Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 7. Proximate Cause
3. The bounds of eggshell liability. How far in time does the eggshell skull plaintiff rule
extend? In Hannebaum v. Direnzo & Bomier, a woman slipped and fell in the defendant’s
building. Four years later, she was diagnosed with multiple sclerosis and sued the defendant
claiming that her fall was a precipitating factor of the M.S. The court held that the defendants
were entitled to argue to the jury that the plaintiff would have acquired multiple sclerosis even in
the absence of the fall, but that the plaintiff was also entitled to argue to the jury that that the fall
precipitated the onset of the disease. Hannebaum v. Direnzo & Bomier, 162 Wis. 2d 488, 493 (Ct.
App. 1991). Is there a time lag so large that such cases should not go to the jury? Is it four years,
fourteen years, or forty years?
4. Eggshell property? Should the eggshell rule apply to property damage as well as personal
injury cases? On the one hand, the logic of the personal injury cases plausibly translates to cases
of property damage. Just as defendants get the benefit of unforeseeably sturdy properties, we
might conclude that they ought to be required to pay full damages for unforeseeably delicate
properties. On the other hand, the eggshell rule sometimes shifts costs away from lowest cost
avoiders. This is true for personal injury cases, too, but in general prospective plaintiffs may be
better able to cure underlying vulnerabilities in their property than in their bodies. Moreover,
property liability is unbounded in a way that liability for personal injury is not. Damages for
destruction of, say, the tower at One World Trade Center because of some structural vulnerability
would produce damages in the billions. (It cost $4 billion to build.)
Whatever the merits of the question, the eggshell plaintiff rule has been held to apply not
only to bodies but also to property. The Third Restatement provides that “When harm to property
is of a greater magnitude or different type than might be expected because of a characteristic of
the property, the harm is within the scope of the actor’s liability.” RESTATEMENT (THIRD) OF
TORTS: LIAB. FOR PHYS. AND EMOT. HARM, § 31 cmt. d (2010). One case illustrating this principle
involved a defendant who drove his car into the plaintiff’s motel and, in so doing, dented an air
conditioning unit in such a way as to cause a gas leak and ultimately an explosion. The court held
the defendant liable for all damages resulting from the building’s having exploded and invoked
the eggshell plaintiff rule in its explanation. Colonial Inn Motor Lodge, Inc. v. Gay, 680 N.E.2d
407, 416 (Ill. App. Ct. 1997) (“[T]he evidence suggests that a building rather than a person may
have had an ‘eggshell skull.’”). The Supreme Court of New South Wales in Australia similarly
applies the eggshell rule to property, holding “there is no justification” for distinguishing between
personal injury and property damage and any such distinction would generate “immense practical
difficulty.” McColl v Dionisatos, [2002] NSWSC 276.
Applying the eggshell plaintiff rule to property opens up the prospect of radically
unforeseeable damages. Note that this problem will often be ameliorated by findings of
comparative or contributory negligence. Any skyscraper that collapses because of a negligently
dented air conditioner is likely to have been negligently maintained or constructed. At least one
commentator suggests that the thin skull rule does not apply to damage to property in part because
it tends to conflict with the doctrine of foreseeability. See P. J. Rowe, Demise of the Thin Skull
Rule, 40 MODERN L. REV. 377, 381-82 (1977). The substantial weight of the authority is to the
contrary, but one wonders. We’ll return to this question below in our discussion of the opinions
in The Wagon Mound Cases.
Is the next case simply an eggshell property case?
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