Kollerbohm v. County of Los Angeles

Filed 3/5/07 Kollerbohm v. County of Los Angeles CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from an order of the Superior Court for the County of Los Angeles entering judgment notwithstanding the verdict. Lisa Hart Cole, Judge. Affirmed.

Kohrs & Fiske, Conrad Kohrs, Kenneth P. Scholtz and J. Peter Fiske for Defendants and Appellants.

Law Offices of Joseph R. Zamora and Joseph R. Zamora for Plaintiff and Respondent.

_________________________

SUMMARY

A deputy sheriff employed by the County of Los Angeles caused an accident when he fell asleep at the wheel of his vehicle. The deputy was later diagnosed with severe sleep apnea. A jury trial in the subsequent lawsuit brought by a motorist injured in the accident ended with a special verdict finding no negligence, the jury concluding the deputy was disabled by a sudden or unexpected physical condition which he could not reasonably have anticipated. The trial court granted the motorists motion for judgment notwithstanding the verdict, as well as his motion for a new trial, and the deputy and County appealed. Because there was insufficient evidence the deputy fell asleep suddenly or without warning, we affirm the order granting the motorist judgment notwithstanding the verdict.

FACTUAL AND PROCEDURAL BACKGROUND

On June 7, 2002, Julio Kollerbohm was injured in an automobile accident that occurred when a deputy sheriff for the County of Los Angeles, Ernesto Masson, acting in the course and scope of his employment, fell asleep at the wheel and ran into Kollerbohms vehicle and other vehicles that were stopped in traffic on the Santa Monica freeway. Masson failed to stop while traveling in excess of 60 miles per hour. Kollerbohm sued Masson and the County. In defending against liability, Masson claimed he was stricken by an illness he had no reason to anticipate, making it impossible for him to control his vehicle. Therefore, Masson asserts, he is not chargeable with negligence. Massons defense was founded on a disorder known as obstructive sleep apnea, which was diagnosed after the accident. A jury trial elicited the following facts, among others.

Obstructive sleep apnea is a medical condition which causes throat tissue to close up during sleep, blocking a persons ability to take in air. (Apnea is the cessation of breathing.) When this condition occurs, the person briefly wakes up, or rises to a lighter stage of sleep, so that breathing resumes. As a consequence, the person experiencing sleep apnea, despite spending adequate amounts of time sleeping, does not reach the deeper stages of restorative sleep, and is in a state of continuous sleep deprivation. Sleep apnea is characterized by, among other symptoms, excessive daytime sleepiness and loud snoring. Excessive sleepiness refers to being inappropriately sleepy for somebody that has spent their normal amount of time in bed sleeping.

At the time of the accident, Masson was unaware he suffered from sleep apnea. The condition was only discovered while Masson was hospitalized after the accident. However, for at least a year before the accident, Masson felt tired, run down and fatigued. In medical histories taken by the several physicians who treated him for sleep apnea after the accident, Masson reported that, during the year prior to the accident, he experienced excessive daytime sleepiness, but attributed his fatigue to the presence of a disabled child and a newborn child at home.[1] A report taken by a physician who administered a sleep study evaluating Massons condition stated: Once or twice a month the patient has come to or suddenly become alert and was found doing things without being aware of having started them or how they got there.[2]

At trial, Masson testified he had never used the term daytime sleepiness and, while he had been tired, run down and fatigued, he did not experience sleepiness at work. At his deposition, however, Masson testified that, on the day of the accident, he felt tired and sleepy. To the inquiry, And for how long had you felt sleepy before the accident?, Masson responded, I dont recall. At trial, to the question: Do you have a recollection today, sir, how long you felt sleepy before the accident?,[3]he responded, No, sir. Masson, who sustained a concussion and other injuries in the accident, remembers nothing about the accident; while he remembers passing the Staples Center, 10 miles away from the accident scene, en route to Malibu, he recalls nothing thereafter.

Dr. Michael Gold, a neurologist who testified as an expert on Massons behalf, agreed with the diagnosis of severe obstructive sleep apnea. Dr. Golds testimony included the following exchange:

Q Okay. Now, in a typical sleep apnea setting, when someone falls asleep, is it similar to our going to bed and turning off the light and drifting off to sleep?

A Thats a good question. Its usually a precipitous falling asleep.

Q By which you mean?

A Falling off a cliff to sleep.

Q A sudden thing?

A Sudden sleep. You dont get comfortable and then get drowsy and then enter stage 1 sleep. You may enter a deeper sleep immediately because youre so sleep deprived that you can have rebound sleep where you just enter a deep phase of sleep very quickly without the usual 15-, 20-minute process of going asleep.

Dr. Gold further observed: And so when you fall asleep, you can fall asleep very suddenly and into a very deeper stage of sleep very suddenly if youre sleep deprived or quality sleep deprived. On cross-examination, this exchange occurred:

Q Is it your testimony that he was driving his car and he was wide awake, and, all of a sudden, just fell asleep like that, like blacking out?

A I think he fell asleep like that and I think he could have been wide awake beforehand. Because people with this illness, just like with narcolepsy, can just drop off to sleep and not have a warning, just like sometimes people can do that when they become hypnotized at the wheel. They just drop off.

Q This man wakes up in the morning, hes tired, hes in a constant state of sleep deprivation, and hes feeling, to use a medical term, excessive daytime sleepiness. And just before he falls asleep, he becomes wide awake? Is that what your testimony is?

[An objection was overruled.]

The Witness: No, I didnt say that. I said that he is capable of having these sudden precipitous sleep attacks where he just falls off to sleep. He may feel slightly drowsy and try and shake it off and wake himself up, and then boom, he falls asleep.

At the conclusion of the evidence, the jury was instructed to decide how a reasonably careful person would act in Massons situation. It was further instructed with Special Instruction No. 2: If you find that Dep. Ernesto Masson was disabled by a sudden or unexpected physical condition which he could not reasonably have anticipated, which rendered it impossible for him to control his vehicle, then he was not negligent.

The jury returned a special verdict, finding in answer to the first question submitted that neither Masson nor the County was negligent. Judgment was entered on the special verdict. Kollerbohm moved for judgment notwithstanding the verdict and for a new trial. After a hearing, the trial court granted both motions. In granting judgment notwithstanding the verdict, the court set aside the verdict based on (1) insufficient evidence to justify the verdict, and (2) the courts error in law in allowing the defendants, over the plaintiffs objection, to introduce evidence which contradicted their admission that Masson was working his second shift of the day when the accident occurred. [4] As to the first ground, the court explained it had found that Special Instruction No. 2 was justified, although evidence in support of the defendants theory was slight and opposed by a preponderance of the evidence. The court continued:

Upon consideration of all the evidence presented at trial, there was insufficient evidence to justify the jurys verdict of no negligence . . . .  It was undisputed that sleep apnea itself does not cause a sudden attack, as opposed to an epileptic seizure [citation] or a heart attack [citation]. A reasonably careful person would not undertake the task of driving if they were sleepy. It is not uncommon for drivers to become tired while driving. But the reasonably careful person whose eyelids begin to close while driving would be expected to pull over to the side of the road. Dep. Masson continued to drive knowing he was tired, having had occasional periods of unexplained oblivion, and realizing that he had been significantly fatigued for an extended period. Falling asleep under such circumstances could have, and should have, been reasonably anticipated and avoided. Viewing the evidence in a light most favorable to the defendants, there is no substantial evidence to support the jurys special verdict of no negligence.  []  This court is convinced, after weighing the evidence from the entire record, including reasonable inferences therefrom, that the jury clearly should have reached a different verdict.[5]

The order granting Kollerbohms motion for a new trial likewise found insufficient evidence to justify the jurys verdict, and the court made an error in law in allowing defendants to introduce evidence contradicting their admission that Masson had worked two shifts on the day of the accident. Its analysis was identical to that in its order granting judgment notwithstanding the verdict.

Judgment was entered in favor of Kollerbohm on the issue of negligence only. The County and Masson filed a notice of appeal from the judgment notwithstanding the verdict and from the order granting Kollerbohms motion for a new trial.

DISCUSSION

A judgment notwithstanding the verdict is proper only when it can be said as a matter of law that no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that the reviewing court would be compelled to reverse it . . . as a matter of law . . . . (Moore v. City & County of San Francisco (1970) 5 Cal.App.3d 728, 733.) In this case, the verdict finding Deputy Masson was not negligent necessarily depended on a finding that he was disabled by a sudden or unexpected physical condition which he could not reasonably have anticipated . . . . We conclude this finding is sufficiently lacking in evidentiary support that reversal is compelled as a matter of law. Consequently, the trial court properly granted Kollerbohms motion for judgment notwithstanding the verdict.[6]

We review first the applicable legal principle, and then explain why the evidence supporting its application in this case is deficient as a matter of law.

In California, the cases generally hold that a driver, suddenly stricken by an illness rendering the driver unconscious, is not chargeable with negligence. (Bashi v. Wodarz (1996) 45 Cal.App.4th 1314, 1319 [declining to extend the rule to a sudden and unanticipated mental illness].) The rule has been applied in several cases in California since 1942, and the law is similar in other jurisdictions. For example:

        In Waters v. Pacific Coast Dairy, Inc. (1942) 55 Cal.App.2d 789 (Waters), the Court of Appeal stated: It is undoubtedly the law that one who is suddenly stricken by an illness, which he had no reason to anticipate, while driving an automobile, which renders it impossible for him to control the car, is not chargeable with negligence. [Citations.] (Id. at p. 792.) In Waters, the driver testified he did not go to sleep and did not have a heart attack, but became unconscious as he lifted his foot to put on the brake and recalled nothing thereafter. (Id. at pp. 791-793.) In Waters, the trial courts verdict for the plaintiff was affirmed. The Court of Appeal observed that, assuming the testimony of the driver was true, it did not go far enough, as there was no proof of what caused the attack, how long the driver suffered from that cause, or why the driver had no reason to anticipate the attack, and [s]uch proof should have been produced by the defendants. (Id. at pp. 792-793.) The court concluded the trier of facts determination was controlling on appeal. (Id. at p. 794.)

        In Ford v. Carew & English (1948) 89 Cal.App.2d 199, the Court of Appeal held substantial evidence supported the jurys implied finding that the drivers sudden loss of consciousness, caused by strained heart muscles, was unanticipated. (Id. at pp. 203, 205.) Evidence was presented that the driver was 67 years old and had a falling spell three months before the accident; a policeman testified that, after the accident, the driver stated he had had prior dizzy spells, which the driver denied; and a year earlier, the driver had an accident, as to which a policeman testified the driver stated he did not know what happened (but the driver denied the statement and explained the cause of the prior accident). The court concluded that evidence supported either conclusion: the attack should have been anticipated and the jurys contrary determination. (Id. at p. 204.)

        In Hammontree v. Jenner (1971) 20 Cal.App.3d 528, the Court of Appeal affirmed a jury verdict for a defendant driver who claimed he became unconscious during an epileptic seizure. The driver did not recall the accident, but testified he had a medical history of epilepsy and knew of no other reason for his loss of consciousness. For at least 12 years before the accident, the drivers condition was controlled by medication; the Department of Motor Vehicles required him to report to a doctor, who was required to advise the DMV in writing once a year of the drivers condition; and the drivers doctor testified he believed it was safe for him to drive. (Id. at pp. 531-532 [rule that liability of a driver suddenly stricken by an illness rendering him unconscious rests on principles of negligence was established law of this state and was dispositive; trial judge properly refused to instruct the jury on theory of absolute liability].[7]

In this case, the accident occurred because Deputy Masson fell asleep at the wheel of his automobile. At its core, the issue is whether one can reasonably infer from the evidence that Deputy Massons falling asleep was a sudden or unexpected physical condition which he could not reasonably have anticipated. We conclude the evidence does not permit the inference that Masson fell asleep without warning, and for that reason affirm the trial courts order granting judgment notwithstanding the verdict.

Our analysis differs from the trial courts view, which was that Masson should reasonably have anticipated falling asleep given his condition during the preceding year. Perhaps so. However, if the question were whether Masson should not have driven in the first place, because he was experiencing daytime sleepiness and increasing fatigue or tiredness for which he failed to seek medical help (and thus could reasonably have anticipated falling asleep at the wheel), it would clearly be one for the jury, and judgment notwithstanding the verdict would be improper. But, to avail himself of the defense of being disabled by a sudden or unexpected physical condition, Masson was also required to present evidence that he fell asleep suddenly or without warning. On that point, the evidence is deficient as a matter of law.

As the trial court indicated, sleep apnea itself is not a sudden or unexpected physical condition, like a heart attack. Sleep apnea, with its attendant sleep deprivation, was merely the ultimate cause for Deputy Massons falling asleep. Masson can be excused for falling asleep at the wheel if, and only if, he fell asleep without warning. The problem, of course, is that we do not know how Masson felt just before the accident, or indeed at any time after he passed the Staples Center, some ten miles away from the accident scene, because he cannot remember. We know that he was tired and that, at some point in the day, he felt sleepy. We know that he was in a constant state of sleep deprivation, and that one of the symptoms of his disease is daytime sleepiness that is excessive for someone who has spent a normal amount of time sleeping. But because Masson cannot remember, we do not know if, as the trial court described it, he was a person whose eyelids begin to close while driving and who would therefore be expected to pull over to the side of the road. Nor do we know if, as Dr. Gold suggested was possible, Masson was wide awake beforehand and dropped off to sleep without warning, the only circumstance under which his falling asleep could conceivably be considered a sudden or unexpected physical condition. But even Dr. Golds testimony was ultimately qualified. While he opined that a person with sleep apnea can just drop off to sleep and not have a warning, and is capable of having these sudden precipitous sleep attacks where he just falls off to sleep, Dr. Gold also testified that the person may feel slightly drowsy and try and shake it off and wake himself up, and then boom, he falls asleep.

In the end, the question is whether Dr. Golds testimony that Masson might have had a sudden precipitous sleep attack was sufficient, standing alone, to allow jurors to conclude it was more likely than not that Masson fell asleep without warning. We think not. Dr. Gold did not testify that sleep apnea sufferers are usually wide awake before falling precipitously to sleep. He merely testified that this can happen, and that sleep apnea sufferers are capable of having precipitous sleep attacks.[8] Massons own testimony, however, was that he had never before fallen asleep at work. In our view, one may not infer that something happened solely from testimony that it could have happened. In other words, there is simply a failure of proof as to whether Masson fell asleep without warning, and because the burden of establishing the defense fell on Masson, Kollerbohm was entitled to judgment as a matter of law.

DISPOSITION

The order entering judgment notwithstanding the verdict is affirmed and the case is remanded to the trial court for the purpose of ascertaining damages. Julio Kollerbohm is entitled to recover his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOLAND, J.

We concur:

COOPER, P. J.

FLIER, J.

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[1] A July 2002 report by Dr. Andres Giron, who treated Masson for sleep apnea, stated that Masson was aware of excessive daytime sleepiness and loud snoring for a long time but has been particularly worse over the past year. Masson testified he told Dr. Giron he was tired during the day, not that he had daytime sleepiness that was getting worse.

[2] When Dr. Giron was asked if this statement sounds like somebody who has fallen asleep at an inappropriate time before, he responded that [i]ts certainly compatible with that, uh-huh. However, when questioned about the statement, Dr. Gold testified:

I think that its describing someone who is probably sleep deprived and is to use perhaps a slang term is spacey or not attentive and may wander in a room and say, Why did I get here? or What am I doing here? or Why did I open the refrigerator? I dont think its describing that hes passed out and then wakes up.

[3] The deposition testimony was this:

Q. Okay. Prior to this incident, on the day of the accident, did you feel that you had excessive sleepiness?

A. I felt tired, yes.

Q. But did you feel sleepy at all?

A. Yes, I felt sleepy.

Q. And for how long had you felt sleepy before the accident?

A. I dont recall.

[4] In pretrial discovery, Masson and the County responded to requests for admissions, both admitting that Masson was working his second shift of the day when the accident occurred. At trial, over objection, the County presented evidence showing these admissions were erroneous, and that Masson had not worked another shift prior to the accident.

[5] As to its error of law, the court observed that: By allowing defendants at trial to contradict an admission the law deems conclusively binding, the plaintiff was denied his right to rely on the admission, and to conduct additional discovery on the issue.  []  . . . Based on this error in law, the jury was permitted to rely on evidence which should not have been admitted. [Citation.] Given that the jury specifically requested readback testimony on this specific issue, and then a short time thereafter rendered a verdict, the court finds that the error likely affected the outcome of the trial and was therefore prejudicial.

[6] This conclusion makes it unnecessary to discuss the courts order granting a new trial because, under Code of Civil Procedure section 629, the new trial order becomes effective only if the order granting judgment notwithstanding the verdict is reversed on appeal. It is likewise unnecessary to discuss whether the trial court erred in concluding that it had erroneously admitted evidence contradicting the admissions made by Masson and the County.

[7] Cases from other jurisdictions apply a similar rule. (See, e.g., McCall v. Wilder (Tenn. 1995) 913 S.W.2d 150, 155, 157 [Sudden loss of consciousness or physical capacity experienced while driving which is not reasonably foreseeable, is a defense to a negligence action. Summary judgment for the driver was reversed. Reasonable jurors could reach different conclusions as to whether the driver was acting as a reasonably prudent person in driving at the time of the accident, where the driver suffered seizures prior to the accident and was aware of medical condition causing unconsciousness]; Roman v. Estate of Gobbo (2003) 99 Ohio St. 3d 260, 272-273 [Driver suddenly stricken by a period of unconsciousness, which he has no reason to anticipate and which makes it impossible for him to control the vehicle, is not chargeable with negligence. Burden of proof of the defense is on the driver].)

[8] In their statement of facts on appeal, Masson and the County state that Dr. Gold does not know whether [Masson] was tired or sleepy just before he fell asleep at the wheel, although it is possible that he was.