Steve Calandrillo and Dustin E. Buehler, Eggshell Economics: A Revolutionary Approach to the Eggshell Plaintiff Rule, 74 Ohio St. L.J. 375 (2013), https://digitalcommons.law.uw.edu/faculty-articles/130
Ohio State Law Journal
economic analysis, eggshell plaintiffs rule, forseeability rule
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 by providing 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 socially optimal behavior when injurers have imperfect information about expected accident losses, and fails to account for risk aversion, moral hazard, and judgment-proof problems. Additionally, the eggshell plaintiff rule dulls victims’ incentives to take care and to self-protect.
To solve these problems, this Article proposes a revolutionary approach to eggshell liability: courts should reject the eggshell plaintiff rule and replace it with a foreseeability rule. Under this approach, tortfeasors would be liable only for the reasonably foreseeable scope of victims’ injuries. Insurance markets would then step in to compensate eggshell victims for unforeseeable losses, thereby preserving the compensatory role served by the traditional eggshell plaintiff rule without compromising optimal behavioral incentives for injurers and victims.