Schurer v. Koch

WHATLEY, Judge. Ann J. Schurer appeals the final summary judgment entered in favor of Kenneth Allen Koch in her negligence action against him for damages caused by his rear-ending her automobile while she was stopped at a red light. We reverse. In his motion for summary judgment, Koch alleged as a complete defense that he had experienced a sudden and unforeseeable loss of consciousness prior to the collision. See Tropical Exterminators, Inc. v. Murray, 171 So.2d 432, 433 (Fla. 2d DCA 1965) (“It is well settled that negligence is not chargeable against the operator of a motor vehicle who, while driving, suffers a sudden loss of consciousness from an unforeseen cause.”). Under the facts of this case, the viability of this defense was a question for the trier of fact to resolve. In support of his motion for summary judgment, Koch filed his and Schurer’s depositions, as well as their answers to interrogatories. He presented the trial court with no affidavits or depositions from members of the medical community. Further, in his deposition, Koch revealed that he had a long history of migraine and retinal problems. Koch’s self-serving statements in his answers to interrogatories that “I was unconscious before impact; I had passed out because of low blood sugar. It is the first time it has ever happened,” were not sufficient to establish the absence of a genuine issue of material fact and the entry of summary judgment in his favor. Compare Wingate v. United Services Auto. Ass’n, 480 So.2d 665 (Fla. 5th DCA 1985), in which the motion for summary judgment asserting that the driver lost control of the vehicle when he suffered an unexpected heart attack was supported by affidavits from physicians which confirmed that the driver died of a heart attack which he had no reason to expect. Accordingly, this matter is reversed and remanded to the trial court for proceedings consistent with this opinion. Reversed and remanded. FULMER, A.C.J., and SCHEB, JOHN M., (Senior) Judge, Concur.