Roberts v. Boehl

[Cite as Roberts v. Boehl, 2018-Ohio-1118.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
SHIRLEY L. ROBERTS, :
Plaintiff-Appellant, : CASE NO. CA2017-08-039
: OPINION
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:
SCOTT BOEHL, et al., :
Defendants-Appellees. :
CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2016-CVC-00449
O'Connor, Acciani & Levy, LPA, Wesley M. Nakajima, 600 Vine Street, Suite 1600,
Cincinnati, Ohio 45202, for plaintiff-appellant
David P. Bolek, P.O. Box 145496, Cincinnati, Ohio 45250, for defendant-appellee, Scott
Boehl
RINGLAND, J.
{¶ 1} Plaintiff-appellant, Shirley L. Roberts, appeals the decision of the Clermont
County Court of Common Pleas which granted summary judgment in favor of defendant-
appellee, Scott Boehl. For the reasons discussed below, this court reverses the trial court's
decision and remands for further proceedings.
{¶ 2} On January 12, 2015, Boehl was driving his truck on Interstate 275 and began
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to feel lightheaded. Boehl decided he would get off at the next exit, approximately five
minutes travel time away. Boehl felt progressively worse as he continued to drive towards
the exit.
{¶ 3} Boehl exited the highway at Ohio Pike and turned right, looking for the nearest
place to park. He turned right onto Mount Carmel Tobasco Road and then entered the
parking lot of Butterbee's restaurant. Boehl positioned his truck to reverse into a parking
space.
{¶ 4} Boehl claimed to be unconscious for what occurred next. Boehl's truck
reversed out of Butterbee's parking lot and crossed all four lanes on Mount Carmel Tobasco
Road. The truck collided with several vehicles in its path, including one driven by Roberts.
Boehl's truck stopped after impacting a McDonald's restaurant across the street from
Butterbee's.
{¶ 5} In March 2016, Roberts filed a complaint alleging that Boehl was negligent.1
Boehl answered, raising the affirmative defense of a sudden medical emergency. At his
deposition, Boehl testified concerning his recollection of the January accident. Boehl also
revealed that a week prior to the accident he suffered a concussion after being physically
assaulted. And Boehl testified that six to eight years earlier he had become lightheaded
while driving, lost consciousness, and rear-ended a car. Boehl thought he suffered a panic
attack in that earlier accident, for which he sought no medical treatment. The January
accident was "much more severe" than what he experienced in the earlier accident.
{¶ 6} Roberts moved for summary judgment and filed Boehl's deposition in support.
Roberts argued that Boehl could not prove the defense of sudden medical emergency
1. Roberts also asserted claims against her insurer, Nationwide Mutual Fire Insurance Company ("Nationwide"),
for its subrogated interest in the litigation and for uninsured/underinsured coverage. The McDonald's franchisee
and its insurer later intervened in the case, asserting property damage claims against Boehl.
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because: (1) his loss of consciousness was not sudden but occurred only after experiencing
progressively worsening lightheadedness for miles of driving, and, (2) the accident was
foreseeable as Boehl lost consciousness in a similar prior event.
{¶ 7} Boehl responded in a cross-motion for summary judgment asking the court to
grant judgment in his favor on the sudden medical emergency defense. Boehl supported his
motion with the affidavit of a medical expert witness, Dr. Gerald Steiman. Dr. Steiman's
affidavit incorporated his written medical report, which discussed both the methodology and
results of his evaluation of Boehl's accident. The report explained that Dr. Steiman
interviewed Boehl, conducted a physical examination, and reviewed Boehl's medical records.
Dr. Steiman further stated, "[t]his evaluation has been conducted with the assumption that
the representations of the examinee are true and correct." Ultimately, the doctor opined that
during the January accident Boehl suffered either a seizure related to the earlier concussion
or a panic attack. The doctor further opined that Boehl's loss of consciousness was "neither
anticipated nor expected" and that Boehl "would not have foreseen he would lose
consciousness."
{¶ 8} Boehl also filed the affidavit of a witness to the January accident. The witness
stated that Boehl's truck side-swiped the front of her stopped vehicle. The witness saw Boehl
inside the truck as it passed her vehicle and it was her impression that Boehl was
unconscious during the January accident.
{¶ 9} The trial court found that Boehl's deposition testimony and the two affidavits
satisfied Boehl's burden of demonstrating that he was suddenly rendered unconscious by a
medical emergency. With respect to whether Boehl had any reason to anticipate the
accident, the court credited Dr. Steiman's opinion that Boehl would not have foreseen he
would lose consciousness. The court noted that Roberts had not challenged this expert
opinion evidence with a contradictory medical opinion. Consequently, the court concluded
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that Boehl met his burden of proof with respect to the defense of sudden medical emergency
and Roberts failed to meet her reciprocal burden of demonstrating a genuine issue of fact for
trial. The court granted summary judgment in favor of Boehl and dismissed the action.2
{¶ 10} Roberts appeals and raises the following assignment of error:
{¶ 11} THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR SUMMARY
JUDGMENT FILED BY DEFENDANT-APPELLEE.
{¶ 12} Roberts argues that there remain genuine issues of fact for trial on whether
Boehl suffered a sudden medical emergency and if so, whether the accident was
foreseeable.
{¶ 13} This court reviews summary judgment decisions de novo, which means we
review the trial court's judgment independently and without deference to the trial court's
determinations, using the same standard in our review that the trial court should have
employed. Ludwigsen v. Lakeside Plaza, LLC, 12th Dist. Madison No. CA2014-03-008,
2014-Ohio-5493, ¶ 8. Pursuant to Civ.R. 56(C), summary judgment is appropriate when (1)
there is no genuine issue of any material fact, (2) the moving party is entitled to judgment as
a matter of law, and (3) the evidence submitted can only lead reasonable minds to a
conclusion which is adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc., 82
Ohio St. 3d 367, 369-70 (1998).
{¶ 14} The moving party bears the initial burden of informing the court of the basis for
the motion and demonstrating the absence of a genuine issue of material fact. Robinson v.
2. Nationwide, the McDonald's franchisee, and the franchisee's insurer also filed motions for summary
judgment. Those motions generally supported the arguments made in Roberts' motion but added no additional
summary judgment evidence. The court denied these motions and dismissed their claims against Boehl.
Nationwide, the McDonald's franchisee and its insurer have not appealed the judgments rendered against them
and in favor of Boehl. Nationwide had earlier amended its summary judgment motion with an alternative
argument requesting that the court dismiss Robert's uninsured/underinsured claim against it if the court were to
grant summary judgment in favor of Boehl. The court granted Nationwide's alternative motion on the basis that it
found that Boehl was not liable to Roberts.
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Cameron, 12th Dist. Butler No. CA2014-09-191, 2015-Ohio-1486, ¶ 9. Once this burden is
met, the nonmoving party has a reciprocal burden to set forth specific facts showing there is
some genuine issue of material fact yet remaining for the trier of fact to resolve. Id. In
determining whether a genuine issue of material fact exists, the evidence must be construed
in favor of the nonmoving party. Vanderbilt v. Pier 27, LLC, 12th Dist. Butler No. CA2013-02-
029, 2013-Ohio-5205, ¶ 8.
{¶ 15} The Ohio Supreme Court set forth the sudden medical emergency defense to
a motor vehicle personal injury action as follows:
1. "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." (Lehman v. Haynam [1956], 164 Ohio St. 595, 59 Ohio Op.
5, 133 N.E.2d 97, paragraph two of the syllabus, approved and
followed.)
2. "Where in an action for injuries arising from a collision of
automobiles the defense of the defendant driver is that he was
suddenly stricken by a period of unconsciousness, which
rendered it impossible for him to control the car he was driving
and which he had no reason to anticipate or foresee, the burden
of proof as to such defense rests upon such driver." (Lehman v.
Haynam [1956], 164 Ohio St. 595, 59 Ohio Op. 5, 133 N.E.2d 97,
paragraph three of the syllabus, approved and followed.)
Roman v. Estate of Gobbo, 99 Ohio St. 3d 260, 2003-Ohio-3655, at paragraphs one and two
of the syllabus.
{¶ 16} Cases where sudden medical emergency is raised as a defense "are not well
suited to resolution by summary judgments or directed verdicts, but must proceed to trial,
where it is incumbent upon the factfinder to determine whether the requirements of the
defense have been met." Id. at ¶ 58. In Gobbo, the factual issues to be resolved were "(1)
Was Gobbo stricken with a sudden medical emergency, and, if he was, at what point in the
sequence of events did it occur? and (2) Should Gobbo's medical past and problems with his
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heart have caused him to foresee that he was likely to suffer a heart attack while driving?"
Id. at ¶ 5. The foreseeability element of the sudden medical emergency requires an inquiry
into whether the evidence establishes that the defendant had previous experiences or
knowledge that would have warned a reasonably prudent person under the same or similar
circumstances of a likelihood of losing consciousness. See Ohio Jury Instructions, CV
Section 401.21.
{¶ 17} Boehl's deposition revealed that he was approximately 44 years old on the
date of the January accident. He was self-employed in the glass block business. A week
before the accident, Boehl suffered a concussion after being assaulted by three men and
knocked unconscious. He was treated and released by EMTs. He sought no medical
treatment but knew he was concussed because he was a former boxer. He spent the next
week at home resting. He felt better by the end of the week and decided to go to his farm in
Kentucky. He left home, stopped for coffee, then got on the interstate.
{¶ 18} Boehl began feeling lightheaded while driving on the interstate. He decided he
should get off the interstate at the next exit, some five minutes away, to "get some air." He
began feeling progressively worse as he continued towards the exit. By the time he was
exiting the interstate, Boehl described what he was experiencing as "almost overwhelming."
{¶ 19} Boehl was looking for the first parking lot he could locate, which he found at
the Butterbee's restaurant immediately off the exit. Boehl opted to reverse into the parking
space at Butterbee's. Boehl did not recall entering the parking space but did recall "going to
throw my truck into park." The next thing Boehl recalled was regaining consciousness after
impacting the McDonald's restaurant. Boehl thought he "passed out or had a seizure."
Boehl was transported to the hospital but released the same day. Later, he had an MRI,
because the police would not give him his driver's license back until he did so. "Everything
looked okay" from the MRI and Boehl was allowed to drive again. Boehl said that employees
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at the hospital thought he had a seizure. Boehl sought no medical treatment as he is "not a
big fan of doctors."
{¶ 20} Six or seven years earlier Boehl experienced lightheadedness while driving his
vehicle that resulted in him losing consciousness. Boehl thought what he experienced in that
incident was a panic attack. That incident resulted in a traffic incident where Boehl impacted
another car's bumper. Boehl did not go to the hospital but was treated by EMTs, who
released him. Boehl stated that the January accident was "much more severe" than the
earlier panic attack.
{¶ 21} After reviewing this evidence in a light most favorable to Roberts, this court
concludes that genuine issues of fact remain on the issue of foreseeability, and therefore
Boehl is not entitled to summary judgment on the defense of sudden medical emergency.3
Boehl testified concerning two medical events six or seven years apart, both of which began
with lightheadedness, led to unconsciousness, and resulted in a motor vehicle accident.
Given the apparent similarity between the two events, this court finds that there are genuine
issues for the factfinder as to whether a reasonably prudent person in Boehl's circumstances
would have anticipated the accident that would occur several minutes after Boehl decided he
needed to exit the interstate.
{¶ 22} The trial court based its conclusion on lack of foreseeability primarily on Dr.
Steiman's expert opinion. Dr. Steiman's report states in relevant part:
OPINION: The medical opinions set forth are based on my
education, training and experience as well as Mr. Boehl's history,
physical examination, and the pain and functional assessment.
The medical records were reviewed and taken into consideration.
The medical opinions are expressed to a reasonable degree of
medical probability and certainty.
3. As this issue is dispositive of Boehl's entitlement to summary judgment on the defense of sudden medical
emergency, we need not address whether Boehl met his summary judgment burden to demonstrate that he was
suddenly stricken by a loss of consciousness. However, for purposes of this opinion we presume that Boehl was
rendered unconscious during the January accident.
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Mr. Boehl's history, medical record review, and physical exam
provide sufficient and credible evidence that the most likely
explanation of his episode of unconsciousness was either
vasovagal syncope secondary to a beta-adrenergic
hypersensitivity, commonly referred to as hyperventilation
syncope or panic attack, or an isolated seizure secondary to the
recent head trauma. With either etiology, the loss of
consciousness was neither anticipated nor expected. Mr. Boehl
would not have foreseen he would lose consciousness.
{¶ 23} Expert testimony on an ultimate issue is admissible at trial. Bostic v. Connor,
37 Ohio St. 3d 144, 148 (1988). However, expert testimony is only necessary where a factual
issue is beyond the ordinary, common knowledge and experience of a lay person. Ramage
v. Cent. Ohio Emergency Servs. Inc, 64 Ohio St. 3d 97, 103 (1992).
{¶ 24} The jury instructions on the defense of sudden medical emergency provide the
following:
To decide whether [the defendant] had reasonable cause to
foresee the possibility of sudden [loss of consciousness] * * * you
should consider whether the evidence establishes that he/she
had previous experiences or knowledge that would have warned
a reasonably (cautious) (careful) (prudent) person under the
same or similar circumstances of a likelihood of such [loss of
consciousness].
Ohio Jury Instructions, CV Section 401.21.
{¶ 25} The instruction presents jurors with a subjective standard that considers what
Boehl – not a neurologist such as Dr. Steiman – would perceive under the circumstances.
Although Dr. Steiman is qualified to offer his opinion on that matter, he has no greater insight
into Boehl's thoughts in the moments before the accident than a lay person. Thus, the issue
of foreseeability necessarily becomes a credibility issue that in a case of this nature must be
resolved by a factfinder.
{¶ 26} Notably, Dr. Steiman's report fails to offer any medical explanation for why
Boehl would not have foreseen losing consciousness despite the apparent similarity to the
earlier accident. This is likely explained by the following excerpt from the report with respect
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to what Boehl told the doctor concerning the earlier accident: "Approximately 10-12 years
ago, he was driving his work truck when he became lightheaded. He bumped a vehicle in
front of his. He cannot recall whether or not he lost consciousness." (Emphasis added.)
{¶ 27} Thus, Boehl provided Dr. Steiman with facts that differed in some significant
respects from his sworn deposition testimony, i.e., Boehl told Dr. Steiman that nearly twice as
much time had elapsed between the two incidents and that he could not recall if he lost
consciousness in that earlier accident. Thus, Boehl's deposition testimony conflicts with a
factual basis of Dr. Steiman's expert opinion. For these reasons, this court concludes that
Dr. Steiman's affidavit did not establish the absence of a genuine issue of fact on the issue of
foreseeability.
{¶ 28} The trial court also found that Roberts failed to meet her reciprocal burden
under Civ.R. 56(E) to show a genuine issue of fact through contradictory medical testimony.
Boehl cites a Sixth District Court of Appeals case where the appeals court concluded that an
injured driver failed to counter the defendant's expert's medical opinion that the defendant's
sudden medical emergency was unforeseeable. Duchene v. Finley, 6th Dist. Lucas No. L-
13-1256, 2015-Ohio-387. There, the doctor opined that he had reviewed the defendant's
medical history and it contained no medical issues that would have put the defendant at a
risk of losing consciousness while operating a motor vehicle. Id. at ¶ 3. Moreover, the doctor
opined that the loss of consciousness was caused by a disease that was not clinically
apparent and that up until the moment that he lost consciousness, the defendant was
asymptomatic. Id.
{¶ 29} In Duchene there is no indication as to whether the defendant’s deposition or
affidavit were submitted in summary judgment. However, in our case, Boehl’s deposition was
in the record, and, as discussed above, contradicted facts in Dr. Steiman's report and called
into question his expert medical opinion. Therefore, because Dr. Steiman’s affidavit did not
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establish the absence of a genuine issue of fact on the issue of foreseeability, Robert’s had
no reciprocal summary judgment burden to meet.
{¶ 30} This court concludes that in a case of sudden medical emergency where, as in
this case, the issue of foreseeability is doubtful, the question should be submitted to the jury
or factfinder. We therefore reverse the trial court's grant of summary judgment in favor of
Boehl and against Roberts. Additionally, we reverse the trial court's grant of summary
judgment to Nationwide on Roberts' uninsured/underinsured coverage, as that decision was
premised on the underlying decision to grant summary judgment to Boehl. In all other
respects, the judgment of the trial court is affirmed.
{¶ 31} Judgment reversed in part, affirmed in part, and remanded for further
proceedings.
PIPER and M. POWELL, JJ., concur.
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