Foreseeability plays a part in analyzing whether a defendant is responsible and should be held accountable for a plaintiff’s injuries. In a recent case, Jordan Marcum, her employer and her liability insurer appealed an adverse judgment arising from a car accident that caused personal injuries to Angela Hayward.
The case arose because Marcum had lost consciousness while driving during a seizure. She was assistant manager of a poll company and driving the company vehicle in the course and scope of her employment. Her coworker was riding in the passenger seat.
The woman later testified that she had blacked out, woken for a moment and blacked out again. Her next memory was of the paramedics. Her coworker testified he tried to depress the brake pedal with his hand, but couldn’t reach it with his seatbelt on. Within 15 seconds, he felt the accident’s impact.
The plaintiff testified she was at a red light when she saw Marcum’s vehicle approaching in her rear view mirror. She realized the car wasn’t going to stop and braced for impact. Her car was rear-ended. She left her car and saw Marcum having a seizure. She got a blanket from her car and repositioned Marcum so she wouldn’t swallow her tongue.
At trial a neurologist testified Marcum couldn’t have anticipated the seizure. There was no warning a layperson could recognize as an oncoming seizure. She testified that if there was a warning it was as vague as a weird feeling or funny taste. She defined the seizure as “cryptogenic” which is a seizure that has no known cause.
The plaintiff didn’t offer opposing expert testimony about the seizure. She produced an orthopedic surgeon who testified as to her injuries. She argued that Ms. Marcum’s “funny feeling” before blacking out was an “aura” that should have signaled her to pull over. Marcum’s neurologist expert had explained that if people feel an aura that they recognize as an epileptic aura, they could sit in a safe place.
Marcum had never experienced a seizure before, however, so she didn’t recognize the funny feeling as epileptic. She also argued that the seizure was unexpected and there wasn’t enough time to take preventative action between the onset and the crash. She moved for a directed verdict. The trial court denied that motion on the grounds that the jury could decide whether she could have avoided the impact.
The defendant appealed the ruling on the motion. The appellate court explained that a Florida plaintiff is not permitted to recover in a negligence lawsuit against a driver that suffers a sudden and unforeseeable loss of consciousness while driving. To establish this defense, a defendant can show (1) loss of consciousness, (2) that occurred before the negligent conduct, (3) that was sudden, and (4) that was not foreseen, nor foreseeable.
The appellate court ruled that this defense was successfully proven. Her expert had testified she had no way to anticipate the onset of the seizure and inadequate time to stop driving. The appellate court reversed the final judgment and sent it back to the court to enter judgment in favor of the defendants.
If you have been hurt due to another person or entity’s negligence, contact the experienced Florida personal injury attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585. We work hard to recover compensation from all possible sources for our clients.
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