39 Fla. L. Weekly D342a
Foreseeability — Trial court should have directed verdict for defendant where
it was undisputed that defendant lost consciousness while driving as result of
cyrptogenic seizure, defendant had never experienced seizure before this
accident, there was no evidence that she had notice of being at risk for
seizure, and testimony of defendant and her passenger established that there was
insufficient time between onset of seizure and impact with plaintiff’s vehicle
for defendant to take any evasive maneuvers
COMPANY, Appellants, v. ANGELA HAYWARD, Appellee. 2nd District. Case No.
2D12-4658. Opinion filed February 12, 2014.
Pools of Florida Inc. (“Artistic Pools”), and her liability insurer, Allstate
Insurance Company (“Allstate”), appeal an adverse judgment resulting from an
automobile accident allegedly causing personal injuries to Angela
Hayward.1 Three issues were raised on
appeal; we find the first issue to be dispositive, and as a result, we do not
reach the other two. Because it is undisputed that Ms. Marcum lost consciousness
while driving due to a seizure, resulting in the accident, and because Ms.
Marcum’s loss of consciousness was unforeseeable, the trial court should have
directed a verdict for the defense. Therefore, we reverse.
was driving a company vehicle within the course and scope of her employment. Her
coworker, Charles Heninger, was riding in the passenger seat. Ms. Marcum
testified that she felt as though she momentarily blacked out, woke up briefly,
and then blacked out again. Her next recollection was after the accident when
the paramedics were present. According to Mr. Heninger, Ms. Marcum stated that
she felt as though she had blacked out, stated that she did not feel well, asked
where they were going, and then she suddenly lost consciousness. Mr. Heninger
testified that he tried to stop the vehicle by depressing the brake pedal with
his hand, but he was unable to reach it because of his seatbelt restraint. He
testified that he was down on the floorboard when he felt an impact. Mr.
Heninger estimated that at most fifteen seconds elapsed between the time Ms.
Marcum indicated that she may have blacked out and the time of impact.
Artistic Pools vehicle in her rearview mirror. When she realized that the
vehicle was not going to stop, she braced for impact, and the vehicle struck her
car from behind. Ms. Hayward testified that after she was struck, she exited her
car and walked toward the Artistic Pools vehicle, at which time she observed Ms.
Marcum having a seizure. Ms. Hayward retrieved a blanket from her car and helped
reposition Ms. Marcum so that she would not swallow her tongue.
Marcum could not have anticipated the seizure.
[Counsel:] Is there any way that Jordan Marcum should have
anticipated that this type of event was going to occur?
[Dr. Griffin:] No, sir, not to my knowledge.
[Counsel:] And if there was some sort of warning sign, is that
something you would expect a lay person to recognize as an oncoming
[Dr. Griffin:] No, sir, I couldn’t — I couldn’t tell if I were
going to have a seizure, and I see seizure [sic] every day, because sometimes
there is no warning, and if there is a warning, it can be just be as — as vague
as a weird feeling, a funny taste in your mouth. It’s just very nonspecific and
it doesn’t even need to be there.
. . . .
[Counsel:] And is it fair to describe your opinion related to the
seizure as it was one of [a] sudden and unexpected nature?
[Dr. Griffin:] Yes, sir.
Her only expert witness was an orthopedic surgeon who provided testimony about
her injuries. In response to Ms. Marcum’s defense, Ms. Hayward argued that the
episode was neither sudden nor unexpected. Ms. Hayward argued that when Ms.
Marcum described a “funny feeling” prior to blacking out, she was experiencing
what is known in neurologic terms as an “aura” which should have alerted her to
pull over. Dr. Griffin explained that “[i]f a person feels an aura that they
recognize is their epileptic aura . . . they can, you know, sit down in a safe
place.” However, Ms. Marcum testified that she had never experienced a seizure
prior to the one that resulted in the accident.
that there was insufficient time between the onset of the seizure and the
collision for her to take preventative action. Accordingly, she moved for a
directed verdict. After hearing argument, the trial court denied Ms. Marcum’s
motion, ruling that factual questions remained for jury determination as to
whether Ms. Marcum could have avoided the impact.
directed verdict is de novo. Fell v. Carlin, 6 So. 3d 119, 120 (Fla. 2d
DCA 2009). Here, we must determine if there is sufficient record evidence when
viewed in the light most favorable to Ms. Hayward to permit the jury to decide
if Ms. Marcum was negligent or if Ms. Marcum’s sudden loss of consciousness
defense required the verdict to be directed in her favor. See id.
(quoting Sims v. Cristinzio, 898 So. 2d 1004, 1005 (Fla. 2d DCA 2005)).
a motor vehicle who, while driving, suffers a sudden loss of consciousness from
an unforeseen cause.” Tropical Exterminators, Inc. v. Murray, 171 So. 2d
432, 433 (Fla. 2d DCA 1965); see also Bridges v. Speer, 79 So. 2d
679, 681 (Fla. 1955) (“It is not even simple negligence if one has a sudden
attack, loses control of his car and causes an accident if he had no premonition
or warning.”); Feagle v. Purvis, 891 So. 2d 1096, 1098-99 (Fla. 5th DCA
2004) (“As 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.”).
To establish this defense, a defendant is required to prove the following:
1. 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[, 828] (Fla. 5th DCA
2. The loss of consciousness or capacity occurred before the
defendant’s purportedly negligent conduct. See Malcolm v. Patrick,
147 So. 2d 188, 193 (Fla. 2d DCA 1962).
3. The loss of consciousness was sudden. See, e.g., Baker
v. Hausman, 68 So. 2d 572, 573 (Fla. 1953); Malcolm[, 147 So. 2d at
4. The loss of consciousness or capacity was neither foreseen, nor
foreseeable. See, e.g., Baker[, 68 So. 2d at 573]; Wilson[,
844 So. 2d at 828]; Wingate [v. United Servs. Auto. Ass’n., 480
So. 2d 665, 666 (Fla. 5th DCA 1985)]; Malcolm[, 147 So. 2d at
Marcum lost consciousness while driving as a result of a cryptogenic seizure.
Her testimony, along with that of Mr. Heninger, established that she lost
consciousness before the impact occurred. Further, she had never experienced a
seizure before this incident, and there was no evidence that she had notice of
being at risk for a seizure. Dr. Griffin testified that Ms. Marcum would have
had no way to anticipate the onset of the cryptogenic seizure. Finally, the
testimony of Ms. Marcum and Mr. Heninger established that there was insufficient
time between the onset of the seizure and the impact with Ms. Hayward’s vehicle
for her to take any evasive maneuvers.
of consciousness of a defendant . . . .” Feagle, 891 So. 2d at 1099. The
fact that Ms. Marcum indicated to Mr. Heninger that she did not feel well, a
sensation she later described as a “funny feeling,” shortly before losing
consciousness, resulting in the accident, did not show that the impending
seizure was foreseen. See Baker, 68 So. 2d at 573 (holding that a
showing that the driver was not feeling well shortly before the accident did not
demonstrate a premonition of a stroke); Wingate, 480 So. 2d at 666
(holding that driver’s statement made shortly before the accident that he was
not feeling well did not demonstrate a premonition of a heart attack).
judgment be entered in favor of Ms. Marcum, Artistic Pools, and Allstate.
1On August 23, 2012, the trial court
rendered an order granting Ms. Hayward’s motion to join Allstate as a party
defendant to the final judgment pursuant to section 627.4136(4), Florida
* * *