Roman v. Estate of Gobbo, 2002-0285.

• Citation: 99 Ohio St.3d 260,791 NE 2d 422
• Decision Date: 23 July 2003
• Docket Number: No. 2002-0285.,2002-0285.
• Parties: ROMAN ET AL, APPELLANTS, v. ESTATE OF GOBBO, APPELLEE.
• Court: United States State Supreme Court of Ohio

99 Ohio St.3d 260

2003-Ohio-3655

791 NE 2d 422

2003-Ohio-3655

ROMAN ET AL, APPELLANTS, v. ESTATE OF GOBBO, APPELLEE.

No. 2002-0285.

Supreme Court of Ohio.

Submitted March 11, 2003.

Decided July 23, 2003.

Gold, Schwartz & Co., L.P.A., Gerald S. Gold, Jennifer E. Schwartz and Brian P. Downey, for appellants.

Jones, Day, Reavis & Pogue, Jeffrey S. Sutton, Michael Y. Scudder Jr., Mary Beth Young and Geoffrey M. Johnson; McNeal, Schick, Archibald & Biro Co., L.P.A., Fredric E. Kramer and Brian T. Winchester, for appellee.

Robert P. Rutter, urging reversal for amicus curiae Ohio Academy of Trial Lawyers.

Pappas & Associates and Thomas P. Pappas, urging affirmance for amicus curiae National Association of Independent Insurers.

ALICE ROBIE RESNICK, J.

{¶ 1} The issue in this appeal involves the viability of the sudden-medicalemergency defense (also known as blackout) as a complete defense to liability in motor vehicle negligence cases. For the reasons that follow, we uphold the validity of the defense by reaffirming this court's decision in Lehman v. Haynam (1956), 164 Ohio St. 595, 59 O.O. 5, 133 N.E.2d 97.

I Facts and Procedural History

{¶ 2} On March 15, 1999, an automobile driven by Nino Gobbo turned north onto West 130th Street from Brookpark Road in Cleveland, Ohio, struck a glancing blow to a vehicle, accelerated, left the right side of the roadway for a time, returned to the roadway, went off the right side of the roadway again and ran over a road sign, eventually returned to the roadway, went left of center, and collided with at least two southbound vehicles before coming to a halt. Nino Gobbo was pronounced dead after the incident, as was his wife, Frances Gobbo, a passenger in his automobile. Spencer Schaffer, who was the driver of a southbound vehicle, and Ronald Gold, a passenger in Schaffer's vehicle, were killed as a result of the accident. Injured in the accident were William Gold, who was also a passenger in Schaffer's vehicle, and Walter Roman, the driver of another southbound vehicle.

{¶ 3} Plaintiffs-appellants, Roman, William Gold, the estate of Ronald Gold, the estate of Spencer Schaffer, and relatives of the decedents, filed suit against defendant-appellee, the estate of Nino Gobbo, in the Court of Common Pleas of Cuyahoga County, alleging that Gobbo had negligently caused the injuries and deaths. In its answer, appellee denied liability, asserting the defense of "sudden medical emergency," or "blackout." Appellee claimed that Gobbo suffered an incapacitating heart attack prior to the incident and therefore was not responsible for the accident and not negligent.

{¶ 4} The trial court granted appellee's motion to bifurcate the trial, which was predicated on the defense of sudden medical emergency, and the case proceeded to jury trial on the issue of liability only. The trial was conducted according to the standards for the sudden-medical-emergency defense established by this court in Lehman. Paragraph two of the syllabus of that case held, "Where the driver of an automobile is suddenly stricken by a period of unconsciousness which he has no reason to anticipate and which renders it impossible for him to control the car he is driving, he is not chargeable with negligence as to such lack of control." Paragraph three of the syllabus of that case held, "Where in an action for injuries arising from a collision of automobiles the defense of the defendant driver is that he was suddenly stricken by a period of unconsciousness, which rendered it impossible for him to control the car he was driving and which he had no reason to anticipate or foresee, the burden of proof as to such defense rests upon such driver."

{¶ 5} In light of Lehman, there were two main questions the trial would focus on: (1) Was Gobbo stricken with a sudden medical emergency, and, if he was, at what point in the sequence of events did it occur? and (2) Should Gobbo's medical past and problems with his heart have caused him to foresee that he was likely to suffer a heart attack while driving?

{¶ 6} At trial, appellants presented several eyewitnesses to the accident and a Cleveland police officer from the city's Bureau of Traffic, Accident Investigation Unit. These witnesses told how Gobbo's automobile careered erratically on 130th Street and ultimately crashed into vehicles driven by Spencer Shaffer and Walter Roman.

{¶ 7} Appellee presented the testimony of Dr. Michael Koehler, who had been retained by appellee to review the incident. Dr. Koehler noted that the coroner's report stated that Gobbo had died of hypertensive atherosclerotic cardiovascular disease, described as a narrowing of the coronary arteries restricting blood flow to the heart, and not from trauma suffered in the accident.

{¶ 8} Dr. Koehler reviewed for the jury Gobbo's medical records, which covered his history of heart problems. He observed that Gobbo had complained to his physician several times of ongoing claudication in his legs, which is pain caused by narrowing of the arteries, brought on by walking or other leg exertion. Dr. Koehler testified that a person with narrowing of the arteries around the heart would also tend to have narrowing of other arteries, such as in the legs.

{¶ 9} Dr. Koehler offered the opinion, based on his review of Gobbo's medical records, that Gobbo's driving should not have been restricted and that Gobbo suffered sudden cardiac death that could not have been foreseen and that rendered him unconscious and unable to control his auto.

{¶ 10} Appellee also presented the testimony of James B. Crawford, an accident-reconstruction expert engaged by appellee, who described the sequence of events based on his review of police crash-investigation records, eyewitness testimony, and other information about the incident. Crawford opined that Gobbo had suffered a sudden, overwhelming heart attack just prior to striking the first vehicle in the crash sequence and that the heart attack had caused him to lose control of his vehicle. Crawford based his conclusion in part on his review of records indicating that at no time during the incident (which covered a distance of over 1,300 feet from the initial crash point to the final resting place of Gobbo's automobile) did Gobbo take any evasive action or apply his brakes.

{¶ 11} The deposition of Dr. Mohan Patel, Gobbo's physician, was read to the jury during the trial. Dr. Patel reviewed charts of Gobbo's visits with him and several other doctors over the years, detailed the medications that Gobbo had received, and explained results of tests that Gobbo had undergone. Gobbo had heart bypass surgery in 1979 and had been monitored for his heart condition since that time. Gobbo had visited physicians several times complaining of chest pain in the 1980s and 1990s and was prescribed nitroglycerin for angina in 1983.

{¶ 12} Gobbo visited Dr. Patel in February 1998 and in November 1998, four months before the accident. At those visits, although Gobbo continued to report intermittent claudication of his legs, he told Dr. Patel that he was experiencing no chest pain. Dr. Patel testified that he had never counseled Gobbo not to drive and believed that there was never any reason to do so. Dr. Patel characterized Gobbo's heart condition as stable angina, as opposed to unstable progressive angina, in which heart disease worsens over time. In Dr. Patel's opinion, there was no way the incident could have been predicted or prevented.

{¶ 13} At that point in the trial, appellee rested and moved for a directed verdict based on the sudden-medical-emergency defense. The trial court denied the motion.

{¶ 14} Dr. Frank Miller, the employee of the county coroner's office who performed the autopsy on Gobbo's body, was then called and testified about the autopsy and his findings, including the finding that Gobbo died of hypertensive atherosclerotic cardiovascular disease, described as high blood pressure combined with blockages in the blood vessels. Dr. Miller testified that there was no way to medically determine precisely when Gobbo's death occurred and also no way to determine conclusively whether Gobbo was unconscious when his auto struck the first vehicle in the crash sequence. Dr. Miller also testified that people with claudication of the legs can sometimes experience severe cramping and numbness of their legs.

{¶ 15} At the close of evidence, appellants moved the trial court for a directed verdict, arguing that the sudden-medical-emergency defense should be abolished and that the risk of loss in an accident in which the defense is invoked should be on the driver who suffered the sudden unconsciousness. The trial court denied the motion.

{¶ 16} After closing arguments, the trial judge's charge to the jury included instructions on the sudden-medical-emergency defense, instructing the jury in accordance with Lehman that the defense would be an excuse for negligence if appellee proved that Gobbo was suddenly stricken by a heart attack he could not have reasonably foreseen and that it was impossible for Gobbo to control his auto due to the heart attack. The jury was instructed to take into account the evidence of Gobbo's previous experiences that may have warned him of the likelihood of heart attack and of the dangers of driving, and was told that blackout is an affirmative defense that the defendant bears the burden of proving. See 1 Ohio Jury Instructions (2002) 132, Section 7.25 (instructions on negligence per se, excuse, foreseeability, and burden of proof regarding blackout defense).

{¶ 17} The jury returned a verdict in appellee's favor, and the trial court entered judgment on the jury's verdict. In answers to interrogatories, the jury determined (1) that appellants proved by a preponderance of the evidence that Gobbo violated a statute or ordinance, i.e., operating a vehicle without reasonable control or crossing the center line; (2) that appellee proved that Gobbo suffered a heart attack prior...