Recently, in December of 2009, the appellate court upheld the decision of the lower trial court’s ruling. In Slone v. Ibert (2009 WL 4723135 (Ky. App.), the driver of a car was found to be not liable for the damages of the collision because he blacked out before the crash. A review of this case is to follow by car accident lawyer Andrew Alitowski.
On November 6, 2003, a Mr. Ibert was employed by Oldham’s Truck and Car Source in Lexington, Kentucky. Mr. Ibert was driving a Ford Expedition to show a potential customer. He was driving down a road when he struck Mr. Slone’s car in the rear. At the time of the accident, Mr. Slone was stopped at a red light. At the scene of the accident, Mr. Ibert reported that he lost consciousness as he approached the red light. Both drivers were taken to the hospital.
The hospital records for Mr. Ibert did show an elevated level of carbon dioxide in his blood which could be a sign of someone passing out. Also, during the trial, a Dr. Martin testified that Mr. Ibert was also falling asleep during his examination in the ER. Dr. Martin believed Mr. Ibert may have sleep apnea. This was later confirmed by another doctor a year later.
On July 11, 2004, Mr. Slone field suit alleging physical and mental injuries. He claimed he experienced a worsening of preexisting back pain, the onset of new shoulder pain which required surgery, and a worsening of a preexisting bipolar disorder. These were all claimed by his car accident lawyer.
After lengthy discovery, the case finally got to trial on July 28, 2008. After 2 days, the jury ultimately found that Mr. Ibert’s negligence caused the accident, but that immediately before the accident he became suddenly and unforeseeably incapacitated and was therefore not liable for damages. A defense verdict was then entered. The “blackout defense” was first recognized in Kentucky in 1988 in the Rogers case. In Rogers, the court stated, “[w]here a defendant demonstrates that he suddenly became incapacitated while driving, and the ensuing accident was a result thereof, and further demonstrates that the sudden incapacity was not reasonably foreseeable, he shall have a defense to any liability that would otherwise arise from the accident. (Rogers v. Wilhelm-Olsen, 748 S.W.2d 671 (Ky.App 1988).
Mr. Slone also claimed the trial court erred in not giving the right jury instructions, that evidence of a prior criminal act should not have been allowed in and that evidence of him making a threat and being hospitalized for it was all reversible error. The appellate court did not think so. The jury instructions given were correct, the prior criminal act was harmless error, and the threat and his hospitalization were relevant as he made claims of mental injuries as a result of this accident.
If you have been the subject of a car accident in Kentucky, please call and speak to a car accident lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.
If you are injured…Ask Andrew!!!