Updated on April 18th, 2023

What is eggshell plaintiff theory?

The Eggshell Skull doctrine is a common law rule that makes a negligent defendant liable for a plaintiff’s unforeseeable injury because of the plaintiff’s preexisting fragile health condition.

Author: Brad Nakase, Attorney

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An eggshell plaintiff: People unusually susceptible to injury

A person who commits a wrongful act that injures another person will be responsible for the injury to that person, even if a normal person would not have been injured.  For example, a person with cerebral palsy may sustain more severe injury from a fall than a normal person. The liable person is not released from legal responsibility if you are more susceptible to further injury.

You, the highly susceptible injured plaintiff, are known as an “eggshell plaintiff”; the term relates to all parts of the law, whether intentional, negligent, criminal, or liability. This eggshell doctrine protects you from a preexisting condition that increases your risk of injury.

A defendant cannot use a preexisting condition as a crutch to escape legal liability. Your lawyer’s job is to convince the jury that any further injury to your preexisting condition is the defendant’s fault.

The elements that a plaintiff must prove to win a negligence suit are 1) defendant had a duty of care, 2) defendant breached his duty of care, 3) defendant’s breach of duty caused plaintiff’s harm, and 4) plaintiff was harmed and damaged. The plaintiff must show that the defendant was the cause or at least a contributing factor in your injury. Your attorney must use your preexisting condition as justification that the defendant made you more susceptible to harm or injury through wrongful conduct. Any condition or injury you may have had prior must be disclosed in full and explained thoroughly.

Your lawyer may use their opening statement to explain your preexisting conditions. The opening statement is ideal for your attorney to disclose your health and justify it before the defendant can use it against you.

If your preexisting condition is mental, your lawyer must determine if any new psychological distress developed naturally or from the defendant’s wrongful actions.

What is the role of experts?

In these cases, experts will be essential to ensure you get the compensation you deserve. Experts will accurately explain the difference between the injury that occurred at work versus the preexisting condition. The experts that represent you can vary from doctors to psychiatrists or psychologists. Any expert should review all documents on you and the incident to be knowledgeable when taking the stand.

Experts can also assist in determining any possible factors that may have caused or contributed to the preexisting condition. The experts in an eggshell case, in particular, should be used primarily to explain and distinguish the critical information to differentiate the preexisting condition and the current injury.

A comprehensive investigation must occur to gather all facts since you, as the plaintiff, may not voluntarily reveal all the information. This investigation will help determine the amount of damage you have suffered.

Instructions from the Jury

Jury instructions are instructions given to the jurors to use as a guideline for making decisions. These instructions can be used to justify to the jury that the defendant is the one responsible for the wrongful conduct and that they must be held accountable.

In CACI, two types of jury instructions are important to you as a plaintiff with a preexisting injury. The first of these instructions is CACI 3927, which states that in the case of a plaintiff with a preexisting condition, the defendant must be held liable if their behavior aggravated the plaintiff’s preexisting condition. For example, if you had either a physical or emotional condition made worse by the defendant’s actions, you will be awarded the proper compensation for your distress.

The second of these instructions is CACI 3928, which addresses an unusually susceptible plaintiff. CACI 3928 states that although you, the eggshell plaintiff, may have been more distressed than a healthy person, you must still receive fair compensation for the damage caused. Your team must agree on fair and reasonable compensation for the damages done to you even though you were more susceptible.

The two jury instructions discussed are essential to your case and should always be provided when involving an eggshell case. They allow an eggshell plaintiff to be treated fairly in the jury’s eyes and receive the proper compensation for their injuries.

Hypothetical preexisting conditions

Possible Preexisting Physical Conditions:

  1. You, the plaintiff, are driving a work truck (diesel, tow truck, etc.) in clear and sunny weather. Before the incident, you drove in the same lane for four or five blocks. However, when you approached a stoplight, there were lanes from the defendant’s transit lines in which your back tire got stuck. When the light turns green, you cannot move and are hit by the streetcar riding the transit line. From this incident, you suffer severe injuries, but it also makes a preexisting back injury much worse.

  2. You were working as a construction worker years ago when a piece of metal fell on you, causing a severe back injury. However, upon a doctor’s examination, it was determined that you also had a preexisting back injury made worse by this incident. This preexisting injury made you more susceptible to further injury and was aggravated by an accident at the construction site.

Possible Preexisting Mental Conditions:

  1. A young girl and her sister play out in the front yard when a neighbor’s dog attacks them. The attack causes severe physical harm to the girls and mental scarring and damage. Because of this, the court finds that one girl needs further treatment with a psychologist and psychiatrist. Although she had preexisting mental conditions due to her home life, she was granted compensation for the psychiatric treatment by the court.

  2. A lifeguard at a summer camp has mental conditions due to previous sexual abuse. Her boss keeps making sexual jokes in front of her, to which she responds by expressing her discomfort. However, he tells her she needs to take a joke and continues to make inappropriate remarks. He also comments about the lifeguard and her body and continues to do so throughout the summer. Towards the end of the summer, the lifeguard’s boss attempts to commit a sexual act with the lifeguard, to which the lifeguard responds by leaving. Because she was victimized again by sexual assault, her preexisting mental conditions, such as depression and anxiety, were aggravated. The jury, in turn, rewarded her compensation because the boss worsened her preexisting conditions.


Negligent conduct can worsen or aggravate a plaintiff’s preexisting condition, referred to as an ‘eggshell’ case. Jurors usually understand that even though you may have had preexisting health conditions, the defendant does not have the right to aggravate these conditions without taking liability. A good lawyer representing you will make clear in court that the preexisting condition is separate from the current injury or that the defendant’s behavior aggravated it.

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