June 23, 2009
By: David K. Jaffe
Taking the Victim as you Find Him
A defendant who has caused damages in a tort is liable for those injuries proximately caused. However, the tortfeasor "takes the victim as he finds him." What this means is that if the plaintiff has pre-existing condition of health at the time of the accident that results in damages more serious and costly than they otherwise would have been, the plaintiff may recover those full damages. See Flood v. Smith, 126 Conn. 644, 647 (1940).
The eggshell plaintiff doctrine states that where a tort is committed, and injury may reasonably be anticipated, the wrongdoer is liable for the proximate results of that injury, although the consequences are more serious than they would have been, had the injured person been in perfect health. See Iazzetta v. Nevas, 105 Conn. App. 591 (2008). The eggshell plaintiff doctrine is not a mechanism to shift the burden of proof to the defendant; rather, it makes the defendant responsible for all damages that the defendant legally caused even if the plaintiff was more susceptible to injury because of a preexisting condition or injury. Under this doctrine, the eggshell plaintiff still has to prove the nature and probable duration of the injuries sustained. See Rowe v. Munye, 702 N.W.2d 729, 741 (2005).
See also W. Prosser & W. Keeton, Torts (5 th Ed. 1984) § 43, p. 292.
*Note that the plaintiff must plead and prove pre-existing susceptibility and disclose an expert on this issue.
Although the plaintiff may not recover for the pre-existing condition itself, the plaintiff is entitled to recover the portion of damages for the pain and suffering attributable to the aggravation of the pre-existing injury. (See sample Jury Charges in footnotes.)
In Tuite v. Stop & Shop Cos., 45 Conn. App. 305 (1997), the appellate court clarified the distinction between a pre-existing disability and pre-existing condition. "Generally, a plaintiff with a pre-existing condition who was subsequently injured is entitled to full recovery. A plaintiff who suffers from a pre-existing disability that is made worse by an injury, however, can recover only to the extent of the aggravation of the injury." n132.2 Therefore, "a plaintiff who has a dormant, asymptomatic arthritic condition that is subsequently aggravated by an injury caused by the defendant's negligence is entitled to recover full compensation for the resulting disability, even though her resulting disability is greater than if she had not suffered from the arthritic condition."
 Plaintiff's Request to Charge (Activation / Aggravation of Pre-existing Condition
It is undisputed that the plaintiff was suffering from degenerative arthritis of the spine at the time of this automobile accident. That being said, plaintiff is entitled to recover full compensation for all damage proximately caused by the negligence of either or both defendants even though his injuries may be more serious than they would otherwise have been because of his preexisting condition.
If you find that the negligence of either or both defendants was a substantial factor in lighting up the plaintiff's preexisting degenerative arthritis of the spine so that it became aggravated, painful and disabling, he is entitled to damages to the extent that you find his condition was so aggravated by the defendant's wrongful conduct.
Plaintiff's Request to Charge- Taking Victim as you find him
a. [The Plaintiff] is entitled to recover full and complete compensation for all of his injuries and damage, and the effects caused by or proximately resulting from the Defendant's neglect. This is so even though his injuries and the effects thereof were more severe and serious and were prolonged permanently or longer than they would otherwise have been because of his pre-existing condition of health at the time of the accident. There has been testimony in this case to the effect that [the Plaintiff] had a prior spine condition which was aggravated or lighted up by this accident and which ultimately caused him a greater disability.
b. In other words, the Defendant takes [ ] as they find him. The Defendant is chargeable with all the results of the injuries proximately caused by their neglect or flowing from their negligence, and the Defendant cannot now excuse these results by saying that [ ] had a pre-existing condition which would make him suffer more and longer or cause him to be more severely injured.
Flood v. Smith, 126 Conn. 644, 647 (1940)
Wright, Fitzgerald & Ankerman, Conn. Law of Torts (3 rd Ed.) § 171(a).