds the defendant liable for the
damages to the plaintiff the defendant happens to findeven if there was no notice of the special
risks in question. Should people with special vulnerabilities be required to insure themselves
against lossesor perhaps to take special precautions against those losses? Should it matter if the
unusual vulnerability is the result of an unusually valuable asset (Williams’s arm, Ma’s hand, etc.)
as opposed to an unusual liability like an eggshell skull?
Arguments in favor of the eggshell plaintiff rule do exist. Consider what would happen if
the law put the burden of unexpected harm on plaintiffs like Mr. Benn, rather than on defendants
like Thomas. What would the measure of damages be? Note that the risk of unexpectedly high
damages in eggshell skull plaintiff cases is matched by opportunities for unexpectedly low
damages when defendants turn out to be unforeseeably robust or when their damages turn out, for
whatever reason, to be unusually low.
2. Whence the vulnerability? Does it make a difference whether Mr. Benn had an underlying
heart condition because of a congenital defect, because of poor health habits of his own, or
because of prior conduct by a third party? What about prior negligent conduct by a third party?
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