While it seems just the opposite to those outside the legal profession, those inside it know that “the defendant takes the victim as he finds him.” In more simple terms, the same accident scenario is far more likely to injure an egg already broken than a brand new one in perfect shape. Further, the jury is not likely going to take the position, “Well, the plaintiff was already in a wheelchair when the injury occurred. So she is not so much worse off now.” Only two of the more than 60 wheelchair tipovers I’ve worked on went to trial — and, on behalf of the plaintiffs, we won more than $2M; in one of them, the plaintiff seemed little worse for wear, although her articulation of her pain and suffering was difficult to sit through.
Apart from human decency, this principle would suggest that drivers, management and policy-makers would go out of their way to avoid injury to such passengers. Already common carriers in most cases, these carriers’ treatment of such passengers is sometimes held to an even higher standard of care than the “highest standard or duty of care” to which such carriers are held with respect to every passenger. Yet the opposite is true in reality. Many drivers seemed burdened by having to transport such passengers – some of it actually from bitterness since the transportation of such individuals further swallows up the miniscule “recovery” or “layover” time their schedules provide them with under almost perfect conditions. Just the same, injuring an eggshell will almost always cost the defendant more, at the damage award or settlement level, than injuring a regular passenger.
The types of victims juries feel exceptional sympathy toward is also intriguing. Some of this presumably relates to the liability and their injuries. But, for example, juries are surprisingly sympathetic to what many individuals would call “bums:” unemployed, constantly-intoxicated or high, lazy individuals living on welfare. I helped settle a recent wheel-crush accident on behalf of one such individual for $6.5M. In another case where the victim was a rich, retired attorney living in Beverly Hills, with his new trophy wife, and who had been disbarred for embezzling funds from his firm, he also received $6.5M at trial. In contrast, one memorable case where the victim was a wealthy, self-made philanthropist settled for much less, despite his suffering severe injuries. The conclusion to be drawn from all this is that juries have a radically different opinion about who comprises an “eggshell” than do legal professionals.
Finally, there is a new subclass of injury-prone passengers emerging who are not classified as eggshells, and who have few or no rights under the ADA. One class who is victimized disproportionately by certain accident or incident scenarios is obese passengers. This cannot be encouraging to defendants, since one third of our entire population is obese, and because most bus passengers are poor, and eat less nutritional food than the population at large. Their vulnerability is particularly severe in boarding and alighting incidents (a 14-inch drop to the street surface, from a transit bus or tour coach, is a genuine adventure, and climbing down the jerry-rigged running boards of a minibus conversion with a 29-inch-high floor is akin to rock climbing — in many cases without the rocks to hold onto during the descent.
The final minority — and the reason most personal injury attorneys do not take most cases — is that the victims are, quite simply, stupid. Stupid passengers do not only become involved in a disproportionate percentage of many types of accidents, but they explain them poorly as deponents and witnesses. This latter point at least gives defendant’s counsel and his/her expert a fighting chance. Regardless of whether these two subclasses of passengers deserve the status of “eggshell,” they do get injured frequently, and members of the public transportation industry have often failed to watch over them as carefully as they should have.