I am the egg…shell plaintiff
Posted on January 17th, 2015
Today I woke before dawn (not hard at our latitude) and got out the door so that I could re-do last week’s cut-short float (time in a sensory deprivation tank). I have been going to the same place for about a year, intermittently, depending on stress and finances, and credit these two hour periods of perfect solitude with keeping most of my sanity intact. (My picture has even been on their FB page.)
And it would be my bonus for today, a non-pH-oriented day, a way to relax before I sat down to read more of an area of law that is mostly new to me (or at least is a mysterious subset to the other side of the sort of law I used to practice): the nuances of insurance.
I went in the tank, my favorite. I closed the lid. I floated (and slept the sleep of the perfectly at peace). When the music came on, I opened the tank to get out–
–only to have the lid slam down on my head (this is a tank large enough for two people, and I am barely tall enough to be one) and knock me to my knees. I managed to push it up again and get out, then stagger into the shower, my clothes, and down the stairs. I told the people in the front, and because I was cranky because my head hurt, pointed out I’d just finished six effing months of physical therapy on my head and neck. They said the owner was around and they’d tell him. I suppose I could have stood there and waited to talk to him, but I’d just been conked on the head and wanted to go home. Also, I’d just gotten a comped session because they’d screwed up the last one, and I didn’t want to appear to be asking for anything. I was just…well…pissed but trying to be Portland nice as long as I could.
I left (in the Portland rain).
But that lawyer brain, particularly the plaintiff’s lawyer brain? It does not turn off, no matter how you want it to. I was trying to listen to NPR, but instead I was thinking:
- Last Saturday I overheard someone telling the guy using that tank that they would be getting a new lid for it this week. (They had a prior knowledge of risk of harm.)
- No one warned me the lid was faulty. (Failure to take reasonable measures to prevent harm.)
- I was a business invitee! They owed me the highest degree of care, including a duty to inspect and correct known dangers. (Duty)
- And damn but that thing slammed shut fast. (Breach)
- My neck is killing me and I have a splitting headache. (Injury)
- God, I do not want to go back to PT for another six months. So much time and pain. (Economic and non-economic damages)
- All that previous PT: would I count as an eggshell plaintiff?
- I wonder who their insurance carrier is?
- I wonder who their insurance counsel would be? It would kind of awkward if I knew them.
I’m not personally litigious (although I guess I could calendar the statute of limitations for the hell of it). I don’t actually know any lawyers who are personally litigious, although I guess they must be out there. Maybe they’re the sort who drive sportscars, wear toupees, and have eyelid tucks.
But this is a code-pleading state* and I loved drafting complaints, because it let me set the narrative. (When I was a baby lawyer I hated writing complaints, until I realized it was art. After that, I couldn’t stand to let anyone else do them.)
So the rest of the way home I drafted the complaint in my head.
Once there, I made my husband check my pupils (actually, that’s not true: I told him what happened and he interrogated me about the injury and I watched him do the “take her to the ER to be evaluated or not” calculus in his head, which I suspect was a lot like my calculus above).
When I was less discombobulated, I settled for emailing the business and saying I thought they ought to know that this had occurred, with some details, for the sake of future patrons. Also, if someone else gets hurt, well, here’s additional evidence of prior knowledge of a substantial risk of injury.
I still have a splitting headache, and I read only a fraction of what I meant to. Ah, well. It was a relaxing Saturday, just…not quite what I had in mind.
*We are also weird about interrogatories, expert discovery, and proximate cause. And we’re the state that brought you Pennoyer v. Neff!