Back in December of 2012, I wrote a post about causation where I promised to further explain a weird part of tort law…..the Eggshell Skull Theory. In the causation post I discussed how you could be liable for a person’s injuries even if the act that caused the injury would not have foreseeably caused the injury that resulted.
An example would be if you threw a ball at someone and hit them in the head (think rubber playground ball here and not 100 mph fastball.) Under normal circumstances you would expect the person to maybe get a bruise or at worst get a concussion.
But what if that person, unbeknownst to you, had a rare medical condition that made their skull incredibly brittle. Your little ball prank results in a fractured skull, swelling of the brain, coma, and a permanent vegetative state or even worse, death.
You didn’t mean to harm the person so why should you (or hopefully your insurance company) be liable for such unforseen injuries……..because of Eggshell Skull Theory. Why would the justice system expect you to pay for your victim’s unexpected injuries? Well, because the court’s main aim is to right injustices.
Would it be fair to expect the person with the eggshell skull to pay for all the medical care that could add up to millions of dollars? After all, the only thing that person did wrong was get hit by the ball that you threw. That person may not have even known he or she had the condition.
Now, there are a few caveats here. If the person knew they had an eggshell skull and decided to play dodgeball with you, a theory called Assumption of Risk may help reduce some of your liability. If however you saw the person walking across the park and you hit them on purpose or even accidentally due to a bad throw…..you are on the hook.
As an old law professor of mine used to say, “You take the victim as they are, not as you think they are.” So consider this the next time you want to play a prank and give a friend of yours a little scare, “do they have a heart condition making them more susceptible to a heart attack and am I going to be liable for this death?”
I know such consideration makes for a much duller world. Ask your insurance broker (who probably isn’t the most exciting person in the world already) whether they want boredom or excitement with your liability policy? I bet I know the answer.
So remember this when you are out and about in the world, “how will my actions affect others around me?” I guarantee your insurance broker will be ecstatic. And for those YOLO (You Only Live Once) type of people, I leave you with this thought,”what if you are the one with the eggshell skull?”