COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 73440, 73464 THERESA VINCI, ET AL., Plaintiffs-appellants JOURNAL ENTRY vs. AND ROBERT HEIMBACH, OPINION Defendant-appellee DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 17, 1998 CHARACTER OF PROCEEDING: Civil appeals from Common Pleas Court, Case Nos. CV-296809, CV- 315108. JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiffs-appellants: WILLIAM H. STEIN 7791 Brecksville Road Brecksville, Ohio 44141 MICHAEL J. O'SHEA Suite 450, Lakeside Place 323 Lakeside Avenue Cleveland, Ohio 44113 For defendant-appellee: SHAWN R. PEARSON Suite 410, Lakeside Place 323 Lakeside Avenue Cleveland, Ohio 44113 -2- KARPINSKI, J.: 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 -3- 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 -4- 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 AFFORDED OR AVAILABLE TO ANY PERSON WHO HAS EITHER KNOWLEDGE OF THE RELEVANT MEDICAL CONDITION OR WHO HAS HAD AN EPISODE OF THE MEDICAL CONDITION. This assignment lacks merit. Plaintiffs argue that the trial court erred by granting summary judgment for Heimbach. They argue generally that notice of a physical disability which might impair one's driving should render one liable for any resulting injuries. They specifically argue that epileptics should be deemed to be negligent and held liable for causing motor vehicle accidents even when they suffer from sudden blackouts without having any reason to anticipate that a seizure is imminent in a particular instance. Declining to adopt this view, which is akin to imposing strict liability on epileptics, the trial court stated as follows: As a matter of law, Defendant Robert Heimbach has established the defense of unforeseeable unconsciousness. By establishing this defense as a matter of law, Defendant has established a legal excuse for his otherwise negligent conduct. See Fitas v. Estate of Baldridge (1995), 102 Ohio App.3d 365. Defendant Heimbach has presented substantial evidence that the seizure he suffered moments prior to -5- the motor vehicle accident at issue in this case was unforeseeable. The evidence establishes that Heimbach suffered two seizures during 1964 or 1965, that he has been on Dilantin since his 1964-1965 seizure episodes, and that he did not suffer another seizure attack until September 19, 1994, nearly thirty years after his initial seizure episodes. Heimbach's treating physician, George Topalsky, M.D. opines that (1)Heimbach suffered a seizure even though his Dilantin level was normal, and that [sic] (2)Heimbach could not have predicted this seizure and did nothing to bring it about. A Motion for Summary Judgment forces the nonmoving party [i.e., Plaintiff Theresa Vinci &/or Nina Stein] to set forth facts, by affidavit or otherwise, showing that there are genuine issues of fact. Plaintiff has failed to submit any evidence showing that there exists a genuine issue of material fact as to whether the September 19, 1994 seizure episode was foreseeable to Defendant Robert Heimbach. There is no evidence to contradict the fact the Heimbach suffered a sudden and unexpected seizure, that Heimbach could not have anticipated the seizure or that the seizure was not self- created. (Id. at pp. 1-2.) We believe that the trial court's judgment is consistent with the case law from this and other jurisdictions governing automobile negligence claims involving epileptics. See Liability for Automobile Accident Allegedly Caused by Driver's Blackout, Sudden Unconsciousness or the Like (1979), 93 A.L.R.3d 326, Section 7 Epileptic Seizure. In a case involving a sudden heart attack, this court previously recognized that claims arising from epileptic seizures are governed by the same principles that apply in other cases involving sudden unconsciousness. The Welden Tool Co. v. Kelley (1947), 81 Ohio App. 427, 431. The Supreme Court of Ohio summarized the general principles governing the defense of sudden unconsciousness in Lehman v. Hayman (1956), 164 Ohio St. 595, syllabus paragraph two: -6- 2. Where the driver of an automobile is suddenly stricken by a period of unconsciousness which he has no reason to anticipate and which renders it impossible for him to control the car he is driving, he is not chargeable with negligence as to such lack of control. Plaintiffs contend that claims of sudden unconsciousness resulting from epilepsy are different, however, because there is sufficient reason to anticipate them from the nature of the condition or the fact of prior seizures. Plaintiffs' argument emphasizes, to the exclusion of all other factors, the generalized risk of driving with this medical condition. It ignores, however, that defendant took all reasonable precautions prescribed by his treating physician, who had expert knowledge of his condition, and that defendant had no forewarning of an impending epileptic seizure in this particular instance. Heimbach described what it is like to experience a sudden onset seizure as follows: Q. I'd like for you, if you can, to kind of describe what the seizure feels like, as best you can. A. It's quick. I don't have It was really quick, you know. I knew something had happened and it happened just like that. And you don't remember anything. Q. Are you totally blacked out? A. Yes. Q. So you're not aware of what it [sic] is going on around you? A. No. You're blacked out. Q. And that's what happened to you in September of `94 at the accident, you blacked out? A. Yes. -7- (Heimbach Depo. at p. 27-28.) It goes without saying that continued driving, with knowledge of a diagnosed epileptic condition and prior seizures, would provide sufficient evidence of ignoring a foreseeable risk to recover on a claim of negligence if the condition is untreated or the driver ignores his physician's warnings or advice. However, defendant in this case did not ignore the risks from his medical disability and took significant precautions, including all prescribed medicine as directed with regular monitoring. Plaintiffs presented no evidence that defendant failed to disclose his condition to the Registrar of Motor Vehicles, that he failed to comply with the ongoing requirement for physician certification that his condition was under effective medical control necessary to maintain licensing, or that he was an unsafe driver when medicated. See R.C. 4507.06(A)(1)(c) and R.C. 4507.08(D)(3). Plaintiffs ignore completely the significance of defendant's undergoing medical treatment to alleviate his medical condition. Nor did plaintiffs present any medical opinion testimony either to contradict the testimony of defendant's physician or to assist in evaluating the risks posed by defendant's condition. Prior to this occurrence, defendant had not experienced a seizure for approximately thirty years. He maintained his Dilantin medicine level in the therapeutic range and unexpectedly suffered a breakthrough seizure. (Dr. Topalsky Affidavit at Paras. 5 and -8- 6.) According to Dr. Topalsky, he could not have predicted this seizure and did nothing to bring it about. (Id. at Para. 7.)1 The record contains no evidence that defendant knew or should have known he suffered from a condition while he was medicated that was likely to interfere with his ability to drive safely. There is no evidence to establish: (1) a reasonably foreseeable risk from defendant's operation of his vehicle while he was under medication, (2) a likelihood that defendant would suffer a seizure any greater than that of any member of the general public, or (3) a likelihood that an accident would occur sufficient that a reasonably prudent person would act differently from defendant in the case at bar. Plaintiffs argue that the mere fact a driver involved in an accident was diagnosed with epilepsy is sufficient by itself to render him liable. We decline to adopt this rule of strict liability. To recover under existing common law principles, plaintiffs must establish defendant acted negligently in ignoring an unreasonable and foreseeable risk of harm prior to the onset of sudden unconsciousness. Generalized knowledge 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. 1 Plaintiffs did not allege that defendant's prior physician negligently certified defendant's condition was under effective medical control. See Krejci v. Akron Pediatric Neurology, Inc. (1987), 31 Ohio App.3d 273. -9- 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.2 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 2 To prove criminal negligence the state is required to prove a substantial departure from due care as opposed to the mere failure to exercise due care in ordinary negligence cases. See Committee Comment to R.C. 2901.22. -10- 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. -11- 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. -12- DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .