The term “eggshells is lawyers’ jargon for someone who is vulnerable, usually by virtue of his or her age (elderly or children) or disability. Legal principles generally hold that injuring an eggshell does not reduce one’s liability simply because he or she was “broken” to some degree to begin with. Instead, such a notion is considered almost heresy, and everyone is treated equally in the eyes of the law, at least as it is written.

In many cases involving such passengers, I have hinted that even a higher standard or duty of care should be afforded to these individuals, because of their vulnerabilities. However, our conservative legal system does not easily respond to new notions. And in this case, because most service providers are considered “common carriers” to begin with – already “held to the highest standard and duty of care” for all passengers – it seems to defy logic to create an even higher one for a subclass of them.

Vulnerability and Sympathy

While this doctrine is true, as a legal matter, it is not at all true as a practical one. This is because of the involvement of both a judge and jury in deciding cases. While only the rarest of jurors knows this, he or she is neither technically nor legally required to obey the judge’s instructions when they are sent into the back room to deliberate on liability or damages. This exception stems from a 400-year-old English common law case named Penn v. Mead, where a verdict contrary to the judge’s instructions was upheld. Even unaware of this, juries occasionally ignore a judge’s instructions, largely because of the latitude judges have in issuing them – a latitude that does not always seem, to jurors, to be fair or consistent with the facts, or because attorney shenanigans often shield the jury from learning many of them.

While I tend to respect jurors more than most attorneys do, juries do, on occasion, exercise some pretty curious latitude:

• Representing a motorized scooter occupant literally shoved off a transit bus’ lift platform at the floor level, the driver actually admitted not only pushing the passenger off the platform, but added that he shoved her so hard that he himself fell off the lift. Yet the jury ruled in favor of the defendant!
• In another case where a walker-user was abandoned, for an unreasonable period of time, in the vehicle, she eventually tried to slide out of the shotgun seat and fetch her walker from the trunk. As one might expect, she never made it, and broke her hip. This time, the jury ruled in the plaintiff’s favor on liability. However, it only awarded her $40,000 in damages – barely leaving her with anything after my and other experts’ costs were deducted from her two-thirds share of the award. My attorney lost his shirt.

I suspect there are explanations for such seemingly unjust resolutions. In the first instance, the venue was New York City, and frankly, while I have won or settled some sizable cases there (recently one where the damages awarded were several times greater than my client deserved), 10 years ago, if you remember, two commercial aircraft toppled two of the World’s tallest buildings, and as a consequence, many jurors in this venue roll their eyes at victims of slips and falls and other mishaps, caring little about what is often outrageous negligence, recklessness or indifference on the part of drivers or their management. In the second instance, the overall population was so dirt-poor – a common staple of a forever-screwed minority (Native Americans) entitled to only a sixth grade education is fried bread – that a $40,000 damage award seemed like a fair one. In contrast, last Summer I helped a 53-year-old, otherwise healthy albeit 20-beer-a-day alcoholic on welfare settle for $6.5M when a selfish bus driver ran over his leg (not likely intentionally) because she didn’t want an alcoholic on her bus. Explainable or not, verdicts and damage awards lie “all over the board.”

Prejudice and Impunity

With the exception of the first example above, juries tend to be extraordinarily sympathetic to wheelchair users. Juries are also extremely sympathetic to small children, particularly in school bus-related crossing and wheel-crush accidents. But while extraordinarily-detailed studies have shown that children below age 13, and particularly below age 10, do not have the capacity to cross streets, jurors’ hearts tend to harden when the victim becomes nine or 10 years old (as opposed to six or seven): In one case I did several years ago, an 11-year-old child was discharged at the wrong bus stop, forced to cross a busy street during rush hour, and run over by a Pest Truck. The jury ruled against the school bus contractor on liability – but held the student 97 percent responsible for it. In a state where the victim had to be less than 51% at fault, he limped away toward a life of pain, suffering, disfiguration, poverty, marginal if any employment, and almost certain celibacy. These extreme resolutions may help explain why many attorneys think so little of juries.

New Classes Of Eggshells

One of the things that has changed among accident and incident victims, but which the law has not caught up with, is the change in what comprises an eggshell. The more dramatic change I have noticed, in recent years, is the enormous percentage of accident victims who are obese. Naturally top-heavy, with poor balance, and often with severe foot- and leg-problems largely because of their weight, such individuals are vulnerable to a far greater percentage of certain types of incidents than other passengers. Because transit schedules, in particular, are often so tight that drivers lack the time to execute a broad range of safety procedures, incidents involving such individuals are becoming more and more common. Yet juries hold little sympathy for what I am beginning to feel is a new sub-class of eggshells. Of course, the prejudice toward overweight individuals in our society – even though they include a third of us – is a formidable barrier to sympathy, and many individuals and jurors alike feel that one’s obesity is his or her own fault. In many cases there is some truth to this, compared to the increasing subpopulation of dialysis patients that stems largely from poverty, ignorance and corporate corruption. Yet, because so many of these poor nutritional specimens are walker or wheelchair users, they enjoy exponentially more sympathy from jurors than do simply obese ambulatory passengers, even though the latter subclass may experience a higher percentage of incidents with respect to their percentage of our overall society.

The Last Minority

While there are certainly exceptions, one element common to most accident victims is that they are, frankly, pretty stupid. Yet while defendants’ attorneys take advantage of this reality as their principal defense strategy (and often succeed), our legal system does not recognize stupidity as a disability (cognizantly-impaired and Alzheimer’s sufferers excepted). If it did, we would have to meet some standard on an I.Q. test to obtain a common driver’s license. So this notion is politically out-of-the-question, and as such, not likely to work its way into our legal system. Yet there is no doubt in my mind that, after working on more than 400 lawsuits, many more intelligent passengers would likely have avoided the pitfalls that befell their less-intelligent counterparts. Similarly, many drivers and managers accused of acting negligently, recklessly or indifferently are also pretty stupid, and the law affords them little quarter for this either.

Fairness and Futility

In the compromise that our legal system embodies, passengers will continue to be injured because of stupid drivers and management officials. However, stupid passengers will also continue to suffer more than others. Particularly in a money-oriented rather than value-oriented society, we should not expect our legal system to change to address these realities – for example, by imposing criminal penalties on negligent drivers and management, or by increasingly blaming passengers for contributory negligence because less stupid ones would more likely have avoided or mitigated the incident, despite the defendant’s negligence. To hope or dream otherwise is futile.

Given this reality, and its inequities, we have no realistic choice but to accept it. This acceptance means that we would do well to be more aggressive in taking pro-active safety measures – hiring smarter management and drivers (which lowering insurance premiums for safer service providers would help bring about), spending more money on safety-related equipment (including retrofits of outdated equipment), and most importantly, expanding our vision of the subclass of eggshells. This latter notion includes making conscious efforts to lessen risks for both obese and stupid passengers. Measures that might effect this could include not only more reasonable schedules (buses would have time to pull to the curb and/or kneel, and not pull out before newly-boarded passengers are seated or secured), but more and better driver assistance.

Next to Sumo wrestlers and football linemen, bus drivers are close to the most obese workers in our society. So while removing ones fat you-know-what from the driver’s seat once in a blue moon might seem burdensome, such drivers should also be more sympathetic toward passengers like them – or if not, they should be taught to be. I doubt the same relationship is true with respect to stupidity, and even if it were, it would be offset largely by the training that even stupid drivers receive. Regardless, a lot of changes – more sensibly-designed stepwells, better signage, more passenger instructions and physical assistance, the elimination of side-facing seats (in transit), significantly better illumination of the passenger compartment and, again, more realistic schedules – would benefit less intelligent passengers greatly. As a bottom line, such improvements will likely cost less than the damage pay-outs that will otherwise stem from their injuries.

Keep in mind, once again, that our legal system will not cut you a break if a passenger who does something stupid becomes injured. In order for the defendant to escape liability, that passenger must usually be negligent. And it will almost certainly be easier to find negligence among policies, procedures, vehicles, equipment, management and/or drivers than it will be to find it among the things passengers are responsible for – simply getting on or off the bus. Exceptions to this rule occur mostly in only those five states – Delaware, Maryland, Virginia, North Carolina and Alabama – where a plaintiff found to be even one percent at fault leads to the dismissal of the case against any and all defendants.

Because we cannot expect our legal system to keep pace with the expansion of the “Eggshell Club,” we must “stay ahead of the curve.” As the “eggshell club” expands, so too must our efforts to safeguard them. Staying ahead of the curve is what once made us the greatest nation this planet had ever known. While doing so in transportation alone is unlikely going to return us to this status, we can certainly play our part. After all, who knows whose other excellence ours\C2 may inspire.