Opinion
CIVIL ACTION NO. 00-30201-FHF.
January 30, 2002
MEMORANDUM AND ORDER
I. INTRODUCTION
The plaintiff, Joseph Langland ("plaintiff"), was seriously injured in a car crash with an employee of the United States National Park Service, and brings this tort claim against the defendant, the United States of America ("defendant"), under the Federal Tort Claims Act ("FTCA"). See 28 U.S.C. § 1346(b), 2671-2680. Before the Court is the defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56 ("Rule 56"), on the ground that the driver cannot be found negligent where the proximate cause of the accident is a sudden and unforeseen medical emergency. For the reasons stated below, the motion will be granted.
II. BACKGROUND
This case arises out of a three-car collision which occurred at approximately 11:30 a.m. on August 2, 1999, in Wellfleet, Massachusetts. It was a clear, sunny day. National Park Service Officer James Sullivan ("Sullivan") was driving south on Route 6 when he lost consciousness as a result of a previously undiagnosed brain tumor. Sullivan's vehicle crossed into the northbound lane, colliding head-on with the plaintiff, Joseph Langland, an 82 year-old retired professor of English at the University of Massachusetts at Amherst. Mark Worgaftik was driving north on Route 6 immediately behind Langland's vehicle, and struck it after the initial collision between Langland and Sullivan. It is not alleged that the plaintiff's driving was negligent. The plaintiff suffered several broken bones, lacerations, and bruises. He was hospitalized for seven days, and spent eighteen days in a rehabilitation facility.
Wellfleet Police Patrolman Ronald Fisette prepared a report regarding the accident, in which two witnesses report that they saw Sullivan's vehicle travel into the opposite lane and collide with the plaintiff's vehicle, but discerned no other erratic operation by Sullivan prior to the accident. Officer Fisette stated that he detected no evidence of alcohol or drugs present in any of the vehicles. Neither Sullivan nor the plaintiff could recall what happened prior to the accident. Sullivan was cited with a civil penalty for a marked lane violation, which carries a $100 civil fine. See Mass. Gen. Laws ch. 89, § 4A.
Shortly after the accident, Dr. Jonathan Greco ("Dr. Greco"), Sullivan's family doctor, sent him for an MRI, which revealed an extremely large, bifrontal anterior falx meningoma brain tumor with a great deal of bifrontal edema. On August 23, 1999, surgery was performed to remove the tumor, which was found to be benign. Although Sullivan's tumor was not diagnosed until after the accident, his medical history prior to that date was not unblemished. Beginning in late spring of 1999, for example, Sullivan began to have problems with his left leg. Specifically, he stated that he was dragging the leg, resulting in an unsteady gait. Dr. Greco referred him to a podiatrist, who determined that the problems related to bone spurs, and prescribed physical therapy for gait training. In addition, Sullivan's fine motor coordination in his hands decreased, especially in his left hand. During this same time period, Sullivan experienced unusual fatigue, as a result of which Dr. Greco sent him for a lyme disease test, which was negative. Moreover, he experienced bladder problems which required him to urinate more frequently. He also reported that he had occasional headaches that were alleviated by taking aspirin. His headaches, however, were no more frequent in 1999 than in the previous two years. Overall, he observed that he was "not . . . feeling right" between April and August 1999. Prior to the accident, he was on blood pressure medicine and Naprosyn, an anti-inflammatory, for the bone spurs.
As a result of these symptoms, Sullivan avoided participation in activities related to physical conditioning, such as hiking or working in the garden. However, he did not miss any time from work, and experienced no problems with operating a motor vehicle. Significantly, Sullivan never experienced a lapse of consciousness or incapacitating physical seizure prior to the accident. In addition, none of Sullivan's treating physicians ever advised him not to drive prior to the accident.
As to his overall health on the day of the accident, Sullivan noted that his gait problem was no worse on the day of the accident than on other days. He had no headache, vision problems, or hearing problems on that day. Sullivan recalled that, on the day of the accident, he was traveling on Cape Cod's Route 6 from the Air Force station to the Marconi Unit. It was an uneventful drive with ideal driving conditions. However, Sullivan could not recall the events immediately prior to the accident. The next thing he knew, the airbag was wrapped around his head. He recalled hearing the sound of the crash and sirens, and he spoke to Officer Fisette while still in the car. He was then placed on a backboard and taken to the hospital. He notes that his gait problem and bladder problem disappeared the first day after his brain surgery.
III. STANDARD OF REVIEW
In evaluating a motion for summary judgment, the Court reviews the record evidence "in the light most flattering to the nonmovant and indulge[s] all reasonable inferences in that party's favor." NASCO, Inc. v. Public Storage, Inc., 29 F.3d 28, 32 (1st Cir. 1994) (quotations and brackets omitted). Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "In this context, 'genuine' means that the evidence could resolve the point in favor of the nonmoving party, while 'material' means that the fact has the potential to affect the outcome of the suit under the applicable law." NASCO, Inc., 29 F.3d at 32 (quotations, citations and emphasis omitted).
IV. DISCUSSION
The defendant now moves for summary judgment, arguing that Sullivan cannot be found negligent where he lost control of his car due to an unforeseeable medical emergency. The plaintiff counters that Sullivan's loss of consciousness was reasonably foreseeable because, in the months prior to the accident, he experienced common symptoms of a brain tumor. Because Sullivan should have known, based upon these symptoms, that he was likely to be subject to such a lapse of consciousness, the plaintiff contends that his decision to operate a motor vehicle can be the basis for negligence.
The FTCA is a limited waiver of sovereign immunity which limits the liability of the United States to injuries or property losses caused by the negligent act or omission of any employee of the government while acting within the scope of his office or employment. 28 U.S.C. § 1346(b). The Court will apply the law of the state in which the cause of action arose, here Massachusetts, to ascertain whether such liability exists. See id.
Under Massachusetts law, it is well established that "a sudden and unforeseeable physical seizure rendering an operator unable to control his motor vehicle cannot be termed negligence." Carroll v. Bouley, 156 N.E.2d 687, 689 (Mass. 1959). However, even in the event of a medical emergency, the operation of a motor vehicle may be the basis for negligence when the operator knew or should have known that he was likely to be subject to an incapacitating physical seizure. Ellingsgard v. Silver, 223 N.E.2d 813, 815-16 (Mass. 1967); see McCall v. Wilder, 913 S.W.2d 150, 155-56 (Tenn. 1995) (liability may attach in case of medical emergency where "defendant was made aware of facts sufficient to lead a reasonably prudent person to anticipate that driving in that condition would likely result in an accident.") Specifically, liability may still be found in two types of circumstances: (1) the operator suffers from a condition which indicates, "from a medical viewpoint, a fairly immediate likelihood that it will result in an attack rendering him unconscious"; and (2) the operator suffers warning symptoms of a physical failure during actual operation, but neglects to heed such warnings and continues to operate the vehicle. Ellingsgard, 223 N.E.2d at 816.
The Court observes that it is unclear whether the Massachusetts courts have, in fact, adopted this rule. See Ellingsgard, 223 N.E.2d at 815 (stating "even if we were to adopt that rule . . . .") However, the Court will proceed with this analysis because both parties assume that the rule applies.
In Ellingsgard v. Silver, the driver of a boat suffered a heart attack and lost control of the boat, striking the dock, thereby injuring the plaintiff. Id. at 814-15. Prior to this accident, the defendant suffered four other heart attacks, the most recent occurring within eight months of the accident. Id. at 815. However, he never lost consciousness during or after any of the heart attacks, and on each occasion was capable of seeking medical attention. Id. at 816. At trial, his physician testified that it was "likely" that the defendant would experience subsequent heart attacks, and that he never advised the defendant not to drive motor vehicles. Id. The court held that the defendant was not negligent for operating a motor vehicle under these circumstances. Id. Although it was foreseeable that the defendant would continue to suffer from heart attacks similar to the previous ones, the court reasoned:
There was no evidence that [the defendant] had ever suffered a lapse of consciousness as a result of his heart condition, or that he was physically unable to stop what he was doing without mishap and call a doctor when the symptoms occurred. Nor was there any medical testimony that his next attack was likely to be severe and incapacitating.Id. Absent such evidence, the plaintiff could not recover.
Here, the Court will grant the defendant's motion for summary judgment because there is insufficient evidence to warrant a jury finding that Sullivan's loss of consciousness while driving was foreseeable. It is true, as the plaintiff contends, that he suffered from various ailments during the several months prior to the accident. However, it is undisputed that Sullivan's brain tumor had not been diagnosed at the time of the accident. Moreover, like the Ellingsgard defendant, he had never lapsed into unconsciousness as the result of these symptoms, and none of his treating physicians ever advised him that driving would pose a danger to himself or to others. Ellingsgard, 223 N.E.2d at 816. Finally, in light of Ellingsgard, even if Sullivan had experienced far more serious health problems, such as a history of heart attacks, a jury could not find that he knew or should have known that he had a condition with "a fairly immediate likelihood that it will result in an attack rendering him unconscious." Id.
The plaintiff argues that the symptoms experienced by Sullivan prior to the date of the accident should have put a reasonably prudent person on notice that loss of consciousness was likely "since they included classic brain tumor-related symptoms" including weakness of one side, unsteady gait, increased frequency of urination and fatigue. See, e.g., American Brain Tumor Association, A Primer of Brain Tumors (7th ed. 2001), at http://www.abta.org (listing symptoms of frontal lobe tumor as one-sided paralysis, seizures, short-term memory loss, impaired judgment, urinary frequency and urgency, and gait disturbances). This argument, however, misses the mark. Prior to his accident, Sullivan had no reason to know that these symptoms were caused by a brain tumor. Before he lost consciousness for the first time on August 2, 1999, a reasonably prudent layman could have mistaken these symptoms for a series of unrelated, relatively innocuous maladies. Sullivan, however, did not rely solely upon his own judgment, but instead sought the advice of several medical professionals, none of whom were able to divine the source of his symptoms. Ultimately, the Court cannot conclude that a reasonably prudent person in the defendant's position should have known that he had a brain tumor when the physicians he consulted were unable to arrive at the correct diagnosis prior to the date of the accident.
V. CONCLUSION
Accordingly, the Court GRANTS the defendant's motion for summary judgment.
It is So Ordered.