Court of Appeals of Ohio, Twelfth District, Clermont
SHIRLEY L. ROBERTS, Plaintiff-Appellant,
SCOTT BOEHL, et al., Defendants-Appellees.
APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No.
O'Connor, Acciani & Levy, LPA, Wesley M. Nakajima,
P. Bolek, for defendant-appellee, Scott Boehl.
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.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
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
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
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.
10} Roberts appeals and raises the following