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

Witt & Tani, TCPI 7. Proximate Cause
Smith v. Brain Leech & Co., [1962] Q.B. 405.
Judge Henry Friendly reached a slightly different conclusion when faced with a similar
vulnerable plaintiff case. In Steinhauser v. Hertz Corp., the plaintiff was injured in a car accident.
Shortly after the accident, she became schizophrenic. At trial, the expert testimony indicated that
while the plaintiff had pre-psychotic tendencies before the accident, the accident was the
triggering event that pushed her into full-blown schizophrenia. Judge Friendly held that while the
plaintiffs were allowed to recover based on a triggering event theory of causation, that argument
would in fact affect the damages they could receive. He wrote, “if a defendant ‘succeeds in
establishing that the plaintiff’s pre-existing condition was bound to worsen an appropriate
discount should be made for the damages that would have been suffered even in the absence of
the defendant’s negligence.’” Steinhauser v. Hertz Corp., 421 F.2d 1169, 1173–74 (2d Cir. 1970).
If we agree that eggshell skull plaintiffs should be able to recover, what is the appropriate
measure of damages? Should courts attempt to calculate the probability that some other event
might have triggered the plaintiff’s underlying vulnerability? Over what time horizon should the
court run this calculation?
4. Eggshell Property Revisited. Does the decision in Wagon Mound I cut against the
applicability of the eggshell plaintiff rule to property damages? At least in cases with two
different “types” of property damage? One commentator thought the decision in Wagon Mound I
might prompt a narrower eggshell plaintiff rule:
Whether the special sensitivity rule must be discarded since The Wagon Mound, or
whether it survives that decision, will have to be judicially determined. If it survives,
what are its limits? Is it a rule relating only to special sensitivity of the person, or does it
extend to special sensitivity of property? . . .
It seems obvious that . . . the thin skull rule must either be denied or carefully restricted.
The most obvious way of restricting it would be to confine it to injury to the person . . . .
Glanville Williams, The Risk Principle,77 L. Q. REV. 179, 194-95 (1961). Note that the
Steinhauser decision suggests that there may be limits on the eggshell plaintiff rule in personal
injury cases, too, at least where the injuries in question are sufficiently unusual.
5. The “harm within the risk” test. Imagine that an exterminator leaves a container of rat
poison unlabeled near a stove. Imagine further that it was wrongful or negligent to have done so
because the poison might find its way into food. Then, when the stove is lit, the container of rat
poison explodes. Is the defendant liable for the burns suffered by the chef? See Larrimore v.
American National Ins. Co., 89 P.2d 340 (Okla. 1939). The conventional answer is no: the
negligence in question inhered in the risk of poisoning, not the risk of exploding.
One way to explain this is to say that the harm of which the plaintiff complains must be
within the risk the defendant’s wrongful conduct produced. Indeed, for a century leading jurists
have offered this “harm within the risk” principle as a way to explain the limits of liability. See
Joseph Bingham, Some Suggestions Concerning “Legal Cause” at Common Law (Pt. 1), 9
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