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The Eggshell Rule: Your Protection from Discount Justice


The law holds wrongdoers accountable for all of the damage they cause, and the wrongdoer is required to simply accept the plaintiff as they are at the time of the injury. The Eggshell Rule (sometimes known as the “Eggshell Skull Rule”) helps accomplish that by preventing a reduction in the true damages based on a pre-existing condition or injury. It is an important doctrine in civil claims involving personal injuries.  

The eggshell rule stops defense lawyers from getting discounts on full justice just because they hurt someone who was especially vulnerable. The injustice this rule prevents can take many forms. For example, a defense lawyer may argue that a particular car crash or fall couldn’t have possibly caused the injuries (documented and obvious though they may be) because it was “low impact” or “low speed”. A defense lawyer might also argue, usually by implying rather than coming right out and saying, that the person who was injured already had injuries, so why does it matter? The idea is to blame the injured person, or to devalue their loss, by pointing out that they were already hurt before the car crash, fall, or other injury caused by the defendant.  

Source of the Eggshell Rule

The eggshell doctrine has been established by case law and is included in the State of Colorado pattern civil jury instructions (see section 6:7): “This instruction should be given when the defendant seeks to avoid or limit liability for plaintiff’s injuries by asserting that the injuries would not have occurred or would have been less severe if the plaintiff had been a normal or average person.”  

Pre-existing condition: symptomatic or asymptomatic

This doctrine also applies for survivors of accidents who have an asymptomatic or dormant pre-existing condition or a symptomatic condition that was worsened by the negligent actions of the defendant. An example of an asymptomatic condition would be a healthy pregnant woman who is rear-ended at a high rate of speed and experienced more severe injuries than a “normal” or “average” person who is not pregnant would have experienced. The liability and compensation for her injuries should be determined based on the harm actually inflicted by the wrongdoer. Under the eggshell rule, the defense lawyer’s attempt to penalize her for being pregnant and suffering more serious consequences will fail.  

An example of a symptomatic condition that was worsened would be a person who has long suffered with back pain, but has found relief in massage therapy and exercise. If this person were in an accident and their back pain worsened over their pre-accident state, the person who negligently caused the worsening would be accountable for every bit of the loss they caused. The jury would be asked to determine to what extent the pre-existing injury or condition was worsened. That worsening, and nothing more, is the responsibility of the wrongdoer to compensate.  

Of course that’s a rule!

This doctrine makes so much sense, it is almost strange that there has to be a rule. But there must be a rule, because wrongdoers and their lawyers have been seeking out and taking advantage of any way to distract and detract from the full and true damage done for as long as there have been courts. Theirs is a quest for discount justice, which is a quest for injustice. The fact that the courts must have rules to make sure jurors know that wrongdoers are responsible for the actual and true damage they caused, and that it’s not the injured person’s fault that they were hurt to the degree they were by a negligent act, is evidence of the kinds of arguments leveraged against victims of negligence who dare to seek a fair accounting of their true losses. Fortunately, Colorado courts see through this one and generally put a stop to it.  

Your specific circumstances

Each case is different and requires a unique, specialized strategy crafted by an experienced and skilled Colorado personal injury attorney. I will assess every aspect of your case and how your life has changed, and we will cut a path to justice together. Call me at 303-339-8846to discuss your individual case. You can also schedule your free consultation with me at my office, at your home, or on Zoom/Facetime/Webex byclicking here.