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Vinci v. Heimbach12/17/1998
JUDGMENT: Affirmed.
Plaintiffs-appellants Nina Stein and Theresa Vinci, an automobile driver and passenger, appeal in these consolidated appeals from summary judgment against them on their personal injury claims against defendant-appellee Robert Heimbach, an epileptic driver who, during a seizure, crossed the center line and struck their vehicle while it was stopped at a traffic light.
Plaintiffs filed against Heimbach separate negligence actions, which the trial court consolidated. Heimbach denied the allegations in each case and ultimately filed a consolidated motion for summary judgment against them. He argued that he was not negligent and that his sudden unforseen unconsciousness from an epileptic seizure legally excused any liability for the collision. He supported this motion by his own and plaintiffs' deposition testimony, as well as an affidavit from George Topalsky, M.D., his current physician, and hospital emergency room medical records.
Heimbach testified that he had two seizures in 1964 or 1965, approximately 30 years prior to the collision in this case. He was treated by Dr. Catalano who prescribed 100 milligrams of Dilantin to be taken three times a day to control the seizures. He was examined by Dr. Catalano annually. In December 1993, approximately 9 months before the incident, his prescribed dosage of Dilantin was reduced by one pill per day. Heimbach thereafter as directed took one pill in the morning and in the evening when he went to bed, but no longer took a third pill in the afternoon. Prior to the collision in this case, he did not suffer any seizures while on this dosage.
Dr. Topalsky, who treated Heimbach after the collision, testified by affidavit as follows:
1. I am a doctor of internal medicine who has treated Robert Heimbach for epilepsy.
2. Robert Heimbach had been a patient of Dr. Catalano prior to my treatment.
3. As of December, 1993, Mr. Heimbach was taking 100 mgs. of Dilantin twice daily.
4. According to the records of Bedford Medical Center Emergency Room (See Exhibit 1), my examination of Mr. Heimbach and his explanation to me, he suffered an epileptic attack on September 19, 1994 at the time of the accident.
5. Mr. Heimbach suffered what may be referred to as a breakthrough seizure.
6. The seizure occurred even though Mr. Heimbach's Dilantin level was 12.6, normal being between 10 and 20.
7. Mr. Heimbach could not have predicted this seizure and did nothing to bring it about.
Heimbach's motion for summary judgment was also supported by testimony from plaintiffs. Vinci, the passenger, saw Heimbach immediately before the collision on September 14, 1994, and described the collision as follows:
We were just parked, and I saw this car coming at me and I said, He's dead. I thought he was dead, and he hit us head on. (Vinci Depo. at p. 12.)
Stein did not file any brief in opposition to Heimbach's motion for summary judgment. Vinci responded to Heimbach's motion for summary judgment by filing her own cross-motion for summary judgment. She argued that the defense of legal excuse should not apply as a matter of law to epileptics who have knowledge of their medical condition or who already had a seizure. She did not support her cross-motion for summary judgment with any evidence.
The trial court granted summary judgment in favor of Heimbach and denied Vinci's cross-motion for summary judgment in a two-page typewritten journal entry. Vinci and Stein timely appeal, raising the following identical assignment of error:
THE DEFENSE OF LEGAL EXCUSE IS NOT AFFORD
Page 1 2 3 4 Ohio Personal Injury Attorneys
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