When Driving Through Somebody’s Living Room Is Not Negligence
Every day in America vehicles leave the roadway, travel across well-manicured lawns, smash through garden sheds, patio furniture, swing sets, and plow through the walls of a home, coming to rest inside of somebody’s living room or bedroom. These incidents leave millions of dollars in property damage, injuries, and even death in their wake. One would think that such a crash would be a classic example of negligence, allowing aggrieved parties (including injured persons and subrogating insurance companies) to recover from the at-fault driver. To the chagrin and surprise of those who suddenly find themselves with an automobile where their kitchen table used to be, such is not always the case. Many states provide those who lose control and drive into homes, buildings, and other vehicles with a defense to claims of negligence known as “Act of God” or “sudden medical emergency.” As a result, holding such drivers liable for the damage they cause isn’t always easy.
Drivers have a duty to exercise ordinary, reasonable, or due care in the operation of their vehicles. Drivers often blame collisions with stationary objects on medical complications, including heart attacks, diabetic episodes, seizures, strokes, severe sneezing, cramps, reaction to medicines, mental delusions, or an undiagnosed loss of consciousness known as syncope. Such sudden loss of consciousness has become a viable defense to negligence actions, whether it actually occurred or not. In some cases, they fall under the well-established Act of God defense — an inevitable accident which could not have been prevented by human care, caution, or foresight. An Act of God usually involves violence of nature, such as severe weather conditions, but can also extend to syncopal episodes while driving a vehicle. In other states, the onset of a sudden medical condition may qualify as a “sudden emergency” defense — an emergency which is not of the defendant’s own making, and to which he or she responded as a normally prudent person would have under such emergency conditions.
Such defenses may fail if the defendant driver was medically advised not to drive, had experienced similar episodes before, or was aware that he or she felt ill while driving but continued driving because he or she was late or did not have far to travel. If a severe cramp caused the crash, previous recent episodes of such cramps might negate such defenses. Under such circumstances, the emergency might be considered to be of the defendant driver’s own making. If it can be established that the driver had experienced similar medical episodes before or had forewarning of the onset of the condition and drove despite the foreseeable risks, negligence can be established. The goal is to convince a jury that the episode was neither unforeseen nor preventable. However, this is easier said than done. It requires obtaining medical releases, obtaining confidential medical records, and/or discussing private medical information with the driver’s physician. This usually cannot be accomplished without filing a lawsuit.
For a plaintiff or subrogated insurance company, it is also important to defeat the allegation that loss of consciousness caused the accident, when in fact, it may have resulted from it. Elderly drivers often mistake the accelerator for the brake or become panicked and react poorly in pressure situations. What may at first appear to be an unforeseen syncopal event could, in fact, have been avoidable, as in the case of a driver with a history of such events who should have known it was unsafe to be driving. In other cases, a defendant may lose consciousness as a result of a collision, rather than the collision being caused by a loss of consciousness. Investigation, discovery, and a review of the defendant’s medical history may be in order to determine the truth.
Heart attacks and strokes are easy to establish. However, syncope is a short loss of consciousness or fainting characterized by a fast onset, short duration, and spontaneous recovery. It is sometimes caused by a decrease in blood flow to the entire brain, usually from low blood pressure. Its cause often eludes the medical professional despite extensive efforts to make a definitive diagnosis. This makes it unclear to a doctor which patients need a rapid in-patient work-up and which can be safely discharged for out-patient evaluation. Physicians find it difficult to advise patients about returning to driving after they suffer a seizure or syncopal episode due to a lack of statutory or professional guidance on the issue. Epilepsy refers to recurrent seizures which causes altered neurological function. States have varying driving restrictions in terms of seizure-free periods, varying between three and twelve months. The optimal seizure-free period is still unknown, making proof of negligence even more difficult.
Trial lawyers and subrogated insurance carriers must become familiar with both the medical guidelines surrounding driving after suffering syncopal episodes and strokes, as well as the basic law of negligence and available defenses available from state-to-state when a driver claims to have sustained a medical episode resulting in loss of control and collision with a building, or worse. Knowing which defenses are available and who has the burden of proof is imperative in order to make informed legal decisions.
While a detailed 50-state review of the law on this subject is beyond the scope of this article, a survey of the law in a few states which have developed affirmative defenses applicable in such situations will provide a good overview of how these issues are handled from state-to-state.
In Florida, suffering a medical episode, losing consciousness, or becoming incapacitated, is not in and of itself, negligence. Feagle v. Purvis, 891 So.2d 1096 (Fla. App. 2004). In Feagle, the operator of an airboat (Purvis) “slumped over” causing the boat to strike a swimmer. It was determined the airboat operator died suddenly from atherosclerotic heart disease. In order to establish the defense of sudden and unexpected loss of consciousness, the defendant must prove the following:
- The defendant suffered a loss of consciousness or capacity. See, e.g., Bridges v. Speer, 79 So.2d 679, 681 (Fla. 1955); Wilson v. The Krystal Co., 844 So.2d 827 (Fla. 5th DCA 2003).
- The loss of consciousness or capacity occurred before the defendant’s purportedly negligent conduct. Malcolm v. Patrick, 147 So.2d 188, 193 (Fla. 2nd DCA 1962).
- The loss of consciousness was sudden. Baker v. Hausman, 68 So.2d 572, 573 (Fla. 1953); Malcolm, supra.
- The loss of consciousness or capacity was neither foreseen, nor foreseeable. See, e.g., Baker, supra; Wilson, supra; Wingate v. United Servs. Auto. Ass’n., 480 So.2d 665 (Fla. 5th DCA 1986); Malcolm, supra.
Purvis had been seeing a heart specialist, Dr. Mitchell, for about five years prior to the accident, and had been diagnosed with and treated for coronary artery disease. Periodic stress tests and electrocardiograms confirmed the presence of the disease, but not the degree to which his arteries were blocked. On six occasions, over the course of years, Dr. Mitchell recommended a cardiac catheterization to be performed to determine the full extent and location of the disease. Purvis declined to allow the procedure because he was afraid of surgery. Dr. Mitchell continued to express concern about the risk of a heart attack, and the need for a cardiac catheterization. In fact, about a year before the accident, one of Dr. Mitchell’s notes read, “He understands that there is risk of myocardial infarction and is willing to take that risk.” Dr. Mitchell, however, placed no restrictions on Purvis with respect to driving a vehicle or operating his airboat.
An autopsy revealed that Purvis had suffered a heart attack in the past, but doctors were unable to say whether Purvis knew at the time of the accident that his death or a cardiac event was imminent. However, as a high-risk coronary artery disease patient, Purvis was subject to acute cardiac sudden death syndrome. Experts testified that Purvis and his physician would have had all this information if Purvis had allowed the heart catheterization to be performed. With regard to whether Purvis lost consciousness, doctors testified that it would depend largely on what kind of arrhythmia or irregular heart rhythm led to sudden cardiac death.
F.S.A. § 327.32 of the Florida statues reads as follows:
F.S.A. § 327.32. Vessel declared dangerous instrumentality; civil liability. All vessels, of whatever classification, shall be considered dangerous instrumentalities in this state, and any operator of a vessel shall, during any utilization of the vessel, exercise the highest degree of care in order to prevent injuries to others.
Accordingly, the standard of care imposed on operators of vessels by this statute is greater than the duty to use reasonable care ordinarily imposed in negligence cases. In sifting through all of this evidence, the court held that just because a person is diagnosed with heart disease, he or she need not give up the defense of sudden loss of consciousness if that person continues to drive. A refusal to take a diagnostic test does not automatically constitute negligence. They held that there were disputed issues of fact that precluded the issuance of a summary judgment and said that a jury would have to determine if Purvis’ loss of consciousness was unforeseen and unanticipated.
In Georgia, an accident produced by physical causes which are irresistible or inevitable, such as sudden death or illness, are considered to be an Act of God. O.C.G.A. § 1-3-3 (3). However, there can be no involvement of human agency. An Act of God is Georgia’s version of Wisconsin’s Sudden Illness Without Forewarning Doctrine, yet differs in that an Act of God encompasses more than just sudden illness. Georgia law has dealt with negligence and liability in regards to an unforeseeable medical condition on several occasions and has clearly distinguished the elements of what falls into this affirmative defense. In Freeman v. Martin, 156 S.E.2d 511 (Ga. App. 1968), the defendant driver claimed that he suddenly slumped over the steering wheel, simultaneously becoming unresponsive and unconscious and pressing the accelerator. The court noted:
The rule is that there is no liability for negligence or for gross negligence on the part of an operator of a motor vehicle who, while driving, is suddenly stricken by a fainting spell, or loses consciousness from some unforeseen reason. Such loss of consciousness is a complete defense to an action based upon negligence.
In Halligan v. Broun, 645 S.E.2d 581 (Ga. App. 2007), the Court of Appeals held that the defendant’s loss of consciousness that occurred prior to running a red light and hitting the plaintiff’s vehicle was an Act of God, precluding the defendant’s liability for the accident. The Halligan Court also noted that, under appropriate circumstances, it may be established as a matter of law that an Act of God is the sole proximate cause of an automobile accident, thus entitling a defendant to summary judgment on a claim that his alleged negligent operation of an automobile caused the accident. Lewis v. Smith, 517 S.E.2d 538 (Ga. App. 1999). In order to benefit from the Act of God defense, the illness that causes the driver to suddenly lose consciousness and control of the automobile must be completely unforeseeable.
Georgia, like Wisconsin, places the burden of proof on the defendant driver when he or she employs the Act of God defense. Alabama Great Southern R. Co. v. McBryar, 15 S.E.2d 563 (Ga. App. 1941). Georgia law also places an additional evidentiary responsibility on the defendant driver when moving for summary judgment on an affirmative defense basis. He may not rely upon an absence of evidence in the record in order to prevail, but must carry the burden of affirmatively proving each element of the defense. Hodge v. SADA Enterprises, 458 S.E.2d 876 (Ga. App. 1995).
Illinois also allows an Act of God affirmative defense under these circumstances. However, this defense closely mirrors Wisconsin’s Sudden Illness Without Forewarning Doctrine. Its parameters have been set out in a series of case decisions. In Wald v. Pittsburg, Cincinnati, Chicago & St. Louis R.R. Co., 44 N.E. 888 (Ill. 1896), the court said that a loss or injury is due to an Act of God when it is occasioned exclusively by natural causes that could not be prevented by human care, skill, and foresight. In McClean v. Chicago Great Western Ry. Co., 121 N.E.2d 337 (Ill. App. 1954), the defendant driver had an apparent stroke or heart attack and slumped over the steering wheel, causing the vehicle to swerve off the road killing the driver. The court interpreted previous case law with regard to an Act of God to mean any injury that is beyond the “power of human agency” to prevent. Juries in Illinois are instructed as follows:
You are instructed that an Act of God includes all misfortunes and actions arising from the inevitable necessity which human prudence could not foresee or prevent and that sudden illness, or death, rendering the driver of a motor vehicle, if unforeseeable and beyond the power of human agency to prevent, is an Act of God.
Hoggatt v. Melin, 172 N.E.2d 389 (Ill. App. 1961). In addition to an Act of God being unforeseeable or preventable, there must not be any “intervening human agency” contributing to the cause the accident. Villegas v. Kercher, 137 N.E.2d 92 (Ill. App. 1956).
A driver who experiences a sudden medical emergency cannot be negligent if the medical emergency is unforeseen. Thomas v. Hulslander, 233 A.D.2d 567 (N.Y. 1996). Regardless of the length of unconsciousness, any loss of consciousness is a complete defense against any claim of negligence if the medical emergency that caused the loss of consciousness is sudden and unforeseeable. In Hulslander, the defendant was diabetic and operating an automobile when he had a “hypoglycemic attack” that stemmed from a diabetic condition with extremely low blood sugar. The court held that summary judgment would not be appropriate because no case law supported the defense of sudden emergency regarding a diabetic because of the foreseeability of a diabetes-related complication occurring.
In Diemer v. Goad, 78 A.D.2d 752, 432 N.Y.S.2d 740 (N.Y. 3rd Dept. 1980), the defendant’s truck veered off the highway and struck a building and a post-accident autopsy revealed that the driver suffered a heart attack. The court ordered a new trial and reversed the lower court’s ruling against the defendant because “there was no evidence in the record to support the latter charge of knowledge of an impending heart attack as a basis of negligence.” The defendant also never offered evidence about the foreseeability of the heart attack. In New York, foreseeability is a major component of the law of sudden emergency. If there is no evidence stating to the contrary; it is assumed the proximate cause was unforeseeable, as shown in Diemer.
Ohio follows a “sudden illness” or “sudden medical emergency” approach much like Wisconsin. The Supreme Court case of Lehman v. Haynam, 133 N.E.2d 97 (Ohio 1958) set the standard for medical episode cases while driving. It looked to other jurisdictions to determine the rule in cases when a driver of an automobile loses consciousness and causes injury or damage. In Lehman, the defendant was driving, lost consciousness, and crossed the center line, colliding with the plaintiff. The court cited 28 A.L.R.2d 35 which reads:
By the great weight of authority, an operator of a motor vehicle who, while driving, becomes suddenly stricken by a fainting spell or loses consciousness from an unforeseen cause, and is unable to control the vehicle, is not chargeable with negligence or gross negligence…
The court noted that it would be difficult, if not impossible, for a plaintiff to prove a defendant was conscious or to prove that if he was unconscious whether the condition was foreseeable, such as sleepiness, an intoxicated condition, or an unforeseen cause. The court declared that a person may use a sudden medical emergency as a defense, if and only if it is sudden and unforeseen.
In Roman v. Estate of Gobbo, 791 N.E.2d 422 (Ohio 2003), the defendant suffered an “incapacitating heart attack”, crossed the center line, and collided with two cars, killing one and injuring four others. The court referenced Lehman and had to determine if Lehman was still the appropriate rule for sudden medical emergencies. The court concluded that Lehman is sound and there is no reason to overrule it. There is no strict liability rendering a defendant liable for the effects of an unforeseen medical emergency that causes sudden unconsciousness.
Wisconsin follows the “Illness Without Forewarning” Doctrine. It is commonly used as an affirmative defense to liability for injuries and damage resulting from the operation of an automobile when an unforeseen illness occurs. Lambrecht v. Estate of Kaczmarczyk, 623 N.W.2d 751 (Wis. 2001). When a driver, through sudden illness or loss of consciousness, commits an act or fails to exercise precaution that would otherwise constitute negligence, such act or omission is not negligence if the occurrence of such illness or loss of consciousness was not preceded by sufficient warning that a person of ordinary intelligence and prudence ought reasonably to foresee that he or she, by driving an automobile, would subject the person or property of another or of himself or herself to an unreasonable risk of injury or damage. Wisconsin allows proof of the driver’s negligence through circumstantial evidence and a presumption which arises from an evidentiary rule known as res ipsa loquitur. This is a rule of circumstantial evidence that permits a judge or jury to infer a defendant’s negligence from the mere occurrence of the event. It creates a strong inference of the defendant driver’s negligence which can be rebutted by the defendant.
The following conditions must be present before the doctrine of res ipsa loquitur is applicable: (1) the event in question must be of a kind which does not ordinarily occur in the absence of negligence; and (2) the agency of instrumentality causing the harm must have been within exclusive control of the defendant. When these two conditions are present, they give rise to a permissible inference of negligence, which the jury is free to accept or reject. It is the duty of the plaintiff to prove negligence affirmatively, and while the inferences allowed by the rule or doctrine of res ipsa loquitur constitutes such proof, it is only where the circumstances leave no room for a different presumption that the maxim applies. When it is shown that the accident might have happened as the result of one of two causes, the reason for the rule fails and it cannot be invoked. Moreover, the burden of proof to establish the affirmative defense of Sudden Illness Without Forewarning is placed on the defendant driver.
The existence of negligence in cases involving loss of consciousness or a sudden medical emergency while operating a vehicle or other machinery depend on many factors. The key, however, appears to be whether the driver has any reason to anticipate the loss of consciousness or medical condition which renders it impossible for him to control the vehicle. If the accident was preventable with the application of reasonable care, negligence exists and the operator can be held liable for the resulting injuries and damages. Although the law varies somewhat from state-to-state, it appears that most states place the burden of establishing a sudden medical emergency defense on the party asserting it. However, a good starting point for any legal research or discussion on the subject should begin with the following chart entitled “Sudden Medical Emergencies While Driving in All 50 States” which depicts the relevant law on the subject across all 50 states, which can be found HERE.
The views and opinions expressed in this article are those of the author and does not necessarily reflect the views of Matthiesen, Wickert & Lehrer S.C. or its attorneys. If you have any questions regarding this article or subrogation in general, please contact Gary Wickert at [email protected].