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Published: 7/5/2008

In sudden emergency, accident victim may be out of luck

Answer: Your question raises an interesting legal issue. It speaks to whether it s fair, on the one hand, to hold someone responsible for the consequences of events over which they had no control or, on the other hand, to say innocent accident victims are barred from recovering for their injuries.

In Ohio and most other states, a person who loses consciousness and causes an accident generally cannot be found to have acted negligently and therefore won t have to compensate the injured person. Under what s called the sudden-emergency defense, the driver who blacked out can only be found negligent if he or she had reason to anticipate the loss of consciousness.

It s not enough, though, for someone who lost consciousness to simply declare she passed out so she shouldn t be held liable. The person asserting the defense has the burden of proof to show the loss of consciousness caused the accident and that the blackout couldn t have been anticipated.

An example might help to illustrate how this could play out. Let s say that Betty was driving down Monroe Street one afternoon when she had a heart attack, lost consciousness, then crossed the centerline and crashed into Bob, causing serious personal injuries. If Betty can show she actually lost consciousness before the accident, the sudden-emergency defense will work in her favor and Bob will be out of luck.

If, though, Betty was driving down Monroe Street after a visit to her cardiologist and the doctor told her she had severe heart problems and shouldn t be driving because she could pass out at any moment, she d have a tough time using the defense. Her cardiologist s warning would be reason for her to anticipate the loss of consciousness and she could be found negligent.

The rule is understandable and most courts across the country recognize the sudden-emergency defense. People who pass out from a medical emergency aren t acting irresponsibly or driving dangerously, so they shouldn t be held liable.

The problem with the rule is that it can produce an unfair result for the person who was injured. As a personal injury attorney, I naturally sympathize with the people like Bob in the example above. Even if the injuries are severe, no recovery is possible, which could be devastating to a family if the injured person was the breadwinner and is no longer able to work or will live in pain for the rest of his life.

Even accident victims who carry uninsured and underinsured motorist coverage are out of luck as a result of the sudden-emergency defense. This seems particularly troubling given that people buy this insurance to protect themselves when coverage isn t available from the at-fault driver. But the only way that coverage kicks in is if the other driver could be deemed negligent, which doesn t apply in the scenario we re talking about. It would seem that the Ohio General Assembly could tweak the uninsured and underinsured motorist statute so coverage would be available in such circumstances. Bipartisan legislation to do just that has been introduced.

Dale Emch practices law at the Charles E. Boyk Law Offices, LLC, in Toledo. In his column, he will discuss general legal principles and answer readers questions. Neither Mr. Emch nor The Blade present or intend his column to be taken as legal advice. Readers seeking legal advice should consult with an attorney. Readers should send their questions to Mr. Emch at demch@charlesboyk-law.com or Dale Emch, 405 Madison Ave., Suite 1200, Toledo, OH 43604.



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