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Florida Third DCA reverses directed verdict for defendant in motor vehicle negligence rear end collision case, finding jury could have reasonably inferred negligence despite evidence that defendant was unconscious at the time of the collision

On May 5, 2021, in Hernandez v. Mishali, No. 3d19-1544, the Florida Third DCA reversed a directed verdict entered by a Circuit Judge for the defendant in a motor vehicle rear end collision negligence case. The Circuit Judge, who had not presided over the preceding trial which had returned a verdict for the plaintiff, premised the directed verdict on the conclusion that the plaintiffs had lacked competent substantial evidence to refute the defendant’s claim that the accident occurred because he had a sudden loss of consciousness. The Third DCA noted that a presumption of negligence arises in rear end collision cases which shifts the burden to the defendant to explain his or her inability to avoid the collision, see Ortlieb v. Butts, 849 So. 2d 1165, 1168 (Fla. 4th DCA 2003), but the presumption can be rebutted by the defense of a sudden and unexpected loss of consciousness, citing Wingate v. United Servs. Auto. Ass’n, 480 So. 2d 665, 666 (Fla. 5th DCA 1985) (“It is well established that the unforeseeable loss of consciousness while driving is a complete defense to the charge of negligence.”); Goodis v. Finkelstein, 174 So. 2d 600, 603 (Fla. 3d DCA 1965) (“It is recognized that a loss of consciousness while driving is a complete defense if such loss was not foreseeable”). However, the Court additionally noted that once the presumption is rebutted, the jury issue is not resolved. Instead,“the presumption is reduced to the status of a permissible inference of negligence from which a jury may, but is not required to, find negligence on the part of the rear driver,” quoting Birge v. Charron, 107 So. 3d 350, 361 (Fla. 2012). The question in this case was thus whether, viewed in the light most favorable to the prevailing plaintiff, the evidence was such that jury could have reasonably inferred that the defendant was negligent. The Third DCA distinguished a case relied upon by the defendant, Marcum v. Hayward, 136 So. 3d 695 (Fla. 2d DCA 2014),becausethe evidence in Marcum undisputedly and conclusively established that the defendant lost consciousness while driving because of a seizure, whereas in this case there were facts in evidence from which the jury reasonably could have concluded that the defendant neither lost consciousness nor experienced a syncopal episode prior to the collision.