Marcum v. Hayward: Liability for Unconscious Drivers in Florida

photo_1137_20060220Although a driver having an unanticipated seizure and slamming her vehicle into the vehicle of someone else sounds more like a TV drama than the facts of an actual case, the facts underlying the Second District Court of Appeal’s recent decision in Marcum v. Hayward show that situations that sound imaginary can indeed happen in reality.

The Marcum litigation was set into motion by a motor vehicle accident in Central Florida. One of the defendants in the case was driving a vehicle owned by her employer, Artistic Pools of Florida, Inc., and testified that while she was driving she felt she had temporarily lost consciousness, regained it, and then lost it again before she saw paramedics. A fellow employee riding in the car similarly testified that the driver stated she felt she had lost consciousness and that she didn’t feel well. Apparently, she had asked her passenger where they were headed and soon thereafter lost consciousness. The coworker also testified that after the driver lost consciousness he tried to use his hand to engage the brake but was prevented by the seat belt from doing so. After the driver lost consciousness, the vehicle collided with the vehicle of the victim, who said that she found the defendant suffering from a seizure when she walked to her car after the crash. Following the accident, the victim brought suit against the driver, Artistic Pools, and the driver’s auto liability insurer, asserting claims of negligence.  The driver moved for a directed verdict, arguing that she could not be found negligent because she had suffered a sudden, unforeseeable seizure, and the time between the onset of this seizure and the crash was insufficient for preventative measures to be taken. The trial court denied the motion for a directed verdict.

As one would expect, the law generally does not consider a person negligent when he or she commits a damaging act without volition. Accordingly, “[a]s a general rule, the operator of an automobile, vessel or other mode of transportation who unexpectedly loses consciousness or becomes incapacitated is not chargeable with negligence as a result of his or her loss of control.” Feagle v. Purvis, 891 So.2d 1096, 1098-99 (Fla. 5th DCA 2004). To establish this defense to liability, a defendant must prove that he or she experienced a sudden, unforeseen, and unforeseeable loss of consciousness or capacity, and that this event occurred before his or her allegedly careless conduct. Feagle, 891 So.2d at 1099 (internal citations omitted).

In this case, the focus of the inquiry was on the fourth prong of the defense. The defendant submitted expert testimony from a board-certified neurologist who testified that the defendant could not have anticipated the seizure, which was defined as “cryptogenic,” meaning it lacked any known cause. The plaintiff did not rebut this evidence with expert testimony but rather argued that the defense was inadequate because the defendant should have stopped her car prior to the seizure when she first described having a funny feeling and temporarily blacking out. These feelings, which often signal an impending seizure, are commonly described as an “aura.” In response, the defendant argued that she did not have a history of seizures and thus was not aware that such a feeling was symptomatic of an impending seizure. The Second District accepted the defendant’s depiction of the situation. With respect to the foreseeability of this seizure, the court found that the defendant’s description of “aura” sensations was insufficient to show that the seizure was foreseen or foreseeable. This is consistent with preexisting precedent holding that feelings of sickness before the start of a incapacitating event do not make it foreseeable unless one had previously suffered from those sensations and therefore would understand their connection to the ensuing incapacity. See, e.g., Baker v. Hausman, 68 So.2d 572, 573 (Fla.1953); Wingate v. United Servs. Auto. Ass’n., 480 So.2d 665, 666 (Fla. 5th DCA 1985). Accordingly, the Second District held that the motion for a directed verdict should have been granted, since the defendant could not be deemed negligent under clearly established Florida law.

Although a genuine, unforeseen loss of consciousness does not lead to negligence liability, many cases involving strokes or other incapacitating events are indeed foreseeable when one considers an individual’s history of suffering from the specific condition or the amount of time between the onset of symptoms and the start of the incapacity. Accordingly, you should always make sure to thoroughly review a driver’s medical history and prior experience with symptoms if you have been in an accident with a person who was allegedly suffering from a loss of consciousness. The South Florida motor vehicle collision attorneys at Frankl & Kominsky have experience with this sort of due diligence and case investigation and can assist you with possible claims. Contact us if you would like a free case evaluation.

 Related Posts:

Supreme Court of Florida Answers Certified Question Regarding Dangerous Instrumentality Doctrine

Fourth District Court of Appeal Reverses Trial Court in Broward Auto-Accident Appeal

Fourth District Court of Appeal Holds That Prior Jury Determination is Binding in Uninsured Motorist Case