THE “EGG SHELL” PLAINTIFF
Aggravation/Exacerbation vs. Precipitation
Victor, a laborer at a construction site, was hammering a nail into concrete. When he hit the nail it rebounded and struck him in the left eye. Victor lost the sight of that eye. But here’s the twist – because of a childhood disease, Victor had no useful vision in his right eye. With the protections afforded to construction workers by New York’s embattled [fn1] Labor Law (§ 240, et. seq.), Victor had a very strong claim against the owner and GC of the construction project for the failure to meet their non-delegable duty to provide Victor with suitable eye protection [fn2].
But what is the measure of Victor’s loss? Is it fair that the owner and GC bear responsibility for a totally blind Victor? After all, he was already blind in his right eye. On the other hand, although blind in one eye before the trauma of the accident, Victor was able to work, drive a car, read a book, see a movie, watch TV, and to do virtually everything a person with normal vision could do. Post-accident he was totally blind, and while blind people can do marvelous and amazing things, Victor could no longer work as a construction laborer, and no matter how well he was able to adjust, his life was forever changed. Here are the questions: Did the accident aggravate or exacerbate a pre-existing injury, or did it precipitate a new injury? Was the injury caused by the accident total blindness, or was it blindness in one eye? Wasn’t Victor’s right eye blindness a known pre-existing condition? Otherwise stated, should the owner and GC pay damages for Victor’s total blindness, or only in an amount to compensate him for a loss of vision of one eye?
While arguments can be made on both sides of Victor’s case, this is a particularly direct “egg shell plaintiff “scenario, which mandates that one legally responsible for injury to another must take that person as he finds him. PJI 2:283 suggests that in a case such as Victor’s, the jury be charged as follows:
The fact that the plaintiff may have a physical or mental condition that makes him more susceptible to injury than a normal healthy person does not relieve the defendant of liability for all injuries sustained as a result of its negligence. The defendant is liable even though those injuries are greater than those that would have been sustained by a normal healthy person under the same circumstances (id).
The charge takes us into the fuzzy world of Proximate Cause, in which the general principle is that a personal injury plaintiff is entitled to compensation for all damages which are the proximate result of his injuries, Wagner v. Mittendorf, 232 NY 481. But note, if the jury finds the condition would have developed without the trauma of the accident, it must take that into account as bearing on the amount of damages, even though predicting the course of plaintiff’s future, apart from the accident, may be difficult or even impossible, McCahill v. NY Transp. Co., 201 NY 221.
In our opinion, Victor is entitled to be compensated for total blindness. But contrast PJI 2:282, which concludes, “… The plaintiff can recover only for damage caused by the aggravation of the pre-existing condition, not the condition itself.” (id). How does that impact on Victor’s entitlement to damages? Following Lopato v. Kinney, 73 AD2d 565, the jury is obliged to take the plaintiff’s pre-existing condition into account, and to limit its award to the extent it finds the negligence of the defendant further injured or disable the plaintiff. The opinions of our colleagues in the defense bar about the measure of damages in Victor’s case are not likely to agree with ours. In the trial of Victor’s case, we argued our position to the jury and defense counsel made the contrary argument. The Court charged both PJI 2:282 and 2:283, adding that it was up to the jury to determine which legal theory best reflected the facts as they found them to be. Both sides took exception to the Court’s charge. In its answers to specific jury interrogatories, the jury found the defendants responsible for Victor’s total blindness.
As in the great body of legal issues where either side can be reasonably or at least colorably supported, the devil is in the details, and the conclusion is often sensitive to the facts of the particular case. As less obvious scenarios are encountered, the answer to how to measure damages becomes more and more blurred.
There are distinctions between conditions which were dormant, quiescent or latent, or previously symptomatic, but at the time of the accident, in remission, and conditions which were symptomatic, limiting and even disabling before the accident, but because of the trauma of the accident, became more painful, limiting or disabling. The ultimate decision as to whether a pre-existing condition was precipitated or merely aggravated by an accident revolves around concepts of proximate cause. Common sense will usually be a guide to the correct result.
Many personal injury law firms are reluctant to undertake cases where clients had pre-existing conditions, and seek to avoid the complications attendant to cases where a plaintiff had prior surgery, was already disabled, or was otherwise physically, mentally or emotionally limited. We welcome them for the unique opportunities they present.
(fn1) New York’s Labor Law, often referred to as the “Scaffold Law” faces an annual assault in the New York State Legislature from the construction and insurance industries and their lobbies. It survives because the lives it saves and the serious injuries it avoids are statistics that our legislators are unable (so far) to ignore.
[fn2] The New York State Industrial Code, charges the owners and general contractors of construction and other projects where employees are required to engage in any operation dangerous to the eyes with a non-delegable duty to provide “…suitable eye protection”. The failure to do so makes the owner and GC responsible for any resultant eye injury, without proof of traditional concepts of negligence. Specifically, § 23-1.8 (a) provides:
Eye protection. Approved eye protection equipment suitable for the hazard involved shall be provided for and shall be used by all persons while employed in welding, burning or cutting operations or in chipping, cutting or grinding any material from which particles may fly, or while engaged in any other operation which may endanger the eyes.