Opinion
A102120.
10-9-2003
CATHLEEN A. PLATT, Plaintiff and Appellant, v. DAVID JOEL BERGER, Defendant and Respondent.
Cathleen A. Platt appeals from a judgment dismissing her wrongful death suit against David Joel Berger. The suit arose from an automobile accident caused when Berger suffered a sudden epileptic seizure, lost control of his vehicle, and fatally injured Platts brother. Platt contends that Berger should have been deemed liable under a statute making "persons of unsound mind" liable for their torts without regard to fault. We find the statute inapplicable, and affirm the judgment of dismissal.
BACKGROUND
Platts brother, Jeffrey Ireland, died of injuries sustained when he was struck by a car driven by Berger. As Irelands sole heir, Platt sued Berger for wrongful death. The parties stipulated to a bifurcated trial in which Bergers special defense that the accident resulted from his unanticipated physical illness, not from any negligence on his part, was tried first by the court. The parties agreed that Bergers special defense would apply unless he was a "person of unsound mind" at the time of the accident, for purposes of Civil Code section 41.,
All further statutory references are to the Civil Code, unless otherwise noted.
Section 41 reads as follows: "A person of unsound mind, of whatever degree, is civilly liable for a wrong done by the person, but is not liable in exemplary damages unless at the time of the act the person was capable of knowing that the act was wrongful."
The court trial proceeded on the following stipulated facts:
On April 16, 2001 defendant David Berger was driving eastbound on Menlo Avenue in Menlo Park, California. Berger came to a stop for a red light in the right lane at the corner of Menlo Avenue and El Camino Real. While stopped, Berger experienced a grand mal seizure as a result of epilepsy. While Bergers traffic light was still red, as a result of this seizure, his automobile accelerated forward into and across the intersection a distance of approximately 110 feet until it struck the Subaru automobile stopped in the intersection waiting to turn right onto Ravenswood. The Subaru was in the right turn lane on northbound El Camino Real. The Subaru driver had a green traffic signal light but stopped to allow Jeffrey Ireland, a pedestrian who was walking southbound in the crosswalk on the east side of the intersection, to pass. Ireland was crossing the street with a green light. Bergers vehicle struck Ireland causing fatal injuries.
The record for the court hearing consisted of the deposition testimony of Platts medical expert, Richard Gravina, M.D., and the exhibits thereto. The parties stipulated that Dr. Gravina: (1) was a board certified neurologist licensed to practice medicine in the state of California; (2) had treated patients with epilepsy; and (3) met the qualifications to testify as an expert medical witness.
Dr. Gravina concurred with the opinion of Bergers medical expert that the epileptic grand mal seizure Berger experienced on April 16, 2001 was a sudden and first onset of a generalized seizure that Berger had no reason to anticipate, and which rendered it impossible for him to control his car. Gravina further testified that such a seizure causes a disruptive electrical storm in the brain and prevents the individual experiencing it from responding to external stimuli. Berger was incapable of controlling his vehicle during his seizure because his brain function became abnormal. Gravina opined that the mind is a product of the brain and, if the brain does not function due to a seizure, the mind is impaired and "unsound."
Accepting the truthfulness of Dr. Gravinas testimony, the trial court nonetheless found section 41 inapplicable, and entered judgment in favor of Berger. This timely appeal followed.
DISCUSSION
The sole issue presented by this appeal is whether Bergers epileptic seizure made him "a person of unsound mind" for purposes of section 41. If so, then Berger can be held civilly liable for causing Mr. Irelands death without any proof of negligence on his part.
Platt argues that the words "[a] person of unsound mind, of whatever degree" must be given a broad construction to encompass any mental impairment, whether neurological, organic, or psychiatric in nature, and however transient or permanent in duration. Thus, a person suffering from any brain disease or disorder must, in Platts view, be classified as a person "of unsound mind." In support of this expansive construction of section 41, Platt cites Bashi v. Wodarz (1996) 45 Cal.App.4th 1314 (Bashi).
Bashi arose from an automobile accident. The defendant rear-ended one vehicle and then, after leaving the scene of that accident, crashed into the plaintiffs car a short time later. (Bashi, supra, 45 Cal.App.4th at p. 1316.) The defendant had engaged in bizarre behavior before and after the second collision, and claimed she had lost control of her actions due to mental illness. (Ibid.) Plaintiffs sued her for negligence. (Ibid.) Before trial, defendant successfully moved for summary judgment on the ground that the plaintiffs injuries resulted from defendants sudden, unanticipated mental disorder, and not from any negligence on her part. (Id. at p. 1317.)
The Court of Appeal reversed. The court first observed that California follows the rule stated in Cohen v. Petty (D.C. Cir. 1933) 65 F.2d 820 (Cohen) that "`. . . one who is suddenly stricken by an illness, which he had no reason to anticipate, while driving an automobile, which renders it impossible . . . to control the car, is not chargeable with negligence." (Bashi, supra, 45 Cal.App.4th at p. 1319, quoting Cohen, supra, at p. 821.) The defendant in Bashi urged that the Cohen rule be extended to any illness, without distinction between physical and mental illness. (Ibid .) The Court of Appeal declined to do so, citing the widely followed common law principle, codified by statute in California in section 41, that mentally ill and mentally disabled persons are liable for conduct that does not conform to the standards of a reasonable person. (Id. at pp. 1320-1322.) The court also found no basis for "barring mental illness as a defense to negligence but allowing sudden mental illness as a complete defense." (Id. at p. 1323.)
Bashi does little to advance Platts position. The defendant in Bashi asserted a sudden onset of mental illness. She did not claim any form of brain disease, neurological condition, or other physical disorder. The court took great pains in Bashi to distinguish between unforeseen physical conditions, such as a sudden heart attack or fainting, which the case law has consistently treated as negating liability, and the onset of mental illness, to which the common law continues to attach liability. (Bashi, supra, 45 Cal.App.4th at pp. 1319-1324.) In this case, Platts own expert conceded in his deposition that although Bergers epilepsy included a mental component, it was properly labeled a "medical condition" or "physical illness" that would not be treatable by a psychiatrist.
As the court noted in Bashi, the common law distinction between mental and physical illness is reflected in the Restatement Second of Torts, sections 283 B and 283 C which provide, respectively, that "insanity or other mental deficiency" does not relieve the actor from liability for negligence, but if an actor is "ill or otherwise physically disabled" the standard of conduct to which he must conform is that of a reasonable person with a like disability. (Bashi, supra, 45 Cal.App.4th at pp. 1321-1322.)
The American Law Institutes most current formulation maintains this distinction and includes commentary stating that modern cases are unanimous in classifying an epileptic seizure as a physical illness, not a mental illness. Section 11, subdivision (b) of the draft Restatement Third of Torts states that "[i]f an actor engages in substandard conduct because of sudden incapacitation or loss of consciousness brought about by physical illness, this conduct constitutes negligence only if the sudden incapacitation or loss of consciousness was reasonably foreseeable to the actor." (Rest.3d Torts, General Principles (Tent. Draft No. 1, 2001) § 11, subd. (b).) In contrast, section 11, subdivision (c) states that an "actors mental or emotional disability is not considered in determining whether [the actors] conduct is negligent." (Id., § 11, subd. (c).) Comment d to section 11 states that "[s]udden incapacitation can be caused by a heart attack, a stroke, an epileptic seizure, diabetes, or other medical conditions." The reporters note to comment d states that "[t]he modern cases are impressively unanimous in accepting the rule that the party does not bear liability if the partys substandard behavior is due to an unforeseeable seizure or loss of consciousness." (Italics added.)
California case law provides no exception to the general rule of nonliability in cases of sudden, unforeseeable epileptic seizure. Hammontree v. Jenner (1971) 20 Cal.App.3d 528 was a suit to recover for damages sustained when the defendant became unconscious during an epileptic seizure and lost control of his car. (Id. at p. 529.) On appeal from a defense verdict, the appellate court held that the trial court properly refused an instruction that a driver is legally liable for injuries caused by his sudden seizure or health failure. (Id. at p. 531.) The court held such an instruction to be at odds with a series of California appellate decisions applying the Cohen rule to accidents caused by sudden illnesses such as fainting, unconsciousness brought on by sharp pain, or heart attacks. (Ibid.) Platt cites no other California case involving accidents caused by a defendants epileptic seizure.
Platt cites Mullen v. Bruce (1959) 168 Cal.App.2d 494 (Mullen) and Waters v. Conselho Supremo etc. (1918) 38 Cal.App. 360 (Waters). Neither is persuasive. Mullen involved an alcoholic sanitarium patient in delirium tremens who violently assaulted a nurse trying to restrain her. The defendant in Mullen made no claim that the attack was caused by a sudden illness. Although observing in passing that the defendant came under section 41, the court made it clear that it viewed her behavior as a form of insanity, not as a physical illness. (See Mullen, at pp. 496-497.) In Waters, the appellate court held that a person who gradually became insane due to a brain tumor was not of sound mind when he changed the beneficiary on his life insurance policy. (Waters, at p. 361.) It was the loss of the decedents sanity, not the incidence of his tumor or episodes of seizure that determined whether he was of sound mind. (Id. at pp. 361-362.)
Lacking any appreciable case law support, Platt makes the statutory argument that the words "person of unsound mind, of whatever degree" demonstrate a legislative intent to include persons suffering from medical conditions like epilepsy that can interfere with normal brain function, however briefly. We reject this view for several reasons.
First, the case law teaches us that section 41 was intended simply to codify the common law rule that insane persons are liable for compensatory but not exemplary damages arising from their torts. (See Mullen, supra, 168 Cal.App.2d at p. 496 and cases cited therein; Ellis v. DAngelo (1953) 116 Cal.App.2d 310, 313.) Platt has furnished neither case law nor legislative history suggesting any different or additional intention. (Cf. § 5 [provisions of the 1872 Civil Code to be construed as continuations of common law, not as new enactments].)
Second, the words "of whatever degree" in section 41 are most reasonably construed to mean that even persons with the most severe mental illnesses, who are therefore least blameworthy for the harm they cause, must answer for the damages they cause. Platts theory that these words were intended to liberalize the standard for imposing liability without fault is unpersuasive. Section 41 provides an exception to the general policy of tort law that liability requires fault. An interpretation expanding that exception to cover a wider class of actors with milder disabilities must be disfavored.
Third, most physical illnesses that can cause a sudden blackout or loss of motor control could be said to involve an impairment of ordinary brain function. Heart attacks and fainting would fall into this category. The sweeping definition of "unsound mind" that Platt argues for would eviscerate Californias common law rule that an actor is not liable for damages caused by his sudden, unforeseen physical illness.
Finally, Platts interpretation would lend the phrase "unsound mind" a different meaning in section 41 than it carries in closely related statutory contexts. Section 41 is grouped with three other sections in Division 1, Part 1 of the Civil Code under the heading, "Persons With Unsound Mind." Section 38 provides that "[a] person entirely without understanding has no power to make a contract . . . ." Section 39 provides that a contract with a person of unsound mind is subject to rescission, and that a rebuttable presumption that a person is of unsound mind arises "if the person is substantially unable to manage his or her own financial resources or resist fraud or undue influence." Section 40 provides that after the incapacity of a person of unsound mind has been judicially determined, that person loses the power to contract until his or her restoration to capacity. When the Legislature used the phrase "unsound mind" in these sections it surely did not mean that persons with epilepsy had no power to contract. To argue that the Legislature did mean to include epileptics when it referred to persons of unsound mind in section 41 seems highly implausible. (See Outdoor Resorts etc. Owners Assn. v. Alcoholic Beverage Control Appeals Bd. (1990) 224 Cal.App.3d 696, 701 [generally accepted tenet of statutory construction that the same words used in related statutes are to be given the same meaning].)
Probate Code requirements for showing that a person is of "unsound mind" are also wholly inconsistent with Platts theory that the category encompasses medical conditions like epilepsy. The Probate Code requires severe and persistent deficits in mental functioning. (Prob. Code, §§ 810, 811.) The mere diagnosis of a mental or physical disorder is insufficient. (Prob. Code, § 811, subd. (d).)
Accordingly, the trial court correctly ruled that section 41 is inapplicable in this case.
DISPOSITION
The judgment is affirmed.
We concur: Marchiano, P.J. and Stein, J.