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Eggs, Insurance and the Judge's Charge

At the conclusion of a trial in the judge’s charge to the jury, the instruction will often be that the “defendant takes the plaintiff as he finds him”. That is an instruction that plaintiffs want. It is known as the “eggshell rule” meaning that if someone who is more susceptible to a serious injury or more susceptible to being injured in the first place, you, the defendant will be liable for that injury. (Exacerbation of an injury is a related issue but different enough to deserve a separate blog.)

I have always found the charge that “the defendant takes the plaintiff as he finds him” rather curious. It is not especially clear and cries out for clarification. Fortunately, it usually is clarified. I would prefer something along the lines of a plaintiff being entitled to be compensated in spite of having “special sensitivity”. At least that is clearer.

While on the subject of charges to a jury, I have always been amused by the following scenario. Issues pertaining to insurance are not admissible in a trial of negligence. (The exceptions are not relevant to this discussion.) Yet, in a premises liability case, invariably a judge will charge a jury along the lines that a landlord or owner of property is “not an insurer of the premises”. I have often wondered whether that causes jurors to think of insurance when the very word is verboten.

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