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Vinci v. Heimbach12/17/1998
e of a physical disability, as opposed to knowledge of an impending seizure, is insufficient to warrant recovery, particularly when a driver's seizures have been controlled without incident by medication for approximately thirty years.
Negligence is typically shown by the driver's failure to heed appropriate warning signs. For example, in State v. Boomershine (1993), 85 Ohio App.3d 21, the Second District Court of Appeals found sufficient evidence of negligence to support a vehicular homicide conviction against an epileptic. The Court held that Boomershine could have reasonably foreseen the blackout resulting from his epileptic condition because he had not seen a doctor for 10 years, had a seizure 3 or 4 months before the collision despite taking medication, and had blacked out while driving and caused a collision 8 or 9 years earlier. Boomershine also falsely denied his condition in his driver's license application. This denial implied he was aware his operating a motor vehicle was dangerous.
We are aware that Boomershine involved criminal negligence, which, unlike negligence in tort law, has an element of aggravation. Both types of negligence, however, require some evidence that the defendant's loss of consciousness was reasonably foreseeable. This negligence may be established, for example, by the driver ignoring his physician's advice or the onset of an impending seizure within sufficient time to prevent the occurrence. There is no such evidence in this case. On the contrary, the record shows that defendant had no warning of the onset of this breakthrough seizure. He was unable, moreover, to control his mental state. His unconsciousness was not like that of one who dozes off by voluntarily going to sleep a condition for which any driver would be responsible.
Heimbach specifically testified that he never experienced any symptoms that a seizure was impending:
Q. Had you any other feelings or what seemed like seizures prior to the accident in that month that you had been trying to lose weight?
A. No. (Heimbach Depo. at p. 30.)
Although Jenkins v. Morgan (1988), 57 Ohio App.3d 40, did not involve epilepsy, we find this court's opinion in that case instructive. In Jenkinswe adhered to the Supreme Court's syllabus in Lehman and declined to find that the driver had a reason to anticipate his unconsciousness despite the fact that the evidence showed some lapse of time between nausea induced by a heart attack and the loss of consciousness. Id. at 44. The record in this case contains no evidence of any lapse of time before the sudden and unexpected onset of a seizure. Under the circumstances, the trial court properly applied the law to the undisputed facts in this case.
Accordingly, plaintiffs' sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellants his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
ANN DYKE, P.J., and JOSEPH J. NAHRA, J., CONCUR.
DIANE KARPINSKI JUDGE
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