Author: Chris Boggs

Practice the insurance profession long and you begin to hear and learn various legal liability terms ranging from the basic ideas of negligence" and torts" to more specific concepts like compensatory damages" and superseding events." Occasionally, though, we are still surprised by what the lawyers have created weird legal theories that can't possibly exist.

Well, they do; and we introduce three in the following paragraphs.

Eggshell (Thin) Skull Rule: A legal theory that holds that the tortfeasor (the wrongdoer) takes the person as they find them" and are responsible for all the injuries suffered by that person, even if those conditions predispose the person to more severe injuries than the average person. For example, when I was in high school a classmate had a form of brittle bone disease that caused him several broken arms and legs participating in activities that would have done no harm to the average teenager. In an auto accident of any severity, he could be expected to suffer injuries far beyond those of most other people. However, if I was involved in at fault in the accident with him, I would be responsible for all the injuries he suffered, regardless of the fact he has a predisposition to injury.

Crumbling Skull Rule: This legal theory is sometimes used as a defense against the Eggshell Skull Rule. In its most basic application, the theory behind this rule is that the outcome would have been the same regardless the actions of the supposed wrongdoer. The best example of this rule or theory is found in medical malpractice claims. For sake of the example, we know a patient is dying and, in an attempt to save him, the doctor attempts a radical and somewhat unorthodox procedure to save the person's life but is not successful. At autopsy the doctor's actions are ultimately found to be the proximate cause of death. The Crumbling Skull Rule would allow the doctor to avoid liability for the death. Why? Because death was a foregone conclusion and nothing the doctor did could or would have changed the result.

Cat's Paw Liability: Let me tell you a fable first. OK, so I won't tell the whole story, I'll just give you the gist of the fable, The Monkey and the Cat."

As the story goes a monkey wanted to eat some chestnuts that had been roasting in a fire, but they were still surrounded by very hot embers. Not wanting to wait, and not wanting to burn himself, he convinced the cat to reach in and pull out the chestnuts. You guessed it, the cat got burned and the monkey got what he wanted.

But how is this a legal theory? I'm glad you asked. This is an employment practices liability legal theory. Basically, Cat's Paw Liability arises when an employee or supervisor motivated by a discriminatory or retaliatory intent convinces (using questionable or wholly untrue information) another party (generally the individual's direct supervisor) to make an adverse employment decision. The direct supervisor is the person who could be burned by the action (in court), but the discriminatory party gets what he/she wanted.

I promise these legal theories will make you the center of attention at any party. In fact, I guarantee you will be invited to leave.

Last Updated: April 26, 2019