WPI 30.18.01 Particular Susceptibility

When liability is directed or admitted, omit the first bracketed phrase.

Use this instruction when a pre-existing condition was not causing pain or disability, but rendered the injured person more susceptible to injury than a person without such condition. If the pre-existing condition was a dormant condition “lighted up” by the occurrence, use WPI 30.18 (Previous Infirm Condition).

If the pre-existing condition was painful or disabling before the event on which the claim is based, but was aggravated by the occurrence, use WPI 30.17 (Aggravation of Pre-Existing Condition).

Use the last bracketed sentence only if the evidence would support a finding that some of the resulting injury would have resulted from natural progression of the condition even without the occurrence.

Do not use this instruction as an insert in the damage instruction. It is intended as a separate explanatory instruction if the evidence warrants it.

This instruction deals with proximate cause. It does not define a separate element of damages, but it is placed here for convenience. In previous editions, the subject of particular susceptibility (in common parlance, the “eggshell plaintiff”) was included in WPI 30.18 (Previous Infirm Condition), which addresses the lighting-up of a previous infirm condition. For clarity and better comprehension, the two concepts now are set forth as separate instructions.

Conceptually, lighting-up addresses injury caused to a pre-existing condition, while susceptibility addresses injury caused by such a condition. Both principles are contained within the fundamental notion that “a tortfeasor takes his victim as he finds him, and must bear liability for the manner and degree in which his fault manifests itself on the individual physiology of the victim.” Buchalski v. Universal Marine Corp., 393 F.Supp. 246, 248 (W.D.Wash. 1975).

For additional discussion, see the Comment to WPI 30.17 (Aggravation of Pre-Existing Condition).