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Jordan K. Marcum v. Angela Hayward, No. 2D12-4658(2nd DCA)

In Marcum, the 2nd DCA reversed a judgment in favor of the plaintiff, and ruled that a directed verdict should have been entered for the defense, because the defendant driver lost consciousness while driving due to an unforeseeable seizure. The ruling turned on whether there was sufficient evidence to permit the jury to decide if the defendant driver was negligent when she had a sudden loss of consciousness. The court noted, “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.” To establish the loss of consciousness defense, a defendant must establish that (1) the defendant suffered a loss of consciousness or capacity, (2) the loss of consciousness or capacity occurred before the defendant’s purportedly negligent conduct, (3) the loss of consciousness was sudden, and (4) the loss of consciousness or capacity was neither foreseen, nor foreseeable. Notably, the defense put on an expert who testified that the defendant driver lost consciousness as a result of a cryptogenic seizure, which would not have been foreseeable to her, while the plaintiff did not put on any expert addressing the foresee ability of the seizure. The court found that the defendant met each of the elements, and reversed the judgment entered by the trial court.

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