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05-22-14 It's The Law - Driving Unconscious? Could Be A Good Defense

It's The Law

Driving Unconscious? Could Be A Good Defense.



I was hit by a car behind me while stopped at a traffic light. The driver claimed he was unconscious and should have no liability. I thought that anyone hitting someone from behind was liable for injuries. Who is right?


Florida courts recognize a rebuttable presumption attaching to the rear driver in a rear-end collision. It arises out of necessity in cases where the lead driver sues the rear driver. Ordinarily, the Plaintiff bears the burden of proof on all four elements of negligence:

  1. Duty of care;
  2. Breach of duty;
  3. Causation; and
  4. Damages.

But, obtaining proof of breach of duty and causation is problematic for the lead driver, who usually knows he has been hit but does not know why. Accordingly, the law presumes the driver of the rear vehicle is negligent unless that driver introduces evidence to establish why he was not negligent.

To rebut the presumption of negligence, the rear driver must introduce evidence showing the front driver was negligent or that negligence of the rear driver was not the sole cause of the accident. If the front driver is also negligent, Florida applies a rule of comparative negligence and apportions liability based upon the percentage by which each party's negligence contributed to the damages.

The most common evidence to avoid the presumption of negligence is proof the lead driver stopped suddenly and arbitrarily or for no apparent reason. Because it should be anticipated that drivers at intersections might stop suddenly for pedestrians or other reasons, it is not enough to show that the lead driver merely stopped suddenly. It must be shown that the sudden stop could not reasonably be expected.

The sudden emergency doctrine can also insulate the rear driver. This rule applies in situations where the rear driver takes action to avoid another vehicle or even a pedestrian that would not have been expected by use of ordinary care or where a vehicle ahead unforeseeably swerves into the rear driver's lane.

Perhaps the most interesting avoidance of liability by the rear driver in a rear-end collision is unconsciousness. The recent case of Marcum v. Hayward is illustrative.

In the Marcum case, Angela Hayward was stopped at a red light when she was struck from the rear by a vehicle driven by Jordan Marcum. After she was struck, Ms. Hayward exited her vehicle and observed Ms. Marcum having a seizure. Ms. Marcum testified she blacked out, that the seizure was sudden and unexpected, and she did not wake up until after the collision.

The appellate court explained it is well settled that negligence is not chargeable against the operator of a motor vehicle who, while driving, suffers a sudden loss of consciousness from an unforeseen cause. The court went on to explain that 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.

To establish the defense, the driver must establish the following elements:

  1. The driver suffered loss of consciousness or capacity;
  2. Loss of consciousness or capacity occurred before the driver's alleged negligence;
  3. Loss of consciousness was sudden; and
  4. Loss of consciousness or capacity was neither foreseen nor foreseeable. That means, the driver had no notice or knowledge of the existence of physical impairment or condition which might impair the driver's ability to control an automobile.

The court ruled in favor of Ms. Marcum. She established she lost consciousness before impact. She also established that she had never experienced a seizure before the collision and there was no evidence she had notice of being at risk for a seizure. Ms. Marcum's doctor testified she had no way to anticipate the onset of the seizure. Testimony of Ms. Marcum and her passenger confirmed there was no time between onset of the seizure and the impact for her to take any evasive action.

Although there is a presumption of negligence applying to the rear driver in a rear-end collision, the presumption is rebuttable. The facts and circumstances of each case will determine liability.

By: William G. Morris, Esquire

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island Eagle

Other articles of interest can be viewed at our website, www.wgmorrislaw.com.