Lutzkovitz v. Murray
| Decision Date | 09 May 1975 |
| Citation | 93 A.L.R.3d 321,339 A.2d 64 |
| Parties | Lewis LUTZKOVITZ and Regina Lutzkovitz, Plaintiffs below, Appellants, v. George MURRAY, Defendant below, Appellee. |
| Court | United States State Supreme Court of Delaware |
Upon appeal from Superior Court. Reversed.
Walter P. McEvilly, Jr., Prickett, Ward, Burt & Sanders, Wilmington, for plaintiffs below, appellants.
Morton Richard Kimmel, Kimmel, Spiller & Bradley, Wilmington, for defendant below, appellee.
Before HERRMANN, Chief Justice, and DUFFY and McNEILLY, Justices.
This appeal arises in an automobile negligence case in which the jury's verdict was for the defendant. Plaintiffs have appealed on the ground of error in the Court's instruction to the jury and on the ground of error in the denial of plaintiffs' motion for a directed verdict.
The plaintiffs contend that the Trial Court erred in failing to apply the law to the facts in the jury charge, with respect to the issue of unavoidable accident, as requested by the plaintiffs.
There is no controversy surrounding the specifics of the accident. Plaintiff, Lewis Lutzkovitz, was driving home from work in the daytime on a clear day. At an intersection near his home he had to wait in a line of cars for the traffic light to change from red to green. While stopped, his car was struck in he rear by a car driven by defendant. Mr. Lutzkovitz was injured as a result of the collision and sought recovery for out-of-pocket expenses, lost wages, and pain and suffering; Mrs. Lutzkovitz's claim is for loss of consortium.
At trial the sole inquiry was focused on defendant's liability, there being no issue of plaintiff's contributory negligence. To expunge the inference of negligence that normally attaches to the driver of the moving vehicle in a rear-end collision case such as this, the defendant based his defense upon the contention that he unexplainably blacked-out prior to the accident and that therefore the accident was unavoidable and no culpability could be attributed to either party. The following excerpt from the Judge's instructions to the jury was addressed to that contention:
.
The Court refused to grant the plaintiffs' requested instructions on the issue of unavoidable accident which were as follows:
'The defendant contends that the accident was unavoidable and that he was not negligent by reason of a sudden, unanticipated, illness.
If you find from the evidence before you that the defendant was rendered unconscious by a sudden and unanticipated illness and that such illness was the proximate cause of the accident, then the defendant was not negligent and your verdict should be for defendant.
If you find from the evidence that defendant had had prior dizzy spells or knew or should have known that he might be subject to such occurrences, then the occurrence was not sudden or unanticipated and your verdict should be for plaintiff. You are instructed that one acting with such knowledge may be required to take more precautions under such circumstances than one not subject to such occurrences. If you find that defendant failed to act as a reasonably prudent person under the circumstances and with such knowledge, and that such failure was a proximate cause of the accident, then your verdict should be for plaintiffs and against defendant. Restatement Torts, 2d, Section 283C'.
The plaintiffs made timely objection to the charge as given. Based on the foregoing, and with no further qualifying instructions as to what constitutes 'proper care', the jury found for the defendant. Plaintiffs appeal.
Plaintiffs do not dispute defendant's contention that the proximate cause of the accident was the loss of consciousness on the part of defendant. However, the plaintiffs contend that such impairment of defendant's faculties was proven at trial to be particularly foreseeable because of the defendant's recent medical history which revealed a propensity towards vertigo. Therefore, plaintiffs assert that defendant's loss of consciousness was foreseeable, should have been guarded against and, consequently, the resultant accident was avoidable. Affirmative proof having been offered to this effect, plaintiffs contend that the Trial Court erred in limiting its instruction to the jury solely on the 'unavoidable accident' factual theory asserted by defendant, thus neglecting to instruct the jury on the law applicable to the facts elicited at trial by the plaintiffs which tended to prove that defendant's incapacity was reasonably capable of being anticipated and guarded against by defendant. We agree that...
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