49 Pages Posted: 16 Jan 2012 Last revised: 23 Oct 2015
Date Written: January 16, 2012
For more than a century, courts have universally applied the eggshell plaintiff rule, which holds tortfeasors liable for the full extent of the harm inflicted on vulnerable “eggshell” victims. Liability attaches even when the victim’s condition and the scope of her injuries were completely unforeseeable ex ante.
This Article explores the implications of this rule, employing a pioneering economic analysis of eggshell liability. It argues that the eggshell plaintiff rule misaligns parties’ incentives in a socially undesirable way. The rule subjects injurers to unfair surprise, fails to incentivize optimal behavior when injurers have imperfect information about expected accident losses, and fails to account for risk aversion, moral hazard, and the judgment-proof problem. Additionally, the eggshell plaintiff rule dulls victims’ incentives to take care and self-protect against losses.
To solve these problems, this Article proposes a revolutionary transformation to eggshell liability: courts should reject the eggshell plaintiff rule and replace it with a foreseeability rule in all cases. Under this approach, tortfeasors would be liable only for the reasonably foreseeable scope of victims’ injuries. Insurance markets would then step in to compensate the unfortunate eggshells among us, without compromising optimal behavioral incentives for both injurers and victims.
Keywords: eggshell plaintiff, thin skull plaintiff, tort damages, tort remedies, law and economics
Suggested Citation: Suggested Citation
Calandrillo, Steve and Buehler, Dustin, Eggshell Economics: A Revolutionary Approach to the Eggshell Plaintiff Rule (January 16, 2012). Ohio State Law Journal, Vol. 74, No. 3, pp. 375-422 (2013); University of Washington School of Law Research Paper No. 2012-01; University of Arkansas Research Paper No. 13-01. Available at SSRN: https://ssrn.com/abstract=1986268 or http://dx.doi.org/10.2139/ssrn.1986268
By John Gardner