In Simpson v. Rood, 2005 VT 21 and 2003 VT 39, the Vermont Supreme Court recognized that a “sudden and unforeseen medical event that causes a loss of consciousness” could be found by a jury to be an excuse for negligence. In that case, the defendant’s expert testified that defendant had suffered from cough syncope—a sudden bout of coughing that caused defendant to lose consciousness—before defendant drove across the center line and hit the plaintiffs’ vehicle. According to the defendant, he “remembered taking a sip of his coffee, coughing, and then waking up after the collision.” In rebuttal, plaintiffs’ expert opined that defendant likely had fallen asleep. The issue was tried to the jury and it found for the defendant, apparently believing defendant’s expert over plaintiffs’.
More recently, the Michigan Supreme Court has elaborated on the elements of the sudden emergency doctrine when used to rebut a statutory presumption of negligence. In White v. Taylor Distributing Co., 753 N.W.2d 591 (Mich. 2008), a truck driver rear-ended another vehicle stopped at a red light. The truck driver claimed to have suffered a syncopal episode before the impact and that he could not remember the events preceding the collision. The court agreed that a sudden blackout could rebut a statutory presumption of negligence, but stated that the sudden emergency must be “totally unexpected.” Given that the defendant had admitted to feeling ill and suffering a bout of severe diarrhea at a rest stop prior to the accident, the court questioned whether any emergency was “totally unexpected” and, thus, sudden. Moreover, the court noted that the emergency “must not be of the defendant’s own making.”
“If defendant felt dizzy ‘a couple of minutes’ before blacking out, then perhaps his subsequent emergency was not clearly sudden under the circumstances. Further, for the sudden emergency doctrine to apply, the emergency must not be of defendant’s own making. If defendant was aware that he was not feeling well when he left the rest area but continued driving anyway because he ‘did not have far to go,’ or if defendant felt ill while driving from the rest area to the Novi Road exit, or if defendant felt ill even a few minutes before he collided with plaintiff, then the emergency may well have been of his own making.”
Earlier Vermont case law on the doctrine of sudden emergency confirms that the defense is unavailable to a defendant who contributes to the cause of the emergency. In Rich v. Hall, 107 Vt. 455, 461 (1935) the court denied the defense of sudden emergency to a defendant where “[t]he defendant was confronted with a sudden emergency but his own negligence contributed to cause the emergency.” In Mattison v. Smalley, 122 Vt. 113, 117 (1960) the defendant claimed that she suffered an unexpected brake failure. The court explained that “[t]o be an unavoidable accident as to the defendant, it must have occurred without any proximate cause on her part. The test of liability is not whether the injury was accidental, but whether the defendant was at fault.” See also French v. Nelson, 111 Vt. 386, 391 (1941) (for a defendant to invoke the sudden emergency doctrine the emergency “must not have been brought about in whole or in part by his own fault”).
In conclusion, a sudden emergency could be a complete bar to recovering compensation from a defendant; however, there are many facts to explore to test the merit of the defense.