Marcum v. Hayward
| Decision Date | 07 April 2014 |
| Docket Number | No. 2D12–4658.,2D12–4658. |
| Citation | 136 So.3d 695 |
| Parties | Jordan K. MARCUM; Artistic Pools of Florida Inc.; and Allstate Insurance Company, Appellants, v. Angela HAYWARD, Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Mark D. Tinker and Charles W. Hall of Banker Lopez Gassler P.A., St. Petersburg, for Appellants.
Erin E. Pogue and Roy D. Wasson of Wasson & Associates, Chartered, Miami; and Paul J. Puzzanghera and Crystal L. Turner of Paul Puzzanghera, P.A., Clearwater, for Appellee.
Jordan Marcum, her vicariously-liable employer, Artistic 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.
On the day of the accident, Ms. Marcum, assistant manager of Artistic Pools, 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.
Ms. Hayward testified that she was stopped at a red light and saw the 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.
Doctor Denise Griffin, a board certified neurologist, testified that Ms. 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 seizure?
[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.
Dr. Griffin defined the seizure as “cryptogenic,” which by definition has no known cause.
Ms. Hayward did not offer opposing expert testimony regarding the seizure. 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.
Ms. Marcum argued that she experienced a sudden and unexpected seizure and 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.
The standard of review on appeal of a trial court's ruling on a motion for 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)).
“It is well settled that negligence is not chargeable against the operator of 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) (); Feagle v. Purvis, 891 So.2d 1096, 1098–99 (Fla. 5th DCA 2004) (). 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...
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Hernandez v. Mishali
...that a reasonable jury could have rendered a verdict for the plaintiffs. Fridman, 185 So. 3d at 1227.Mishali relies on Marcum v. Hayward, 136 So. 3d 695 (Fla. 2d DCA 2014), a case that is similar to the present case but clearly distinguishable. There, the evidence undisputedly and conclusiv......