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By: Jared K. Hodges
Recently, a jury from a historically conservative venue in Georgia awarded $2.7 million to a man who claims he was injured in a 4 m.p.h. rear-end collision. This unusual verdict should serve as an expensive reminder to insurance carriers, adjusters, and their counsel that not all low-speed, minor property damage incidents are alike.
Plaintiff Art Smith was 31 years-old when he was rear-ended in his Toyota Camry by John Bishop, who was driving a Ford F-150 pickup truck. Both Smith and Bishop were stopped at a traffic light in Cobb County, Georgia, when Bishop testified he “rolled into” Smith. Smith’s vehicle incurred merely $1,400 worth of damage, and he told the responding officers he was OK, before leaving the scene of the accident on his own.
The next day, however, Smith began experiencing stiffness in his neck, and he went to the emergency room. Smith underwent physical therapy and an MRI scan that revealed herniated discs in his neck, before he ultimately received cervical fusion surgery.
While Smith’s rapid spinal deterioration and treatment seems excessive given his young age, what Bishop could not have known, was Smith had undergone prior treatments for neck injuries several years before the accident. In Georgia, as in many jurisdictions, it is a tenant in torts that “a tortfeasor takes a plaintiff in whatever condition he finds him. A negligent actor must bear the risk that his liability will be increased by reason of the actual physical condition of the other toward whom his act [is] negligent.” AT Sys. Se., Inc. v. Carnes, 272 Ga. App. 671, 674, 613 S.E.2d 150 (2005). As the Smith case shows, the egg shell plaintiff is alive and well.
So many claimants and plaintiffs contend they are “egg shell plaintiffs,” it is easy for adjusters and defense counsel to become immune to these allegations, especially when there is minimal property damage, as there was in this case. Yet, insurers, adjusters, and defense counsel should remember that a tortfeasor takes a plaintiff in the condition where he finds him. If, for example, a plaintiff has a history of neck injuries that makes his neck susceptible to injury, it is possible a jury could find the defendant responsible for all subsequent neck treatments, even from an apparently minor injury-causing incident.
If you have any questions or would like more information, please contact Jared K. Hodges at [email protected].