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Roberts v. Boehl

Court of Appeals of Ohio, Twelfth District, Clermont

March 26, 2018

SHIRLEY L. ROBERTS, Plaintiff-Appellant,
v.
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, for plaintiff-appellant.

          David P. Bolek, for defendant-appellee, Scott Boehl.

          OPINION

          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 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 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 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 ...


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