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IN THE CIRCUIT COURT, IN THE
TWELFTH JUDICIAL CIRCUIT, IN AND
FOR SARASOTA COUNTY, FLORIDA
CASE NO: 2009-CA-009756-NC (C)_/ Geo
- 8S
. “> RS
STATE FARM MUTUAL AUTOMOBILE INSURANCE 5 Sex ae
COMPANY as subrogee of PAUL D. GRAYBEAL, espe me UO
Plaintiff, SRG le OG
Vs. Se, OP B
BRANDON R. MITCHELL, an Individual, sa -* @
Defendant. HSU BP SD
/ Ss — DB
— —
os
PLAINTIFF’S MOTION FOR SUMMARY FINAL JUDGMENT. )
COMES NOW, the Plaintiff, State Farm Mutual Automobile Insurance Company a/s/o Paul D.
Graybeal, by and through the undersigned counsel, and files its Motion for Summary Final Judgment against
Defendant Brandon R. Mitchell, and would show unto this Court as follows:
1. The pleadings and affidavits, which are attached hereto and incorporated herein, show that the
Defendant negligently operated a motor vehicle such that Plaintiff's insured sustained bodily injuries, and that
said amount paid out by State Farm Mutual Automobile Insurance Company was reasonable.
2. Florida Statute 316.1925 states that any person operating a vehicle upon the streets or
highways within the state shall drive the same in a careful and prudent manner, having regard for the width,
grade, curves, corners, traffic, and all other attendant circumstances, so as not to endanger the life, limb, or
property of any person.
3. Defendant asserted as an affirmative defense sudden and unforeseeable loss of capacity and
asserts that as a matter of law negligence cannot be imputed to the Defendant. In the Answer the Defendant
also included a section entitled Preliminary Statement wherein it reads that Defendant was diagnosed with
epilepsy in 2004, prior to the motor vehicle accident in this case. The Defendant asserts in this Statement that
although under medical care and no warning he suffered an episode.
4, This issue was addressed in Malcolm yv. Patrick, 147 So. 2d 188 (Fla. 2d DCA 1962) wherein
the Court stated "where a plaintiff establishes a prima facie case of negligence, the burden of proof is cast upon
the defendant to show the sudden physical or mental incapacity and further to show that it was unanticipated
and unforseen." The Court in Bridges v. Speer, 79 So. 2d 679 (Fla. 1955) stated "where one has notice or
knowledge of the existence of a physical impairment which may come on suddenly and destroy his power to
control automobile, it is 'gross negligence’ within the meaning of automobile guest statute for such person to
operate the automobile."
5. The cases cited above clearly indicate the law in Florida with regards to epileptic seizures and
that with knowledge of Defendant's condition it was foreseeable that this type of accident and damages could
occur therefore overcoming Defendant's affirmative defenses.
ui
Ci mihnmai
41b)
6. Therefore, there is no genuine issue as to any material fact in the above-entitled cause, and
Plaintiff is entitled to a Judgment under Florida Rule of Civil Procedure 1.510.
WHEREFORE, Plaintiff moves this Honorable Court to enter a Summary Final Judgment in favor of
the Plaintiff and against the Defendant for the sums requested in the Complaint, together with court costs for
the reasons cited herein.
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished, by U.S. Mail,
to Michael T Robertson, Attorney for Defendant Brandon R. Mitchell, at 1834 Main Street Sarasota FL 34236
this Ay day of Mas Q f, - , 2012.
VANCE, LOTA
Aichigan Avenue
ocoa FL 32922
(321) 636-4861 / (800) 807-3334
Facsimile (321) 574-5902
viblawfirm@vancelotane.com
Attorneys for Plaintiff
08-0711401_59-Z381-387_JLJ2% te
*
79 So.2d 679
(Cite as: 79 So.2d 679)
Cc
Supreme Court of Florida, En Banc.
Mildred BRIDGES, Appellant,
V.
Daisy B. SPEER, as Administratrix of the Estate of
Vivian A. Speer, Deceased, Appellee.
April 20, 1955.
Rehearing Denied May 13, 1955.
Guest brought action against administratrix of
the estate of deceased driver of automobile to recover
for injuries. The Circuit Court for Seminole County,
M. B. Smith, J., entered judgment dismissing the
guest's second amended complaint, and the guest
appealed. The Supreme Court, Drew, J., held that
complaint stated a cause of action for gross negli-
gence under automobile guest statute.
Reversed.
Mathews, C. J., and Thomas, J., dissented.
West Headnotes
[1] Automobiles 48A ©°238(7)
48A Automobiles
48AV Injuries from Operation, or Use of High-
way
48AV(B) Actions
48Ak236 Pleading
48Ak238 Declaration, Complaint, or
Petition
48Ak238(7) k. Wanton or Willful
Acts or Gross Negligence. Most Cited Cases
Complaint alleging that driver operated automo-
bile at high rate of speed though her eyesight was
defective and impaired, stated a cause of action for
“sross negligence” under automobile guest statute.
F.S.A. § 320.59.
[2] Automobiles 48A ©7157
Page |
48A Automobiles
A48AV Injuries from Operation, or Use of High-
way
48AV(A) Nature and Grounds of Liability
48Ak157 k. Incompetency or Inexperience
of Operator. Most Cited Cases
If motorist, without premonition or warning, has
a sudden attack and loses control of automobile and
causes an accident, there is no negligence.
[3] Automobiles 48A ©°181(1)
48A Automobiles
48AV Injuries from Operation, or Use of High-
way
48AV(A) Nature and Grounds of Liability
48Ak181 Liability of Private Owner or
Operator to Occupant
48Ak181(1) k. Care Required and Li-
ability in General. Most Cited Cases
Where one has notice or knowledge of the exis-
tence of a physical impairment which may come on
suddenly and destroy his power to contro! automo-
bile, it is “gross negligence” within meaning of
automobile guest statute for such person to operate
the automobile. F.S.A. § 320.59.
[4] Automobiles 48A ©*~238(7)
48A Automobiles
48AV Injuries from Operation, or Use of High-
way
48AV(B) Actions
48Ak236 Pleading
48Ak238 Declaration, Complaint, or
Petition
48Ak238(7) k. Wanton or Willful
Acts or Gross Negligence. Most Cited Cases
Complaint alleging that motorist drove automo-
bile more than 60 miles an hour off paved portion of
highway and onto shoulder in attempt to pass to right
of another automobile proceeding in same direction
and proceeding lawfully and with due care to make
right turn into intersecting road, without any lawful
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.79 So.2d 679
(Cite as: 79 So.2d 679)
reason or excusable emergency, and that collision
resulted, alleged “gross negligence” within meaning
of automobile guest statute. F.S.A. § 320.59.
[5] Negligence 272 ©=213
272 Negligence
2721 Necessity and Existence of Duty
272k213 k. Foreseeability. Most Cited Cases
(Formerly 272k10)
“Simple negligence” is that course of conduct
which a reasonable and prudent man would know
might possibly result in injury to persons or property.
[6] Automobiles 48A ©=*181(1)
48A Automobiles
48AV Injuries from Operation, or Use of High-
way
A8AV(A) Nature and Grounds of Liability
48Ak181 Liability of Private Owner or
Operator to Occupant
48Ak181(1) k. Care Required and Li-
ability in General. Most Cited Cases
“Gross negligence” within meaning of automo-
bile guest statute is that course of conduct which a
reasonable and prudent man would know would
probably and most likely result in injury to persons or
property. F.S.A. § 320.59.
[7] Automobiles 48A ©*181(1)
48A Automobiles
A8AV Injuries from Operation, or Use of High-
way
48AV(A) Nature and Grounds of Liability
48Ak181 Liability of Private Owner or
Operator to Occupant
48Ak181(1) k. Care Required and Li-
ability in General. Most Cited Cases
If course of conduct is such that likelihood of in-
jury to other persons or property is known by motor-
ist to be imminent or clear and present, motorist's
negligence is “gross negligence” within meaning of
automobile guest statute. F.S.A. § 320.59.
*680 George A. Speer, Jr., Sanford, for appellant.
Page 2
J. Thomas Gurney, Orlando, for appellee.
DREW, Justice.
This appeal is from a final judgment entered in
favor of the appellee after the lower court dismissed
appellant's second amended complaint on the grounds
that it failed to state a cause of action for gross negli-
gence under the guest statute, Section 320.59
F.S.1951, F.S.A.
[1] We think the complaint sufficiently alleged
gross and wanton negligence. First, we think that
type of conduct clearly appears from the allegations
in the complaint that ‘said Daisy B. Speer did drive
and operate said Speer automobile at a high rate of
speed with her eyesight defective and impaired to the
extent that she could not drive said Speer automobile
safely at said high rate of speed she was driving, as
aforesaid, in that her eyesight was poor, her percep-
tion of distance bad to the extent that she could not
safely judge distances and in that she saw objects
double at times, all of which she well knew or had
reason to know and should have known and as the
sole proximate cause of her driving with defective
and impaired vision to the extent aforesaid, said
Daisy B. Speer did then and there drive said Speer
automobile without reducing the speed thereof off
the road to the right and into a car making a right turn
resulting in injury to plaintiff passenger.
*681 Our cases fully sustain this conclusion. In
Baker v. Hausman, Fla., 1953, 68 So.2d 572, 573, in
upholding a judgment dismissing a complaint for
failure to state a cause of action, we said, in speaking
of physical impairment in such cases, ‘in jurisdictions
where the courts have been confronted with the ques-
tion they have generally held that negligence, much
less gross negligence or wanton misconduct will not
be imputed to one who suddenly ‘blacks out’, faints
or suffers a sudden ‘attack or stroke,’ loses con-
sciousness and control of his car causing injury to
himself or his guest without premonition or warning
of his condition.’ (Italics added.) And we held in
Bryan v. Bryan, Fla., 1952, 59 So.2d 513, 514, that a
driver was not guilty of wanton misconduct when he
fell asleep at the wheel of an automobile unless he
‘knew, or should have known, that he was in no con-
dition to drive an automobile.’ (Italics added.) But in
Johnson v. State, 148 Fla. 510, 4 So.2d 671, 672
where the driver knew what his condition of stupor
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.79 So.2d 679
(Cite as: 79 So.2d 679)
was because he had just prior to the accident fallen
asleep in a place where he stopped, we observed that
the driver also knew that he was in no condition to
drive and knew that his subsequent conduct in operat-
ing the vehicle ‘endangered the lives of all people
traveling on such highway’, and we held that the
driver's conduct justified a conviction of manslaugh-
ter, and that such a defendant ‘cannot escape the re-
sponsibility by averring that he fell asleep and did not
realize that he had hit and killed an unfortunate hu-
man being who was entirely without fault.’
[2}][3] The opinion in the last cited case and the
general trend of the cases point up the fact that the
pivot upon which the question turns is knowledge of
one's unfitness to drive. It is not even simple negli-
gence if one has a sudden attack, loses control of his
car and causes an accident if he had no premonition
or warning. In such event the very foundation of neg-
ligence-knowledge and hence foreseeability-is ab-
sent. Our cases seem to hold, however, that where
one has notice or knowledge of the existence of a
physical impairment. which may come on suddenly
and destroy his power to control an automobile, it is
negligence to an extreme degree for such person to
operate such vehicle. It is a moral certainty that when
such event occurs some one, either the operator, or
his guest, or innocent bystanders or operators of other
vehicles, may be killed or injured. In this day and age
when automobiles are killing and maiming untold
thousands of people, one who operates such an in-
strument of death on a highway under such condi-
tions is simply playing Russian roulette-not alone
with his life-but also with the lives of others. In our
judgment, such conduct constitutes gross and wanton
negligence.
[4] Moreover, we think that the allegation in the
complaint that the said ‘Daisy B. Speer did drive said
Speer automobile at a rate of speed over sixty miles
per hour off the paved portion of said highway onto
the sand and grass shoulder thereof in an attempt to
pass to the rint of another automobile proceeding in
the same direction and proceeding lawfully and with
due care to make a right turn into an intersecting
road, without any lawful reason or excusable emer-
gency, and in so doing collided with said other auto-
mobile and ran violently into a ditch embankment,
whereby, as a proximate cause of the aforesaid colli-
sion, the sole proximate cause of the aforesaid gross
negligence of said Daisy B. Speer,’ the plaintiff was
Page 3
seriously injured, states negligence which is greater
than simple negligence and is conduct of the nature
condemned by the guest statute, namely conduct of a
character which is gross and wanton. We think al-
most every driver of an automobile on the public
highways attempt to pass to the right of another to
leave the paved portion of a public highway and drive
on the shoulder of the road to the right of a vehicle
going in the same direction in an attempt to pass that
vehicle was gross and wanton negligence in the ab-
sence of a lawful reason or excusable emergency. It
is the kind of conduct that even the reckless driver
would not intentionally be guilty of.
*682 [S5][6][7] From the very beginning, the
courts have encountered great difficulty in attempts
to define any clear and distinct line to separate simple
negligence from gross negligence. The difficulty is
inherent in the question itself because it relates to
different degrees of similar conduct. Perhaps no rule
can ever be devised which will definitely separate
one from the other. It is a simple matter accurately to
separate black and white objects but it is difficult, if
not impossible, accurately to separate different hues
of gray. We think the rule which would more nearly
solve the problem than any other would be one which
recognized that simple negligence is that course of
conduct which a reasonable and prudent man would
know might possibly result in injury to persons or
property whereas gross negligence is that course of
conduct which a reasonable and prudent man would
know would probably and most likely result in injury
to persons or property. To put it another way, if the
course of conduct is such that the likelihood of injury
to other persons or property is known by the actor to
be imminent or ‘clear and present’ that negligence is
gross, whereas other negligence would be simple
negligence.
This likelihood of injury to other persons is es-
tablished sufficiently to show conduct more culpable
than mere simple negligence where the defendant
drives an automobile into a highway and into the path
of oncoming traffic without first looking, Nelson _v.
McMillan, 1942, 151 Fla. 847, 10 So.2d 565; Motes
v. Crosby, Fla., 1953, 65 So.2d 478; or drives rapidly
around a curve to the left of the center of the road
where vision is obstructed failing to observe other
vehicles, Wharton v. Day, 1942, 151 Fla. 772, 10
So.2d 417; or drives along a highway at night know-
ing that he is sleepy and in a condition of stupor,
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.79 So.2d 679
(Cite as: 79 So.2d 679)
Johnson v. State, supra; or drives a car with tires
known to have been worn smooth along a slippery
highway at high speed, Shams v. Saportas, 152 Fla.
48, 10 So.2d 715, 716. In the latter case we said,
speaking through Mr. Justice Thomas, after reference
to the rate of speed, slickness of the road and
smoothness of the tires, that ‘disaster might well have
been anticipated if the driver lost control.’ (Emphasis
supplied.)
The allegations of fact in the instant case de-
scribe conduct which is clearly as culpable as that
held sufficient in the last cited cases to be gross and
wanton misconduct.
For the foregoing reasons we think the complaint
was sufficient to withstand a motion to dismiss and to
entitle the plaintiff to have her case tried by a jury.
Reversed.
TERRELL, SEBRING, HOBSON and ROBERTS,
JJ., concur.
MATHEWS, C. J., and THOMAS, J., dissent.
Fla. 1955
Bridges v. Speer
79 So.2d 679
END OF DOCUMENT
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 4e?% 5
o?
Westlaw,
147 So.2d 188
(Cite as: 147 So.2d 188)
District Court of Appeal of Florida, Second District.
Ida Ruth MALCOLM, Appellant,
V.
James R. PATRICK, Appellee.
No. 2337.
Aug. 8, 1962.
Rehearing Denied Sept. 6, 1962.
Automobile accident case. The Circuit Court for
Orange County, W. A. Pattishall, J., granted defen-
dant's motion for new trial following return of verdict
for plaintiff, and the plaintiff appealed. The District
Court of Appeal, Kanner, Acting C. J., held that re-
gardless of whether driver actually had forewarning
of illness before he blacked out and automobile ran
upon sidewalk, striking pedestrian, instruction that if
driver suffered sudden loss of consciousness he was
not negligent was required to include qualification
that he was not negligent only if he did not know and
should not in exercise of ordinary care have known
that he might suffer loss of consciousness.
Reversed.
West Headnotes
[1] Appeal and Error 30 ©*856(5)
30 Appeal and Error
30XVI Review
30XVI{A) Scope, Standards, and Extent, in
General
30k851 Theory and Grounds of Decision of
Lower Court
30k856 Grounds for Sustaining Deci-
sion Not Considered
30k856(5) k. Granting or Refusing
New Trial. Most Cited Cases
Reviewing court is limited to considering propri-
ety of ground stated in order for new trial and must
found its decision upon determination of whether or
not stated ground Is sufficient. F.S.A. § 59.07(4).
Page |
[2] Automobiles 48A ©1157
48A Automobiles
48AV Injuries from Operation, or Use of High-
way
48AV(A) Nature and Grounds of Liability
48Ak157 k. Incompetency or Inexperience
of Operator. Most Cited Cases
Neither negligence nor gross negligence is
chargeable against driver who, while driving, be-
comes suddenly stricken by fainting spell or loss of
consciousness from unforeseen cause and is unable to
control automobile.
[3] Negligence 272 <="1570
272 Negligence
272XVIII Actions
272XVIII(C) Evidence
272XVII(C)1 Burden of Proof
272k1569 Defenses and Mitigating
Circumstances
272k1570 k. In General. Most Cited
Cases
(Formerly 272k121.1(4), 272k121(1))
Negligence 272 <"1568
272 Negligence
272XVIII Actions
272XVUI(C) Evidence
272XVIII(C)1 Burden of Proof
272k1568 k. Proximate Cause. Most
Cited Cases
(Formerly 272k121.5, 272k121(5))
Where plaintiff establishes prima facie case of
negligence, defendant has burden of showing his
claimed sudden physical or mental incapacity result-
ing in such accident, and of further showing that such
incapacity was unanticipatable and unforeseen.
[4] Appeal and Error 30 ©" 1033(5)
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.147 So.2d 188
(Cite as: 147 So.2d 188)
30 Appeal and Error
30XVI Review
30X VI1(J) Harmless Error
30XVI(J)1 In General
30k1033 Errors Favorable to Party
Complaining
30k1033(5) k. Instructions in Gen-
eral. Most Cited Cases
Even if instructions erroneously placed upon
plaintiff, suing for injuries received when she was
struck by automobile, the burden of showing that
sudden incapacity to drive, which defendant claimed
was cause of accident, was unforeseen, defendant
could not complain.
[5] Automobiles 48A &°246(16)
48A Automobiles
48AV Injuries from Operation, or Use of High-
way
48AV(B) Actions
48Ak246 Instructions
48Ak246(16) k. Competency of Opera-
tor. Most Cited Cases
Regardless of whether driver actually had fore-
warning of illness before he blacked out and automo-
bile ran upon sidewalk, striking pedestrian, instruc-
tion that if driver suffered sudden loss of conscious-
ness on blackout he was not negligent was required to
include qualification that he was not negligent only if
he did not know and should not in exercise of ordi-
nary care have known that he might suffer loss of
consciousness.
*189 John A. Sutton of Sutton & Brown, Orlando,
for appellant.
William Berson of Berson, Barnes & Inman, Or-
lando, for appellee.
KANNER, Acting Chief Judge.
The negligence action from which this appeal
arises was brought by plaintiff, appellant here,
against the defendant-appellee whose automobile,
driven by his minor son, Larry, age 16, ran upon a
sidewalk and struck plaintiff from behind as she was
walking. The defense asserted was that the minor son
suffered a lapse of consciousness or blackout which
Page 2
caused him to lose control of the automobile and that
this loss of consciousness at the crucial time refuted
the charge of negligence.
Verdict in the amount of $16,720 was returned
by the jury for the plaintiff; but the trial judge, upon
reconsideration entered the appealed order setting
aside the jury verdict and granting motion for new
trial made by defendant. *! From the footnoted or-
der, it appears that the premise of the court in grant-
ing the motion was that the charge concerning loss of
consciousness was without evidentiary support and
constituted harmful error not cured by the jury
charges as a whole.
FN1. ‘CONSIDERED, ORDERED and AD-
JUDGED that the verdict herein and the
judgment entered thereon, on the 29th day of
June, 1960, be and they are hereby set aside
and vacated on the ground that the Court
erred in giving to the jury the following
Court Charge, over the Defendant's objec-
tion, to-wit:
“The fact that the defendant's automobile
left the roadway and ran up on to the side-
walk, which is admitted, is prima facie evi-
dence of negligence, that is to say, negli-
gence on its face, nothing else appearing.
This prima facie evidence, however, may be
overcome by proof of surrounding circum-
stances and conditions which will eliminate
the character of negligence from the transac-
tion.
“In this connection, the Court charges you
that a driver who suffers a sudden loss of
consciousness or blackout is not guilty of
negligence unless it is made to appear from
the preponderance of the evidence that prior
to such loss of consciousness he knew or by
the exercise of ordinary care should have
known that he might suffer a loss of con-
sciousness.
“Therefore, if you find from the evidence
that the automobile of the defendant left the
road and struck the plaintiff by reason of a
loss of consciousness by the driver it will be
your duty to return a verdict for the defen-
dant unless you find that before the accident
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.147 So.2d 188
(Cite as: 147 So.2d 188)
he knew, or by the exercise of that degree of
care required of persons of like age, intelli-
gence and experience that he might experi-
ence such a loss of consciousness.’ for the
reason that there was no evidence to serve as
a basis for the above charge and the giving
of the above charge in this cause constituted
harmful error to the rights of the defendant,
James R. Patrick, which harmful error was
not cured by the Court's Charge as a whole
to the Jury. The costs of the trial are to abide
the event of the action.’
Plaintiff urges that, under a defense of loss of
consciousness, it is necessary for the charge to com-
prehend the principle of foreseeability as an essential
part of the law by which such a defense can stand.
[1] The court is limited on the appeal to consid-
ering the propriety of the ground stated in the order
for new trial and must found its decision upon a de-
termination of whether or not the stated ground is
sufficient. Section 59.07(4), Florida Statutes, F.S.A.
See also Braddock v. Seaboard Air Line Railroad
Company, Fla.1955, 80 So.2d 662.
[2] In this country, by the great weight of author-
ity, the rule is that neither negligence nor gross neg-
ligence is chargeable *190 against the operator of a
motor vehicle who, while driving, becomes suddenly
stricken by a fainting spell or loss of consciousness
from an unforeseen cause and is unable to control the
vehicle. See Annotation, 28 A.L.R.2d 12, section 15,
page 35. Thus it is indicated that a loss of conscious-
ness while driving is a complete defense if such loss
was not foreseeable. See 5A Am.Jur., Automobiles
and Highway Traffic, Section 223, pages 365, 366.
Pronouncements have been made in Florida
concerning a sudden loss of consciousness by a vehi-
cle operator and its effect upon asserted negligence.
In Baker v. Hausman, Fla.1953, 68 So.2d 572, 573,
the Supreme Court, in speaking of physical impair-
ment as a defense in a negligence action, said that,
‘In jurisdictions where the courts have been con-
fronted with the question they have generally held
that negligence, much less gross negligence or wan-
ton misconduct will not be imputed to one who sud-
denly ‘blacks out’, faints or suffers a sudden ‘attack
or stroke,’ loses consciousness and control of his car
causing injury to himself or his guest without premo-
Page 3
nition or warning of his condition.’ The above state-
ment is quoted in the case of Bridges v. Speer,
Fla.1955, 79 So.2d 679, with the court gomg on to
indicate that by the general trend of the cases the
pivot upon which the question turns is knowledge of
one's unfitness to drive. The court then commented,
‘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. In such event
the very foundation of negligence-knowledge and
hence foreseeability-is absent. Our cases seem to
hold, however, that where one has notice or knowl-
edge of the existence of a physical impairment which
may come on suddenly and destroy his power to con-
trol an automobile, it is negligence to an extreme
degree for such person to operate such vehi-
cle.” Accord: Williams v. Frohock, Fla.App.1959,
114 So.2d 223. Hence the loss of consciousness Is a
good defense if there was no premonition or warning.
Since interpretation of the evidence is an issue
here, the testimony will be reviewed. That which
concerns the defense interposed is not in dispute. It
was given by three doctors and the minor son. We
summarize this testimony is some detail in order to
delineate more clearly the facts concerning the physi-
cal condition of defendant's son.
A Dr. Sutter, the first physician to see Larry fol-
lowing the accident, testified that Larry was not able
to tell all the details of the accident and could not tell
him what occurred between the time he was in the
road until he hit the woman, that there was a lapse of
memory by Larry for a short while when he went
onto the sidewalk. The boy's mother, he continued
without objection, had indicated that Larry had been
having some type of spells for about a year, during
which times he would stare into space and would not
answer any questions, then would shake himself and
seem to be straightened out after about two seconds.
She recalled three such attacks. Larry denied to Dr.
Sutter that he had knowledge of any attacks at all
except that he had dizzy spells off and on for at least
a year's time. Dr. Sutter arrived at a diagnosis of petit
mal epilepsy through talking with the boy himself.
Testimony of Dr. Fessenden, a psychiatrist to
whom Dr. Sutter referred Larry, was that from his
examination, he had been led to conclude that Larry
had petit mal epilepsy. He described this ailment as a
form of epileptic seizure involving a short convul-
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.147 So.2d 188
(Cite as: 147 So.2d 188)
sive sensation in which the patient loses conscious-
ness for a very short period of time, varying from
‘flash’ duration to a second or two, depending upon
the individual pattern of petit mal, sometimes with
warning and sometimes not. He related without ob-
jection the mother's account that for the past two
years, though she did not realize anything was wrong,
in speaking to Larry he would at times not answer
and shortly after would give the answer. Larry's own
version, said Dr. Fessenden, was that he had no
knowledge of having had *191 any trouble and that
he had no memory of anything between the time he
was driving along the road and the time he hit the
woman. In the opinion of that witness, the boy defi-
nitely has petit mal and had a petit mal seizure.
The deposition of a Dr. Gant set out that he was
treating Larry Patrick at the time of the deposition in
1960 and had been treating him since September,
1958, seeing him once every two or three weeks dur-
ing that time. Dr. Gant is a private medical practitio-
ner in Tennessee, with emphasis upon the area of
psychiatry. His account of Larry's report to him was
that up to the time of the accident he had not had an
attack. Dr. Gant responded under questioning that it
was probably and likely that this was Larry's first
attack, that there was nothing obtained from him
pointing to a prior history of epilepsy. The seizures
subsequent to the accident, said Dr. Gant, occurred
one or two a day or one or two a week, according to
information obtained from the boy's grandmother and
admitted by Larry.
By Larry's deposition, before the day of the ac-
cident he had not had any spell, attack, loss of con-
sciousness, or loss of memory but only a dizzy spell
now and then, nothing such as this; and he had never
before been treated by any physician for any attacks
or blackouts or spells of that nature. When questioned
as to frequency of the attacks since the accident, he
replied that he had one or two additional blackout
spells a week or as many as three or four a day but
not as heavy as ‘that one,’ that to his knowledge he
had never had any such attack preceding the automo-
bile accident. He explained his dizzy spells prior to
the time of the accident as ‘not really dizzy spells but
you know, like you would be sitting down some-
where and stand up quick and kinder get dizzy for a
minute, nothing abnormal or strange. Sometimes we
all have dizzy spells and feel kinder funny some-
times, but other than that, I had nothing.’ He ex-
Page 4
plained that there was no regularity at all but that if
he had been bending over or straining or something
like that and stood up quickly he might get a little bit
dizzy. Larry, by his testimony, was advised following
the accident not to drive an automobile, and he relin-
quished his driver's license.
We have indicated the prevailing rule in other
jurisdictions and the rule which has been enunciated
in this state. We find no case in Florida which bears
factual similarity to the instant one, but we cite three
cases from other state jurisdictions annotated in 28
A.L.R.2d 12, pages 40, 41, which, though not factu-
ally parallel, have an aspect of relationship in that
they concern dizziness and epilepsy.
The first of these cases is Soule v. Grimshaw
1934, 266 Mich. 117, 253 N.W. 237. The evidence in
that case revealed that, just before the accident, the
defendant slumped over in the automobile and be-
came unconscious. Defendant's testimony had tended
to prove he had never had a prior fainting spell, that
he was not intoxicated, and he had not suffered from
apoplexy nor epilepsy. Defendant admitted, however,
that he had felt dizzy prior to the accident and had
continued to drive on, thinking the dizziness would
wear off. The court submitted the cause to the jury
upon the question of negligence of defendant in con-
tinuing to drive with knowledge that a feeling of diz-
ziness was coming over him, and a verdict for plain-
tiff was returned. The verdict was upheld on review.
The second extra-jurisdictional case which we
cite is that of Goldman v. New York Rys. Co., 1919,
185 App.Div. 739, 173 N.Y.S. 737. In that case, a
street car motorman during a routine downtown trip
was not feeling well and experienced two periods of
dizziness. He then fainted in his cab and caused a
collision. The dizzy spells had passed away quickly.
The judgment of the lower court for defendant was
reversed for failure to submit the question of negli-
gence to the jury. The casuse was of negligence to the
jury. The cause was determined whether under those
conditions and with those warnings the motorman
*192 exercised reasonable care in continuing to run
his car.
Finally, from the Wisconsin jurisdiction comes
the case of Eleason v. Western Casualty and Surety
Co., 1948, 254 Wis. 134, 35 N.W.2d 301], wherein
one question before the court was whether or not de-
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.147 So.2d 188
(Cite as: 147 So.2d 188)
fendant was negligent in operating a truck when he
was subject to epileptic seizures. In that state, there
was a Statutory provision prohibiting the operation
of a motor vehicle by an epileptic. The trial court,
evidently because the driver did not know he had
epilepsy, held that he was not negligent. The Su-
preme Court reversed, stating that the undisputed
evidence was that the driver did know he was subject
to spells which would render him unconscious and
the fact he did not know the name of his malady was
not controlling. The evidence showing that the driver
knew he was likely at any time to become incapaci-
tated to contro] a motor vehicle, said the court, was
sufficient to render the driving of a car a negligent
act as a matter of law.
Thus, in the two above cases involving dizzi-
ness, there had been no history of any such attacks
prior to the day of the accident; and in the third case,
the defendant did not know he had epilepsy until
after the accident had occurred.
[3] Where a plaintiff establishes a prima facie
case of negligence, the burden of proof is cast upon
the defendant to show the sudden physical! or mental
incapacity and further to show that it was unantici-
patable and unforeseen. Keller v. Wonn, 1955, 140
W.Va. 860, 87 S.E.2d 453; Driver v. Brooks, 1940
176 Va. 317, 10 S.E.2d 887; Lehman v. Haynam,
1956, 164 Ohio St. 595, 133 N.E.2d 97.
[4] At this juncture, we interpolate that the part
of the charge found in the court's order dealing with
the burden of proof of this defense as previously foot-
noted in this opinion raises an uncertainty. It is not
clear whether the defendant or the plaintiff was en-
cumbered with the preponderance of the evidence
requirement, although the law imposes the burden
upon the defendant. As applied to the present case,
however, if it were assumed that the burden was on
the plaintiff, the defendant connot complain, since
that was to his advantage.
The positions of the parties concerning the dis-
puted excerpt of the trial judge's charge to the jury
are diametric. Defendant asserts that there is no foun-
dation in the evidence for an instruction whereby it
might be found that the driver in advance of the acci-
dent had notice, knowledge, or forewarning of ill-
ness. Conversely, it is the viewpoint of plaintiff that
the charge represents a proper statement of the law
Page 5
and that to sever the portion regarding premonition
would deprive her of her right to have the jury con-
sider and weigh the effect which knowledge by the
minor son of his previous dizzy spells should have
had upon his decision to operate a motor vehicle.
In appraising these antipodal views of the liti-
gants, we note that the testimony does establish that
defendant's son knew he had experienced intermittent
dizzy spells for at least one year before the accident.
It also reveals that these were characterized by such
symptoms as staring into space, ceasing to talk in the
middle of a sentence, and failing to answer questions,
followed by recovery symptoms whereby Larry
would shake himself and resume previous conversa-
tional activity. The doctors’ diagnosis of petit mal
epilepsy subsequent to the accident was largely ar-
rived at through this testimony describing the dizzy
spells and reactions which occurred prior to the acci-
dent. At least one doctor declared that he had arrived
at his diagnosis from Larry's own account. It is clear
that the previous dizzy spells as described were in-
dicative of an unusual, abnormal, and recurring con-
dition which spanned a considerable period of time.
[5] The problem here is the trial judge's holding
that there was no evidentiary basis *193 upon which
he could have given the jury charge in issue, conse-
quent upon which was his order setting aside the jury
verdict and granting motion for new trial. We have
stated the rule as being that loss of consciousness is a
good defense when there is no premonition or warn-
ing. In asserting this defense, the defendant assumes
the burden of proof. There are two essentials which
one must establish in order for the defense to be a
valid one, (1) the sudden physical or mental incapac-
ity and (2) the unanticipatable and unforeseen nature
of such incapacity. Plaintiff here was called upon
only to establish a prima facie case of negligence; it
was not incumbent upon her to prove that there had
been no forewarning but instead it was upon the de-
fendant to go forward with the proof of his defense.
When the judge charged the jury, he could not restrict
that charge to the phase of blackout to the exclusion
of the charge relating to premonition. Although the
apparent reasoning back of the court's ruling was, as
urged by the defendant, that the evidence did not
Support premontion, yet if there was to be given any
charge under the defense interposed, that charge
could not be split any more than could the defense
itself have been stripped of one of its necessary req-
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.147 So.2d 188
(Cite as: 147 So.2d 188)
uisites.
Recognizing the broad discretion accorded a
trial judge by the Cloud v. Fallis decision, Fla. 1959
110 So.2d 669, we nevertheless have there a problem
of law to be applied in the light of the undisputed
evidence. It appears to this court that from these con-
siderations, the trial judge in initially giving the
charge so as to include premonitory warning, acted
properly.
We add certain observations concerning the petit
mal form of epilepsy and its effect on one afflicted
with it as found in Gray's Attorneys' Textbook of
Medicine, Third Edition, Volume 2, section 100.01-
100.22, pages 1046-1082. These, we think, are both
illuminating and interesting with respect to the pre-
sent case. Petit mal attacks are described as being of
very short duration, with momentary unconscious-
ness during which the patient will stop whatever he is
doing until he is again conscious. Petit mal manifests
itself in a great variety of peculiarities, according to
Gray; the patient may falter or fumble, or may simply
be confused for a moment. One variety does not in-
volve complete loss of consciousness, but the patient
may hear and not be able to respond. Such condi-
tions, the text continues, may be called lapses and are
frequently described by the patient as dizzy spells.
Observers often say the patient appears to be think-
ing, his mind elsewhere. It is said that there is usually
no warning of an approaching attack, nor recollection
of the attack.
An epileptic is characterized as having the ten-
dency to belittle or hide his infirmity, wishing to be
like other people who drive cars, swim, ride bicycles,
and work with moving machinery. He is not willing
to admit the hazard that may result from his condi-
tion. He does not confide in others as to his trouble
and often does not know of it himself.
The average number of attacks suffered by one
afflicted with petit mal epilepsy is said to be 573 per
year, ranging in different individuals from less than
20 seizures annually to 20 per day. The observation is
made that without doubt automobile accidents are
caused directly by epilepsy in a far greater proportion
of cases than known, and that the petit mal victim is
more likely to be involved in an accident because of
the patient's attempt to lead a normal life. For anyone
who knows himself to be an epileptic ever to drive a
Page 6
car 1s stated to be unforgivable.
It was proper for the trial judge to give the as-
saulted charge. Consequently, he erred in ordering
new trial. The order is reversed and the cause re-
manded for reinstatement of the verdict.
Reversed.
SMITH and WHITE, JJ., concur.
Fla.App. 1962
Malcolm v. Patrick
147 So.2d 188
END OF DOCUMENT
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.IN THE CIRCUIT COURT FOR THE TWELFTH JUDICIAL CIRCUIT
a AND FOR SARASOTA COUNTY, F LORIDA
STATE FARM MUTUAL AUTOMOBILE |
_ INSURANCE CO., as subrogee of
PAUL D. GRAYBEAL BF |
a Case #: 2009-CA-9756-NC
vs. . Plaintiffs) -
BRANDON R. MITCHELL,
AN SWE AFFIRMATIVE. DEFENSES AN D DEMAND FOR JURY TRIAL,
"DEFENDANT, BRANDON R. MITCHELL, by. and through the undersigned
attomey hereby Answers the Complaint and Amendments thereto, as welll as other
affirmative relief, pursuant to Rule 1, 1 10 of the F lorida Rules of Civil Procedure, and the
Laws of the Stat of F Florida as s follows:
?P LIMINARY STATEMENT
‘That on or 1 about May 2 25 2006 the Defendant suffered, a epileptic seizure © thereby
- causing him: to ose control of his motor functions and being incapacitated while oe
“operating @ a motor vehicle. “That the Defendant was: diagnosed with enilepsy i in 2004 and - -
a | at the time of the incident mentioned above was under medical care ‘and supervision, , and.
was following all presoribed: medication and instructions regarding precautions regarding
his condition, including but not. limited t to o safely operating a . motor vehicle. ‘That o on the
date of the incident in question, ‘the Defendant did not t experience any. of the warning
VANCE» “LOTANE.
JUL 20-2009
BOOKHARDT, |,
Page | of 4
gsigns that would indicate that he would suffer a lapse in consciousness and/or contro! of
- the motor vehicle. That the attack was sudden, unforeseeable and hence the Defendant
was not negligent in the operation of the motor vehicle.
~COUNTT
1. Adnmitted for jisitonal purposes, denied : as to the amount of damages.
2. Denied.
3 Denied.
4 Denied.
5 Without knowledge th therefore denied.
6... Without inowiedge, therefore denied.
7 Denied.
AKEIRMATIV E DEFENSES"
8. FIRST AFFIRMATIVE ‘DEFENSE — The Defendant shad a - sudden and
unforeseeable loss of capacity and/or consciousness, and as a a matter of law negligence,
whether ¢ common or I BrOSs cannot be imputed to defendant.
9. “SECOND AFFIRMATIVE DEFENSE - — The Plaintift was. + negligent in the
operation 0 of the motor 1 vehicle under his control at the time of the incident complained of,
and that any inju uries. s sustained v were proximately and directly caused by the Plaintift and
that hence the Plaintiff cannot recover er damages that he is responsible.
Page 2 of 410. THIRD AFFIRMATIVE DEFENSE - That any and al damages suffered d by
Plaintiff were the result of an intervening cause, that was unforeseeable and in no way
resulted from the Defendant’s lack of due care, or related to any negligence on the part of
the Defendant in the operation and control of the motor vehicle in question.
UL F OURTH AFFIRMATIVE DEFENSE - That the economic lass rule bars any and
all claims for damages, other than for r damage to property or persona i injury.
_ WHEREFORE, DEFENDANT, BRANDON R “MITCHELL, respect
requests that the Plaintiff take nothing from the present cause of action, and that
judgment be entered i in favor of the Defendant, award Defendant costs for being required
to defend. against this action, and any and all further relief this Court deems just and
proper. |
’ DEFENDANT DEMANDS TRIAL BY JURY ON ALL ISSUES SO TRIABLE
a Page 3 of 4‘CERTIFICATE OF SERVICE
J HEREBY CERTIFY that a true copy of the foregoing has been furnished t to
Mr. Troy. Lotane; Esq.
Vance; Lotane & Bookhardt, P.A.
1980 Michigan Avenue BO Be |
Cocoa, FL 32922 — Wo eS
(X) By U. S. mail this Thursday, July 16, 2009.
MICHAELT. ROBERTSON & ASSOC. P.A.
1834 MaINSTREET
. SARASOTA, FLORIDA. 34236.
PH: 941 365- 7220 :
_. FAX: 941 365- 5540 —
ATTORNEY FOR:
Bone if ihe .
a? hy . .
, : x Sf Uf.
Preview
‘ety IN THE CIRCUIT COURT, IN THE TWELFTH JUDICIAL CIRCUIT, IN AND FOR SARASOTA COUNTY, FLORIDA CASE NO: 2009-CA-009756-NC (C)_/ Geo - 8S . “> RS STATE FARM MUTUAL AUTOMOBILE INSURANCE 5 Sex ae COMPANY as subrogee of PAUL D. GRAYBEAL, espe me UO Plaintiff, SRG le OG Vs. Se, OP B BRANDON R. MITCHELL, an Individual, sa -* @ Defendant. HSU BP SD / Ss — DB — — os PLAINTIFF’S MOTION FOR SUMMARY FINAL JUDGMENT. ) COMES NOW, the Plaintiff, State Farm Mutual Automobile Insurance Company a/s/o Paul D. Graybeal, by and through the undersigned counsel, and files its Motion for Summary Final Judgment against Defendant Brandon R. Mitchell, and would show unto this Court as follows: 1. The pleadings and affidavits, which are attached hereto and incorporated herein, show that the Defendant negligently operated a motor vehicle such that Plaintiff's insured sustained bodily injuries, and that said amount paid out by State Farm Mutual Automobile Insurance Company was reasonable. 2. Florida Statute 316.1925 states that any person operating a vehicle upon the streets or highways within the state shall drive the same in a careful and prudent manner, having regard for the width, grade, curves, corners, traffic, and all other attendant circumstances, so as not to endanger the life, limb, or property of any person. 3. Defendant asserted as an affirmative defense sudden and unforeseeable loss of capacity and asserts that as a matter of law negligence cannot be imputed to the Defendant. In the Answer the Defendant also included a section entitled Preliminary Statement wherein it reads that Defendant was diagnosed with epilepsy in 2004, prior to the motor vehicle accident in this case. The Defendant asserts in this Statement that although under medical care and no warning he suffered an episode. 4, This issue was addressed in Malcolm yv. Patrick, 147 So. 2d 188 (Fla. 2d DCA 1962) wherein the Court stated "where a plaintiff establishes a prima facie case of negligence, the burden of proof is cast upon the defendant to show the sudden physical or mental incapacity and further to show that it was unanticipated and unforseen." The Court in Bridges v. Speer, 79 So. 2d 679 (Fla. 1955) stated "where one has notice or knowledge of the existence of a physical impairment which may come on suddenly and destroy his power to control automobile, it is 'gross negligence’ within the meaning of automobile guest statute for such person to operate the automobile." 5. The cases cited above clearly indicate the law in Florida with regards to epileptic seizures and that with knowledge of Defendant's condition it was foreseeable that this type of accident and damages could occur therefore overcoming Defendant's affirmative defenses. ui Ci mihnmai 41b) 6. Therefore, there is no genuine issue as to any material fact in the above-entitled cause, and Plaintiff is entitled to a Judgment under Florida Rule of Civil Procedure 1.510. WHEREFORE, Plaintiff moves this Honorable Court to enter a Summary Final Judgment in favor of the Plaintiff and against the Defendant for the sums requested in the Complaint, together with court costs for the reasons cited herein. I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished, by U.S. Mail, to Michael T Robertson, Attorney for Defendant Brandon R. Mitchell, at 1834 Main Street Sarasota FL 34236 this Ay day of Mas Q f, - , 2012. VANCE, LOTA Aichigan Avenue ocoa FL 32922 (321) 636-4861 / (800) 807-3334 Facsimile (321) 574-5902 viblawfirm@vancelotane.com Attorneys for Plaintiff 08-0711401_59-Z381-387_JLJ2% te * 79 So.2d 679 (Cite as: 79 So.2d 679) Cc Supreme Court of Florida, En Banc. Mildred BRIDGES, Appellant, V. Daisy B. SPEER, as Administratrix of the Estate of Vivian A. Speer, Deceased, Appellee. April 20, 1955. Rehearing Denied May 13, 1955. Guest brought action against administratrix of the estate of deceased driver of automobile to recover for injuries. The Circuit Court for Seminole County, M. B. Smith, J., entered judgment dismissing the guest's second amended complaint, and the guest appealed. The Supreme Court, Drew, J., held that complaint stated a cause of action for gross negli- gence under automobile guest statute. Reversed. Mathews, C. J., and Thomas, J., dissented. West Headnotes [1] Automobiles 48A ©°238(7) 48A Automobiles 48AV Injuries from Operation, or Use of High- way 48AV(B) Actions 48Ak236 Pleading 48Ak238 Declaration, Complaint, or Petition 48Ak238(7) k. Wanton or Willful Acts or Gross Negligence. Most Cited Cases Complaint alleging that driver operated automo- bile at high rate of speed though her eyesight was defective and impaired, stated a cause of action for “sross negligence” under automobile guest statute. F.S.A. § 320.59. [2] Automobiles 48A ©7157 Page | 48A Automobiles A48AV Injuries from Operation, or Use of High- way 48AV(A) Nature and Grounds of Liability 48Ak157 k. Incompetency or Inexperience of Operator. Most Cited Cases If motorist, without premonition or warning, has a sudden attack and loses control of automobile and causes an accident, there is no negligence. [3] Automobiles 48A ©°181(1) 48A Automobiles 48AV Injuries from Operation, or Use of High- way 48AV(A) Nature and Grounds of Liability 48Ak181 Liability of Private Owner or Operator to Occupant 48Ak181(1) k. Care Required and Li- ability in General. Most Cited Cases Where one has notice or knowledge of the exis- tence of a physical impairment which may come on suddenly and destroy his power to contro! automo- bile, it is “gross negligence” within meaning of automobile guest statute for such person to operate the automobile. F.S.A. § 320.59. [4] Automobiles 48A ©*~238(7) 48A Automobiles 48AV Injuries from Operation, or Use of High- way 48AV(B) Actions 48Ak236 Pleading 48Ak238 Declaration, Complaint, or Petition 48Ak238(7) k. Wanton or Willful Acts or Gross Negligence. Most Cited Cases Complaint alleging that motorist drove automo- bile more than 60 miles an hour off paved portion of highway and onto shoulder in attempt to pass to right of another automobile proceeding in same direction and proceeding lawfully and with due care to make right turn into intersecting road, without any lawful © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.79 So.2d 679 (Cite as: 79 So.2d 679) reason or excusable emergency, and that collision resulted, alleged “gross negligence” within meaning of automobile guest statute. F.S.A. § 320.59. [5] Negligence 272 ©=213 272 Negligence 2721 Necessity and Existence of Duty 272k213 k. Foreseeability. Most Cited Cases (Formerly 272k10) “Simple negligence” is that course of conduct which a reasonable and prudent man would know might possibly result in injury to persons or property. [6] Automobiles 48A ©=*181(1) 48A Automobiles 48AV Injuries from Operation, or Use of High- way A8AV(A) Nature and Grounds of Liability 48Ak181 Liability of Private Owner or Operator to Occupant 48Ak181(1) k. Care Required and Li- ability in General. Most Cited Cases “Gross negligence” within meaning of automo- bile guest statute is that course of conduct which a reasonable and prudent man would know would probably and most likely result in injury to persons or property. F.S.A. § 320.59. [7] Automobiles 48A ©*181(1) 48A Automobiles A8AV Injuries from Operation, or Use of High- way 48AV(A) Nature and Grounds of Liability 48Ak181 Liability of Private Owner or Operator to Occupant 48Ak181(1) k. Care Required and Li- ability in General. Most Cited Cases If course of conduct is such that likelihood of in- jury to other persons or property is known by motor- ist to be imminent or clear and present, motorist's negligence is “gross negligence” within meaning of automobile guest statute. F.S.A. § 320.59. *680 George A. Speer, Jr., Sanford, for appellant. Page 2 J. Thomas Gurney, Orlando, for appellee. DREW, Justice. This appeal is from a final judgment entered in favor of the appellee after the lower court dismissed appellant's second amended complaint on the grounds that it failed to state a cause of action for gross negli- gence under the guest statute, Section 320.59 F.S.1951, F.S.A. [1] We think the complaint sufficiently alleged gross and wanton negligence. First, we think that type of conduct clearly appears from the allegations in the complaint that ‘said Daisy B. Speer did drive and operate said Speer automobile at a high rate of speed with her eyesight defective and impaired to the extent that she could not drive said Speer automobile safely at said high rate of speed she was driving, as aforesaid, in that her eyesight was poor, her percep- tion of distance bad to the extent that she could not safely judge distances and in that she saw objects double at times, all of which she well knew or had reason to know and should have known and as the sole proximate cause of her driving with defective and impaired vision to the extent aforesaid, said Daisy B. Speer did then and there drive said Speer automobile without reducing the speed thereof off the road to the right and into a car making a right turn resulting in injury to plaintiff passenger. *681 Our cases fully sustain this conclusion. In Baker v. Hausman, Fla., 1953, 68 So.2d 572, 573, in upholding a judgment dismissing a complaint for failure to state a cause of action, we said, in speaking of physical impairment in such cases, ‘in jurisdictions where the courts have been confronted with the ques- tion they have generally held that negligence, much less gross negligence or wanton misconduct will not be imputed to one who suddenly ‘blacks out’, faints or suffers a sudden ‘attack or stroke,’ loses con- sciousness and control of his car causing injury to himself or his guest without premonition or warning of his condition.’ (Italics added.) And we held in Bryan v. Bryan, Fla., 1952, 59 So.2d 513, 514, that a driver was not guilty of wanton misconduct when he fell asleep at the wheel of an automobile unless he ‘knew, or should have known, that he was in no con- dition to drive an automobile.’ (Italics added.) But in Johnson v. State, 148 Fla. 510, 4 So.2d 671, 672 where the driver knew what his condition of stupor © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.79 So.2d 679 (Cite as: 79 So.2d 679) was because he had just prior to the accident fallen asleep in a place where he stopped, we observed that the driver also knew that he was in no condition to drive and knew that his subsequent conduct in operat- ing the vehicle ‘endangered the lives of all people traveling on such highway’, and we held that the driver's conduct justified a conviction of manslaugh- ter, and that such a defendant ‘cannot escape the re- sponsibility by averring that he fell asleep and did not realize that he had hit and killed an unfortunate hu- man being who was entirely without fault.’ [2}][3] The opinion in the last cited case and the general trend of the cases point up the fact that the pivot upon which the question turns is knowledge of one's unfitness to drive. It is not even simple negli- gence if one has a sudden attack, loses control of his car and causes an accident if he had no premonition or warning. In such event the very foundation of neg- ligence-knowledge and hence foreseeability-is ab- sent. Our cases seem to hold, however, that where one has notice or knowledge of the existence of a physical impairment. which may come on suddenly and destroy his power to control an automobile, it is negligence to an extreme degree for such person to operate such vehicle. It is a moral certainty that when such event occurs some one, either the operator, or his guest, or innocent bystanders or operators of other vehicles, may be killed or injured. In this day and age when automobiles are killing and maiming untold thousands of people, one who operates such an in- strument of death on a highway under such condi- tions is simply playing Russian roulette-not alone with his life-but also with the lives of others. In our judgment, such conduct constitutes gross and wanton negligence. [4] Moreover, we think that the allegation in the complaint that the said ‘Daisy B. Speer did drive said Speer automobile at a rate of speed over sixty miles per hour off the paved portion of said highway onto the sand and grass shoulder thereof in an attempt to pass to the rint of another automobile proceeding in the same direction and proceeding lawfully and with due care to make a right turn into an intersecting road, without any lawful reason or excusable emer- gency, and in so doing collided with said other auto- mobile and ran violently into a ditch embankment, whereby, as a proximate cause of the aforesaid colli- sion, the sole proximate cause of the aforesaid gross negligence of said Daisy B. Speer,’ the plaintiff was Page 3 seriously injured, states negligence which is greater than simple negligence and is conduct of the nature condemned by the guest statute, namely conduct of a character which is gross and wanton. We think al- most every driver of an automobile on the public highways attempt to pass to the right of another to leave the paved portion of a public highway and drive on the shoulder of the road to the right of a vehicle going in the same direction in an attempt to pass that vehicle was gross and wanton negligence in the ab- sence of a lawful reason or excusable emergency. It is the kind of conduct that even the reckless driver would not intentionally be guilty of. *682 [S5][6][7] From the very beginning, the courts have encountered great difficulty in attempts to define any clear and distinct line to separate simple negligence from gross negligence. The difficulty is inherent in the question itself because it relates to different degrees of similar conduct. Perhaps no rule can ever be devised which will definitely separate one from the other. It is a simple matter accurately to separate black and white objects but it is difficult, if not impossible, accurately to separate different hues of gray. We think the rule which would more nearly solve the problem than any other would be one which recognized that simple negligence is that course of conduct which a reasonable and prudent man would know might possibly result in injury to persons or property whereas gross negligence is that course of conduct which a reasonable and prudent man would know would probably and most likely result in injury to persons or property. To put it another way, if the course of conduct is such that the likelihood of injury to other persons or property is known by the actor to be imminent or ‘clear and present’ that negligence is gross, whereas other negligence would be simple negligence. This likelihood of injury to other persons is es- tablished sufficiently to show conduct more culpable than mere simple negligence where the defendant drives an automobile into a highway and into the path of oncoming traffic without first looking, Nelson _v. McMillan, 1942, 151 Fla. 847, 10 So.2d 565; Motes v. Crosby, Fla., 1953, 65 So.2d 478; or drives rapidly around a curve to the left of the center of the road where vision is obstructed failing to observe other vehicles, Wharton v. Day, 1942, 151 Fla. 772, 10 So.2d 417; or drives along a highway at night know- ing that he is sleepy and in a condition of stupor, © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.79 So.2d 679 (Cite as: 79 So.2d 679) Johnson v. State, supra; or drives a car with tires known to have been worn smooth along a slippery highway at high speed, Shams v. Saportas, 152 Fla. 48, 10 So.2d 715, 716. In the latter case we said, speaking through Mr. Justice Thomas, after reference to the rate of speed, slickness of the road and smoothness of the tires, that ‘disaster might well have been anticipated if the driver lost control.’ (Emphasis supplied.) The allegations of fact in the instant case de- scribe conduct which is clearly as culpable as that held sufficient in the last cited cases to be gross and wanton misconduct. For the foregoing reasons we think the complaint was sufficient to withstand a motion to dismiss and to entitle the plaintiff to have her case tried by a jury. Reversed. TERRELL, SEBRING, HOBSON and ROBERTS, JJ., concur. MATHEWS, C. J., and THOMAS, J., dissent. Fla. 1955 Bridges v. Speer 79 So.2d 679 END OF DOCUMENT © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 4e?% 5 o? Westlaw, 147 So.2d 188 (Cite as: 147 So.2d 188) District Court of Appeal of Florida, Second District. Ida Ruth MALCOLM, Appellant, V. James R. PATRICK, Appellee. No. 2337. Aug. 8, 1962. Rehearing Denied Sept. 6, 1962. Automobile accident case. The Circuit Court for Orange County, W. A. Pattishall, J., granted defen- dant's motion for new trial following return of verdict for plaintiff, and the plaintiff appealed. The District Court of Appeal, Kanner, Acting C. J., held that re- gardless of whether driver actually had forewarning of illness before he blacked out and automobile ran upon sidewalk, striking pedestrian, instruction that if driver suffered sudden loss of consciousness he was not negligent was required to include qualification that he was not negligent only if he did not know and should not in exercise of ordinary care have known that he might suffer loss of consciousness. Reversed. West Headnotes [1] Appeal and Error 30 ©*856(5) 30 Appeal and Error 30XVI Review 30XVI{A) Scope, Standards, and Extent, in General 30k851 Theory and Grounds of Decision of Lower Court 30k856 Grounds for Sustaining Deci- sion Not Considered 30k856(5) k. Granting or Refusing New Trial. Most Cited Cases Reviewing court is limited to considering propri- ety of ground stated in order for new trial and must found its decision upon determination of whether or not stated ground Is sufficient. F.S.A. § 59.07(4). Page | [2] Automobiles 48A ©1157 48A Automobiles 48AV Injuries from Operation, or Use of High- way 48AV(A) Nature and Grounds of Liability 48Ak157 k. Incompetency or Inexperience of Operator. Most Cited Cases Neither negligence nor gross negligence is chargeable against driver who, while driving, be- comes suddenly stricken by fainting spell or loss of consciousness from unforeseen cause and is unable to control automobile. [3] Negligence 272 <="1570 272 Negligence 272XVIII Actions 272XVIII(C) Evidence 272XVII(C)1 Burden of Proof 272k1569 Defenses and Mitigating Circumstances 272k1570 k. In General. Most Cited Cases (Formerly 272k121.1(4), 272k121(1)) Negligence 272 <"1568 272 Negligence 272XVIII Actions 272XVUI(C) Evidence 272XVIII(C)1 Burden of Proof 272k1568 k. Proximate Cause. Most Cited Cases (Formerly 272k121.5, 272k121(5)) Where plaintiff establishes prima facie case of negligence, defendant has burden of showing his claimed sudden physical or mental incapacity result- ing in such accident, and of further showing that such incapacity was unanticipatable and unforeseen. [4] Appeal and Error 30 ©" 1033(5) © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.147 So.2d 188 (Cite as: 147 So.2d 188) 30 Appeal and Error 30XVI Review 30X VI1(J) Harmless Error 30XVI(J)1 In General 30k1033 Errors Favorable to Party Complaining 30k1033(5) k. Instructions in Gen- eral. Most Cited Cases Even if instructions erroneously placed upon plaintiff, suing for injuries received when she was struck by automobile, the burden of showing that sudden incapacity to drive, which defendant claimed was cause of accident, was unforeseen, defendant could not complain. [5] Automobiles 48A &°246(16) 48A Automobiles 48AV Injuries from Operation, or Use of High- way 48AV(B) Actions 48Ak246 Instructions 48Ak246(16) k. Competency of Opera- tor. Most Cited Cases Regardless of whether driver actually had fore- warning of illness before he blacked out and automo- bile ran upon sidewalk, striking pedestrian, instruc- tion that if driver suffered sudden loss of conscious- ness on blackout he was not negligent was required to include qualification that he was not negligent only if he did not know and should not in exercise of ordi- nary care have known that he might suffer loss of consciousness. *189 John A. Sutton of Sutton & Brown, Orlando, for appellant. William Berson of Berson, Barnes & Inman, Or- lando, for appellee. KANNER, Acting Chief Judge. The negligence action from which this appeal arises was brought by plaintiff, appellant here, against the defendant-appellee whose automobile, driven by his minor son, Larry, age 16, ran upon a sidewalk and struck plaintiff from behind as she was walking. The defense asserted was that the minor son suffered a lapse of consciousness or blackout which Page 2 caused him to lose control of the automobile and that this loss of consciousness at the crucial time refuted the charge of negligence. Verdict in the amount of $16,720 was returned by the jury for the plaintiff; but the trial judge, upon reconsideration entered the appealed order setting aside the jury verdict and granting motion for new trial made by defendant. *! From the footnoted or- der, it appears that the premise of the court in grant- ing the motion was that the charge concerning loss of consciousness was without evidentiary support and constituted harmful error not cured by the jury charges as a whole. FN1. ‘CONSIDERED, ORDERED and AD- JUDGED that the verdict herein and the judgment entered thereon, on the 29th day of June, 1960, be and they are hereby set aside and vacated on the ground that the Court erred in giving to the jury the following Court Charge, over the Defendant's objec- tion, to-wit: “The fact that the defendant's automobile left the roadway and ran up on to the side- walk, which is admitted, is prima facie evi- dence of negligence, that is to say, negli- gence on its face, nothing else appearing. This prima facie evidence, however, may be overcome by proof of surrounding circum- stances and conditions which will eliminate the character of negligence from the transac- tion. “In this connection, the Court charges you that a driver who suffers a sudden loss of consciousness or blackout is not guilty of negligence unless it is made to appear from the preponderance of the evidence that prior to such loss of consciousness he knew or by the exercise of ordinary care should have known that he might suffer a loss of con- sciousness. “Therefore, if you find from the evidence that the automobile of the defendant left the road and struck the plaintiff by reason of a loss of consciousness by the driver it will be your duty to return a verdict for the defen- dant unless you find that before the accident © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.147 So.2d 188 (Cite as: 147 So.2d 188) he knew, or by the exercise of that degree of care required of persons of like age, intelli- gence and experience that he might experi- ence such a loss of consciousness.’ for the reason that there was no evidence to serve as a basis for the above charge and the giving of the above charge in this cause constituted harmful error to the rights of the defendant, James R. Patrick, which harmful error was not cured by the Court's Charge as a whole to the Jury. The costs of the trial are to abide the event of the action.’ Plaintiff urges that, under a defense of loss of consciousness, it is necessary for the charge to com- prehend the principle of foreseeability as an essential part of the law by which such a defense can stand. [1] The court is limited on the appeal to consid- ering the propriety of the ground stated in the order for new trial and must found its decision upon a de- termination of whether or not the stated ground is sufficient. Section 59.07(4), Florida Statutes, F.S.A. See also Braddock v. Seaboard Air Line Railroad Company, Fla.1955, 80 So.2d 662. [2] In this country, by the great weight of author- ity, the rule is that neither negligence nor gross neg- ligence is chargeable *190 against the operator of a motor vehicle who, while driving, becomes suddenly stricken by a fainting spell or loss of consciousness from an unforeseen cause and is unable to control the vehicle. See Annotation, 28 A.L.R.2d 12, section 15, page 35. Thus it is indicated that a loss of conscious- ness while driving is a complete defense if such loss was not foreseeable. See 5A Am.Jur., Automobiles and Highway Traffic, Section 223, pages 365, 366. Pronouncements have been made in Florida concerning a sudden loss of consciousness by a vehi- cle operator and its effect upon asserted negligence. In Baker v. Hausman, Fla.1953, 68 So.2d 572, 573, the Supreme Court, in speaking of physical impair- ment as a defense in a negligence action, said that, ‘In jurisdictions where the courts have been con- fronted with the question they have generally held that negligence, much less gross negligence or wan- ton misconduct will not be imputed to one who sud- denly ‘blacks out’, faints or suffers a sudden ‘attack or stroke,’ loses consciousness and control of his car causing injury to himself or his guest without premo- Page 3 nition or warning of his condition.’ The above state- ment is quoted in the case of Bridges v. Speer, Fla.1955, 79 So.2d 679, with the court gomg on to indicate that by the general trend of the cases the pivot upon which the question turns is knowledge of one's unfitness to drive. The court then commented, ‘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. In such event the very foundation of negligence-knowledge and hence foreseeability-is absent. Our cases seem to hold, however, that where one has notice or knowl- edge of the existence of a physical impairment which may come on suddenly and destroy his power to con- trol an automobile, it is negligence to an extreme degree for such person to operate such vehi- cle.” Accord: Williams v. Frohock, Fla.App.1959, 114 So.2d 223. Hence the loss of consciousness Is a good defense if there was no premonition or warning. Since interpretation of the evidence is an issue here, the testimony will be reviewed. That which concerns the defense interposed is not in dispute. It was given by three doctors and the minor son. We summarize this testimony is some detail in order to delineate more clearly the facts concerning the physi- cal condition of defendant's son. A Dr. Sutter, the first physician to see Larry fol- lowing the accident, testified that Larry was not able to tell all the details of the accident and could not tell him what occurred between the time he was in the road until he hit the woman, that there was a lapse of memory by Larry for a short while when he went onto the sidewalk. The boy's mother, he continued without objection, had indicated that Larry had been having some type of spells for about a year, during which times he would stare into space and would not answer any questions, then would shake himself and seem to be straightened out after about two seconds. She recalled three such attacks. Larry denied to Dr. Sutter that he had knowledge of any attacks at all except that he had dizzy spells off and on for at least a year's time. Dr. Sutter arrived at a diagnosis of petit mal epilepsy through talking with the boy himself. Testimony of Dr. Fessenden, a psychiatrist to whom Dr. Sutter referred Larry, was that from his examination, he had been led to conclude that Larry had petit mal epilepsy. He described this ailment as a form of epileptic seizure involving a short convul- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.147 So.2d 188 (Cite as: 147 So.2d 188) sive sensation in which the patient loses conscious- ness for a very short period of time, varying from ‘flash’ duration to a second or two, depending upon the individual pattern of petit mal, sometimes with warning and sometimes not. He related without ob- jection the mother's account that for the past two years, though she did not realize anything was wrong, in speaking to Larry he would at times not answer and shortly after would give the answer. Larry's own version, said Dr. Fessenden, was that he had no knowledge of having had *191 any trouble and that he had no memory of anything between the time he was driving along the road and the time he hit the woman. In the opinion of that witness, the boy defi- nitely has petit mal and had a petit mal seizure. The deposition of a Dr. Gant set out that he was treating Larry Patrick at the time of the deposition in 1960 and had been treating him since September, 1958, seeing him once every two or three weeks dur- ing that time. Dr. Gant is a private medical practitio- ner in Tennessee, with emphasis upon the area of psychiatry. His account of Larry's report to him was that up to the time of the accident he had not had an attack. Dr. Gant responded under questioning that it was probably and likely that this was Larry's first attack, that there was nothing obtained from him pointing to a prior history of epilepsy. The seizures subsequent to the accident, said Dr. Gant, occurred one or two a day or one or two a week, according to information obtained from the boy's grandmother and admitted by Larry. By Larry's deposition, before the day of the ac- cident he had not had any spell, attack, loss of con- sciousness, or loss of memory but only a dizzy spell now and then, nothing such as this; and he had never before been treated by any physician for any attacks or blackouts or spells of that nature. When questioned as to frequency of the attacks since the accident, he replied that he had one or two additional blackout spells a week or as many as three or four a day but not as heavy as ‘that one,’ that to his knowledge he had never had any such attack preceding the automo- bile accident. He explained his dizzy spells prior to the time of the accident as ‘not really dizzy spells but you know, like you would be sitting down some- where and stand up quick and kinder get dizzy for a minute, nothing abnormal or strange. Sometimes we all have dizzy spells and feel kinder funny some- times, but other than that, I had nothing.’ He ex- Page 4 plained that there was no regularity at all but that if he had been bending over or straining or something like that and stood up quickly he might get a little bit dizzy. Larry, by his testimony, was advised following the accident not to drive an automobile, and he relin- quished his driver's license. We have indicated the prevailing rule in other jurisdictions and the rule which has been enunciated in this state. We find no case in Florida which bears factual similarity to the instant one, but we cite three cases from other state jurisdictions annotated in 28 A.L.R.2d 12, pages 40, 41, which, though not factu- ally parallel, have an aspect of relationship in that they concern dizziness and epilepsy. The first of these cases is Soule v. Grimshaw 1934, 266 Mich. 117, 253 N.W. 237. The evidence in that case revealed that, just before the accident, the defendant slumped over in the automobile and be- came unconscious. Defendant's testimony had tended to prove he had never had a prior fainting spell, that he was not intoxicated, and he had not suffered from apoplexy nor epilepsy. Defendant admitted, however, that he had felt dizzy prior to the accident and had continued to drive on, thinking the dizziness would wear off. The court submitted the cause to the jury upon the question of negligence of defendant in con- tinuing to drive with knowledge that a feeling of diz- ziness was coming over him, and a verdict for plain- tiff was returned. The verdict was upheld on review. The second extra-jurisdictional case which we cite is that of Goldman v. New York Rys. Co., 1919, 185 App.Div. 739, 173 N.Y.S. 737. In that case, a street car motorman during a routine downtown trip was not feeling well and experienced two periods of dizziness. He then fainted in his cab and caused a collision. The dizzy spells had passed away quickly. The judgment of the lower court for defendant was reversed for failure to submit the question of negli- gence to the jury. The casuse was of negligence to the jury. The cause was determined whether under those conditions and with those warnings the motorman *192 exercised reasonable care in continuing to run his car. Finally, from the Wisconsin jurisdiction comes the case of Eleason v. Western Casualty and Surety Co., 1948, 254 Wis. 134, 35 N.W.2d 301], wherein one question before the court was whether or not de- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.147 So.2d 188 (Cite as: 147 So.2d 188) fendant was negligent in operating a truck when he was subject to epileptic seizures. In that state, there was a Statutory provision prohibiting the operation of a motor vehicle by an epileptic. The trial court, evidently because the driver did not know he had epilepsy, held that he was not negligent. The Su- preme Court reversed, stating that the undisputed evidence was that the driver did know he was subject to spells which would render him unconscious and the fact he did not know the name of his malady was not controlling. The evidence showing that the driver knew he was likely at any time to become incapaci- tated to contro] a motor vehicle, said the court, was sufficient to render the driving of a car a negligent act as a matter of law. Thus, in the two above cases involving dizzi- ness, there had been no history of any such attacks prior to the day of the accident; and in the third case, the defendant did not know he had epilepsy until after the accident had occurred. [3] Where a plaintiff establishes a prima facie case of negligence, the burden of proof is cast upon the defendant to show the sudden physical! or mental incapacity and further to show that it was unantici- patable and unforeseen. Keller v. Wonn, 1955, 140 W.Va. 860, 87 S.E.2d 453; Driver v. Brooks, 1940 176 Va. 317, 10 S.E.2d 887; Lehman v. Haynam, 1956, 164 Ohio St. 595, 133 N.E.2d 97. [4] At this juncture, we interpolate that the part of the charge found in the court's order dealing with the burden of proof of this defense as previously foot- noted in this opinion raises an uncertainty. It is not clear whether the defendant or the plaintiff was en- cumbered with the preponderance of the evidence requirement, although the law imposes the burden upon the defendant. As applied to the present case, however, if it were assumed that the burden was on the plaintiff, the defendant connot complain, since that was to his advantage. The positions of the parties concerning the dis- puted excerpt of the trial judge's charge to the jury are diametric. Defendant asserts that there is no foun- dation in the evidence for an instruction whereby it might be found that the driver in advance of the acci- dent had notice, knowledge, or forewarning of ill- ness. Conversely, it is the viewpoint of plaintiff that the charge represents a proper statement of the law Page 5 and that to sever the portion regarding premonition would deprive her of her right to have the jury con- sider and weigh the effect which knowledge by the minor son of his previous dizzy spells should have had upon his decision to operate a motor vehicle. In appraising these antipodal views of the liti- gants, we note that the testimony does establish that defendant's son knew he had experienced intermittent dizzy spells for at least one year before the accident. It also reveals that these were characterized by such symptoms as staring into space, ceasing to talk in the middle of a sentence, and failing to answer questions, followed by recovery symptoms whereby Larry would shake himself and resume previous conversa- tional activity. The doctors’ diagnosis of petit mal epilepsy subsequent to the accident was largely ar- rived at through this testimony describing the dizzy spells and reactions which occurred prior to the acci- dent. At least one doctor declared that he had arrived at his diagnosis from Larry's own account. It is clear that the previous dizzy spells as described were in- dicative of an unusual, abnormal, and recurring con- dition which spanned a considerable period of time. [5] The problem here is the trial judge's holding that there was no evidentiary basis *193 upon which he could have given the jury charge in issue, conse- quent upon which was his order setting aside the jury verdict and granting motion for new trial. We have stated the rule as being that loss of consciousness is a good defense when there is no premonition or warn- ing. In asserting this defense, the defendant assumes the burden of proof. There are two essentials which one must establish in order for the defense to be a valid one, (1) the sudden physical or mental incapac- ity and (2) the unanticipatable and unforeseen nature of such incapacity. Plaintiff here was called upon only to establish a prima facie case of negligence; it was not incumbent upon her to prove that there had been no forewarning but instead it was upon the de- fendant to go forward with the proof of his defense. When the judge charged the jury, he could not restrict that charge to the phase of blackout to the exclusion of the charge relating to premonition. Although the apparent reasoning back of the court's ruling was, as urged by the defendant, that the evidence did not Support premontion, yet if there was to be given any charge under the defense interposed, that charge could not be split any more than could the defense itself have been stripped of one of its necessary req- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.147 So.2d 188 (Cite as: 147 So.2d 188) uisites. Recognizing the broad discretion accorded a trial judge by the Cloud v. Fallis decision, Fla. 1959 110 So.2d 669, we nevertheless have there a problem of law to be applied in the light of the undisputed evidence. It appears to this court that from these con- siderations, the trial judge in initially giving the charge so as to include premonitory warning, acted properly. We add certain observations concerning the petit mal form of epilepsy and its effect on one afflicted with it as found in Gray's Attorneys' Textbook of Medicine, Third Edition, Volume 2, section 100.01- 100.22, pages 1046-1082. These, we think, are both illuminating and interesting with respect to the pre- sent case. Petit mal attacks are described as being of very short duration, with momentary unconscious- ness during which the patient will stop whatever he is doing until he is again conscious. Petit mal manifests itself in a great variety of peculiarities, according to Gray; the patient may falter or fumble, or may simply be confused for a moment. One variety does not in- volve complete loss of consciousness, but the patient may hear and not be able to respond. Such condi- tions, the text continues, may be called lapses and are frequently described by the patient as dizzy spells. Observers often say the patient appears to be think- ing, his mind elsewhere. It is said that there is usually no warning of an approaching attack, nor recollection of the attack. An epileptic is characterized as having the ten- dency to belittle or hide his infirmity, wishing to be like other people who drive cars, swim, ride bicycles, and work with moving machinery. He is not willing to admit the hazard that may result from his condi- tion. He does not confide in others as to his trouble and often does not know of it himself. The average number of attacks suffered by one afflicted with petit mal epilepsy is said to be 573 per year, ranging in different individuals from less than 20 seizures annually to 20 per day. The observation is made that without doubt automobile accidents are caused directly by epilepsy in a far greater proportion of cases than known, and that the petit mal victim is more likely to be involved in an accident because of the patient's attempt to lead a normal life. For anyone who knows himself to be an epileptic ever to drive a Page 6 car 1s stated to be unforgivable. It was proper for the trial judge to give the as- saulted charge. Consequently, he erred in ordering new trial. The order is reversed and the cause re- manded for reinstatement of the verdict. Reversed. SMITH and WHITE, JJ., concur. Fla.App. 1962 Malcolm v. Patrick 147 So.2d 188 END OF DOCUMENT © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.IN THE CIRCUIT COURT FOR THE TWELFTH JUDICIAL CIRCUIT a AND FOR SARASOTA COUNTY, F LORIDA STATE FARM MUTUAL AUTOMOBILE | _ INSURANCE CO., as subrogee of PAUL D. GRAYBEAL BF | a Case #: 2009-CA-9756-NC vs. . Plaintiffs) - BRANDON R. MITCHELL, AN SWE AFFIRMATIVE. DEFENSES AN D DEMAND FOR JURY TRIAL, "DEFENDANT, BRANDON R. MITCHELL, by. and through the undersigned attomey hereby Answers the Complaint and Amendments thereto, as welll as other affirmative relief, pursuant to Rule 1, 1 10 of the F lorida Rules of Civil Procedure, and the Laws of the Stat of F Florida as s follows: ?P LIMINARY STATEMENT ‘That on or 1 about May 2 25 2006 the Defendant suffered, a epileptic seizure © thereby - causing him: to ose control of his motor functions and being incapacitated while oe “operating @ a motor vehicle. “That the Defendant was: diagnosed with enilepsy i in 2004 and - - a | at the time of the incident mentioned above was under medical care ‘and supervision, , and. was following all presoribed: medication and instructions regarding precautions regarding his condition, including but not. limited t to o safely operating a . motor vehicle. ‘That o on the date of the incident in question, ‘the Defendant did not t experience any. of the warning VANCE» “LOTANE. JUL 20-2009 BOOKHARDT, |, Page | of 4 gsigns that would indicate that he would suffer a lapse in consciousness and/or contro! of - the motor vehicle. That the attack was sudden, unforeseeable and hence the Defendant was not negligent in the operation of the motor vehicle. ~COUNTT 1. Adnmitted for jisitonal purposes, denied : as to the amount of damages. 2. Denied. 3 Denied. 4 Denied. 5 Without knowledge th therefore denied. 6... Without inowiedge, therefore denied. 7 Denied. AKEIRMATIV E DEFENSES" 8. FIRST AFFIRMATIVE ‘DEFENSE — The Defendant shad a - sudden and unforeseeable loss of capacity and/or consciousness, and as a a matter of law negligence, whether ¢ common or I BrOSs cannot be imputed to defendant. 9. “SECOND AFFIRMATIVE DEFENSE - — The Plaintift was. + negligent in the operation 0 of the motor 1 vehicle under his control at the time of the incident complained of, and that any inju uries. s sustained v were proximately and directly caused by the Plaintift and that hence the Plaintiff cannot recover er damages that he is responsible. Page 2 of 410. THIRD AFFIRMATIVE DEFENSE - That any and al damages suffered d by Plaintiff were the result of an intervening cause, that was unforeseeable and in no way resulted from the Defendant’s lack of due care, or related to any negligence on the part of the Defendant in the operation and control of the motor vehicle in question. UL F OURTH AFFIRMATIVE DEFENSE - That the economic lass rule bars any and all claims for damages, other than for r damage to property or persona i injury. _ WHEREFORE, DEFENDANT, BRANDON R “MITCHELL, respect requests that the Plaintiff take nothing from the present cause of action, and that judgment be entered i in favor of the Defendant, award Defendant costs for being required to defend. against this action, and any and all further relief this Court deems just and proper. | ’ DEFENDANT DEMANDS TRIAL BY JURY ON ALL ISSUES SO TRIABLE a Page 3 of 4‘CERTIFICATE OF SERVICE J HEREBY CERTIFY that a true copy of the foregoing has been furnished t to Mr. Troy. Lotane; Esq. Vance; Lotane & Bookhardt, P.A. 1980 Michigan Avenue BO Be | Cocoa, FL 32922 — Wo eS (X) By U. S. mail this Thursday, July 16, 2009. MICHAELT. ROBERTSON & ASSOC. P.A. 1834 MaINSTREET . SARASOTA, FLORIDA. 34236. PH: 941 365- 7220 : _. FAX: 941 365- 5540 — ATTORNEY FOR: Bone if ihe . a? hy . . , : x Sf Uf.