                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                 January 24, 2013 Session

      GEORGE SMITH v. GENERAL TIRE AND EMILY ALEXANDER

                     Appeal from the Circuit Court for Sumner County
                         No. 2010CV1407       C. L. Rogers, Judge


                     No. M2012-01446-COA-R3-CV - Filed May 30, 2013


A man who was injured in a head-on collision filed suit against the woman driving the car that
hit him and the company that owned the car. The defendants filed a motion for summary
judgment, accompanied by affidavits indicating that the woman unexpectedly blacked out just
prior to the collision, probably as a result of her diabetic condition. After examining the
affidavits of medical experts for both the plaintiff and the defendants, the trial court granted
summary judgment to the defendants, holding that the driver’s loss of consciousness was
unforeseeable. The plaintiff appeals the summary judgment. We affirm the trial court.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which F RANK G.
C LEMENT, JR. and A NDY D. B ENNETT, JJ., joined.

Herbert Schaltegger, Thomas R. Lewis, Nashville, Tennessee, for the appellant, George Smith.

W. Bryan Brooks, Alisha M. Toll, Benjamin J. Miller, Nashville, Tennessee, for the appellees,
General Tire and Emily Alexander.

                                          OPINION

                                      I. T HE A CCIDENT

       At about 6:30 in the evening on January 11, 2010, George Henry Smith was driving his
work van in a left lane on Gallatin Pike when he saw a white car coming towards him as it
weaved in and out of traffic, followed by a police car with its lights on. Mr. Smith tried to
move over to the right lane, but was unable to do so because of the cars in that lane. Shortly
thereafter, his vehicle was struck head-on by the white car.
        Mr. Smith testified at deposition that a sheriff’s deputy arrived immediately after the
accident and told him not to move and that an ambulance had been called. As he was waiting
for the ambulance, Mr. Smith was able to look through his windshield into the white car. He
observed that the other driver was unconscious with her eyes closed, but that there was no
blood or any visible injury. The driver of the other car was Emily Alexander, and the car she
drove belonged to General Tire Company, a business owned and operated by her husband.

       On November 10, 2010, Mr. Smith filed a negligence complaint in the Circuit Court of
Sumner County, naming Ms. Alexander and General Tire as defendants. The defendants filed
an Answer in which they denied any negligence and alleged that the accident “was the result
of an unavoidable and unforeseen state of unconsciousness of Emily Alexander . . . .”

       When Ms. Alexander was deposed, she testified that she remembered running errands
on the day of the accident, and that her last memory before waking up in an ambulance on the
way to the hospital was coming to a red light on Gallatin Road. She stated that she had no
memory at all of the accident. Ms. Alexander also testified that she had been diagnosed with
Type I diabetes at age 24 and that she was 58 at the time of deposition. To control her
diabetes, she wears a Humalog insulin pump, which she has been using for thirty years. The
pump is programmed to give her a little bit of insulin all day long and a little bit extra after
each meal. She testified that at the time of the accident she was also taking Symlin, another
diabetic medication, before each meal.

       Ms. Alexander stated that she followed her normal routine on the day of the accident
including eating three meals, taking her medication, and exercising. She said she also checked
her blood glucose, and there were no problems. She acknowledged that she had experienced
a few episodes of light-headedness in the past from low blood sugar, but she denied that it had
ever before caused her to lose consciousness.

       Ms. Alexander was questioned more closely at a second deposition about her routine
for controlling diabetes. Among other things, she testified that her insulin pump was linked
to an alarm that goes off when her glucose level gets too low, and that she always carries
something with her that contains sugar in case she feels light-headed and/or any other
symptoms that she has learned to recognize as indicating a low glucose level.

       Additionally, she testified that she used a pen-like syringe with pre-set dosages to
administer her Symlin. She was questioned about the exact dosage of Symlin she usually took
and the dosage she took on the day of the accident, but she stated that she did not recall. Under
further questioning, she testified that she had been taking Symlin for two years prior to the
accident.




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                  II. D EFENDANTS’ M OTION FOR S UMMARY J UDGMENT

       Defendants filed a motion for summary judgment on November 30, 2011, accompanied
by a memorandum of law, a statement of undisputed facts, and the affidavits of Emily
Alexander and of Dr. Michael May, an endocrinologist who had been treating Ms. Alexander
since February of 2003. Dr. May testified that he had been informed about Ms. Alexander’s
accident and her claim that she had blacked out and had no memory of the accident.

       Dr. May’s account of Ms. Alexander’s condition and of her treatment, including her use
of the Humalog pump and Symlin, was consistent with her deposition testimony. He stated
that she “has no physical restrictions or limitations, and is fully active as school teacher and
wife.” He also stated his opinion “to a reasonable degree of medical certainty,” that “at the
time of the accident Mrs. Alexander was in a state of cognitive dysfunction as a result of a very
low blood glucose level and her diabetic condition,” and that her cognitive dysfunction made
Ms. Alexander unaware of her surroundings and unable to operate her car safely.

        Dr. May further stated that there was no way Ms. Alexander could have known that she
was going to lose consciousness because her blood glucose level probably dropped rapidly
before her alarm sounded. He concluded by stating that “I have advised Mrs. Alexander not
to drive a motor vehicle if her blood glucose level is less than 70, but I have never advised her
she could not operate a motor vehicle due to her diabetic condition.”

       Mr. Smith filed a memorandum in opposition to the motion for summary judgment,
accompanied by the affidavit of Dr. David West, a physician who stated that the prescribing
information for Symlin comes with a very strong warning. He quoted the warning from the
Physicians’ Desk Reference (2010 Edition) as follows:

       SYMLIN is used with insulin and has been associated with an increased risk of
       insulin-induced severe hypoglycemia, particularly in patients with type 1
       diabetes. When severe hypoglycemia associated with SYMLIN use occurs, it
       is seen within 3 hours following a SYMLIN injection. If severe hypoglycemia
       occurs while operating a motor vehicle, heavy machinery, or while engaging in
       other high-risk activities, serious injuries may occur. Appropriate patient
       selection, careful patient instruction, and insulin dose adjustments are critical
       elements for reducing this risk.

       Dr. West concluded his affidavit by stating, “[i]f Emily Alexander was experiencing
severe hypoglycemia, it could negatively affect her driving ability.” He did not, however, offer
any opinion as to whether or not Ms. Alexander could have known that she would suffer a
sudden and severe hypoglycemic episode while driving.


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       The trial court heard the arguments for and against the summary judgment motion and
announced its decision in an order filed on April 4, 2012. The order stated that the court had
examined the undisputed material facts and the inferences flowing from them in the light most
favorable to the non-moving party, as it is required to do when deciding a summary judgment
motion. The court concluded that the facts indicated that Ms. Alexander’s sudden loss of
consciousness and the accident resulting from it were not reasonably foreseeable and cited the
well-established principle that “[a] sudden loss of consciousness or physical incapacity while
driving which is not reasonably foreseeable to a prudent person is a defense to a negligence
claim.” McCall v. Wilder, 913 S.W.2d 150, 152 (Tenn. 1995). The court accordingly granted
summary judgment to the defendants and dismissed the plaintiff’s complaint. This appeal
followed.

                              III. T HE S TANDARD OF R EVIEW

       The requirements for the grant of summary judgment are that the filings supporting the
motion show that there is no genuine issue of material fact and that the moving party is entitled
to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Martin v. Norfolk S. Ry. Co., 271
S.W.3d 76, 83 (Tenn. 2008); Blair v. West Town Mall, 130 S.W.3d 761, 764 (Tenn. 2004);
Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993). The trial court must view the evidence in the
light most favorable to the non-moving party and draw all reasonable inferences in that party’s
favor. Stanfill v. Mountain, 301 S.W.3d 179, 184 (Tenn. 2009); Godfrey v. Ruiz, 90 S.W.3d
692, 695 (Tenn. 2002); Byrd v. Hall, 847 S.W.2d at 215.

       Consequently, summary judgment should be granted only when the undisputed facts,
and the inferences reasonably drawn from the undisputed facts, support one conclusion - that
the party seeking the summary judgment is entitled to a judgment as a matter of law. Green
v. Green, 293 S.W.3d 493, 513 (Tenn. 2009); Webber v. State Farm Mut. Auto. Ins. Co., 49
S.W.3d 265, 269 (Tenn. 2001); Brown v. Birman Managed Care, Inc., 42 S.W.3d 62, 66
(Tenn. 2001).

        A trial court’s decision on a motion for summary judgment enjoys no presumption of
correctness on appeal. Martin v. Norfolk S. Ry. Co., 271 S.W.3d at 84; BellSouth Advertising
& Publishing Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn. 2003); Scott v. Ashland Healthcare
Ctr., Inc., 49 S.W.3d 281, 285 (Tenn. 2001). We review the summary judgment decision as
a question of law. In re Estate of Davis, 308 S.W.3d 832, 837 (Tenn. 2010); Finister v.
Humboldt Gen. Hosp., Inc., 970 S.W.2d 435, 437 (Tenn. 1998). Accordingly, this court must
review the record de novo and make a fresh determination of whether the requirements of
Tenn. R. Civ. P. 56 have been met. Eadie v. Complete Co., Inc., 142 S.W.3d 288, 291 (Tenn.
2004); Blair v. West Town Mall, 130 S.W.3d at 763.




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                          IV. D RIVER’S L OSS OF C ONSCIOUSNESS

        The leading Tennessee case on the question of liability when a motor vehicle accident
is caused by a driver’s sudden loss of consciousness is McCall v. Wilder, 913 S.W.2d 150
(Tenn. 1995). The plaintiff in that case was injured by a collision with a defendant driver who
lost control of his automobile when he suffered a seizure. The trial court granted summary
judgment to the defendant, which this court affirmed, holding that “an automobile accident
resulting from an unavoidable sudden emergency, such as an epileptic seizure, negates
negligence.” McCall v. Wilder, 913 S.W.2d at 152.

      Our Supreme Court determined, however, that such cases required a more nuanced
approach than one that simply negates negligence as a matter of law whenever a driver
suddenly loses consciousness, and it accordingly adopted a rule that embodies such an
approach:

       A sudden loss of consciousness or physical capacity experienced while driving
       which is not reasonably foreseeable is a defense to a negligence action. To
       constitute a defense, defendant must establish that the sudden loss of
       consciousness or physical capacity to control the vehicle was not reasonably
       foreseeable to a prudent person. As a result, the defense is not available under
       circumstances in which 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.

McCall v. Wilder, 913 S.W.2d at 155-56; see also, Beasley v. Amburgy, 70 S.W.3d 74 (Tenn.
Ct. App. 2001); Schwandner v. Higdon, 2011 WL 1630982 (Tenn. Ct. App. Apr. 26, 2011)
(perm. app. denied Aug. 25, 2011).

       Since the question of reasonable foreseeability is central to the resolution of cases
involving sudden unconsciousness, medical testimony is critical to determine the
reasonableness of the risk presented by a medical condition that can lead to unconsciousness.
There are a number of “pertinent, non-exclusive considerations” to help the courts evaluate the
foreseeability of sudden loss of consciousness or capacity in a driving situation:

       the extent of the driver’s awareness or knowledge of the condition that caused
       the sudden incapacity; whether the driver had sought medical advice or was
       under a physician’s care for the condition when the accident occurred; whether
       the driver had been prescribed, and had taken, medication for the condition;
       whether a sudden incapacity had previously occurred while driving; the number,
       frequency, extent, and duration of incapacitating episodes prior to the accident
       while driving and otherwise; the temporal relationship of the prior incapacitating

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        episodes to the accident; a physician’s guidance or advice regarding driving to
        the driver, if any; and medical opinions regarding the nature of the driver’s
        condition, adherence to treatment, foreseeability of the incapacitation, and
        potential advance warnings which the driver would have experienced
        immediately prior to the accident.

McCall v. Wilder, 913 S.W.2d at 156.

        Applying those factors to the evidence before it, the McCall court cited the stipulated
facts that the defendant driver had suffered seizures prior to the accident and that he was aware
that he had a seizure disorder that could cause unconsciousness. The court also noted that the
driver had been diagnosed with a brain tumor and that the plaintiff’s expert physician testified
by affidavit that in light of the defendant’s condition, he took an unreasonable risk by driving
at all. The court accordingly reversed the summary judgment for the defendant driver because
there was a question of material fact as to whether it would be foreseeable to a reasonably
prudent person under those circumstances that he would lose consciousness while driving.

        The McCall court also cited with approval an earlier case, Robinson v. Moore, 512
S.W.2d 573 (Tenn. Ct. App. 1974), which involved facts similar to those in the case before us.
The defendant in that case was a bus driver who was diagnosed with diabetes in 1959, when
he began taking insulin for that condition. After sixteen years without an accident, he blacked
out behind the wheel one day and struck the plaintiff’s automobile, causing injury. The
testimony of medical witnesses suggested that the driver’s loss of consciousness was due to “a
sudden unheralded drop in blood sugar content (hypoglycemia).” Robinson v. Moore, 512
S.W.2d at 577. The case went to a jury, which found that there was no negligence on the part
of the defendant driver. This court affirmed that part of the jury verdict, noting that there was
no evidence “medical or otherwise,” that the driver’s diabetic condition rendered him unfit to
drive.1

        Robinson v. Moore stands for the proposition that a diabetic condition does not ipso
facto render an individual incompetent to drive. Thus, we must determine whether the specific
evidence presented in this case raises a question of material fact as to whether it should have
been foreseeable to a reasonably prudent person in Ms. Alexander’s position that she would
lose consciousness while driving.


        1
          Although the facts of Robinson v. Moore are similar to those in the case before us, the procedural
posture of the earlier case was different. Aside from his claim against Mr. Moore, Mr. Robinson brought a
separate claim against the Memphis Transit Management Corporation for negligent entrustment. The jury
returned a verdict for the defendant driver, but against the defendant bus company. This court found such a split
verdict inconsistent, reasoning that if Mr. Moore was competent to drive a bus, the company could not be
negligent for hiring him to do so. Robinson v. Moore, 512 S.W.2d at 578.

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                         V. S HIFTING B URDENS AND F ACTS H EREIN

       A party seeking summary judgment must demonstrate the absence of any genuine and
material factual issues. McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn.
1998) (citing Byrd v. Hall, 847 S.W.2d at 214). To be entitled to summary judgment, a
defendant moving party must either (1) affirmatively negate an essential element of the non-
moving party’s claim or (2) show that the nonmoving party cannot prove an essential element
of the claim at trial. Martin v. Norfolk S. Ry. Co., 271 S.W.3d at 83; Hannan v. Alltel
Publishing Co., 270 S.W.3d 1,9 (Tenn. 2008).

        “When the party seeking summary judgment makes a properly supported motion, the
burden shifts to the nonmoving party to set forth specific facts establishing the existence of
disputed, material facts which must be must be resolved by the trier of fact.” Staples v. CBL
& Associates, 15 S.W.3d 83, 86 (Tenn. 2000) (citing Byrd v. Hall, 847 S.W.2d at 215). If, and
only if, the moving party successfully negates an essential element of the nonmoving party’s
claim or demonstrates the nonmoving party’s inability to prove an essential element at trial, the
burden shifts to the non-moving party to at least create a dispute of fact as to the element.
Martin v. Norfolk S. Ry. Co., 271 S.W.3d at 84. If the moving party does not meet its burden,
however, there is no shifting of the burden to produce evidence, and it is premature to examine
the sufficiency of the evidence presented by the nonmoving party at the summary judgment
stage. Stanfill v. Mountain, 301 S.W.3d at 184; Hannan v. Alltel Publishing Co., 270 S.W.3d
at 7.

       Examining the facts of this case in light of the factors set out in McCall v. Wilder, we
note that Ms. Alexander had suffered from diabetes for more than half of her life, was fully
aware of her medical condition, was under a doctor’s care, and had been taking the medication
he prescribed to keep it under control. Further, she testified that while she had previously
experienced a few episodes of light-headedness caused by low blood sugar, it had never before
caused her to lose consciousness. Ms. Alexander also testified that on the day of the accident
she had followed her usual routine in regard to meals and the administration of diabetes
medication. Additionally, she used a pump that was designed to sound an alarm if her blood
sugar got too low.

       Dr. May, who had treated Ms. Alexander since 2003, testified that her blood sugar must
have dropped too rapidly for her to become aware of it or to take steps to counteract its effects
before she lost consciousness. He also testified that he had never advised her that she could
not operate a motor vehicle due to her diabetic condition.

       By this testimony, the party moving for summary judgement, here the defendants,
provided proof that it was not reasonably foreseeable that Ms. Alexander would suffer a
sudden loss of consciousness. The burden then shifted to the plaintiff to provide specific facts

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that would establish a dispute of material fact.

        The only proof offered by Mr. Smith to controvert the evidence presented by Ms.
Alexander was the affidavit of Dr. West, who had never treated Ms. Alexander, and who
simply quoted a warning from the Physicians’ Desk Reference, that viewed in the light most
favorable to Mr. Smith and drawing all reasonable inferences in his favor, suggests that it may
be unwise for a diabetic to drive within three hours of receiving Symlin. But no evidence was
presented that Ms. Alexander had been advised of that warning, that she had ever consulted
the Physicians’ Desk Reference (a book not normally used by laypersons), or that there was
a package insert that came with the Symlin she used containing the same warning. Further, Dr.
May testified that he never placed any physical restrictions or limitations on Ms. Alexander,
or that he had advised her not to drive.

        Lacking any other proof, Mr. Smith attempts to cast doubt on Ms. Alexander’s sworn
testimony by noting that she responded to many deposition questions by “conveniently” saying
that she did not recall. For example, while she testified that she suffered some episodes of
light-headedness before and after the accident, she could not remember the dates of any of
those episodes. She also testified that she did not recall what dosage of Symlin she normally
took, how many doses were contained in her per pre-filled syringe, or the dosage she took prior
to the accident.

       But if the incidents of lightheadedness were successfully dealt with, there would have
been very little reason for her to remember the exact dates. Further, the proof showed that Ms.
Alexander stopped taking Symlin after the accident, and more than two years before the
deposition at which she was asked about it, so it should not be surprising if she did not
remember the dosage details. In short, we do not believe that any failure of memory on Ms.
Alexander’s part is sufficient to raise a material question as to whether her loss of
consciousness on the day of the accident would have been foreseeable to a reasonably prudent
person. We accordingly affirm the trial court.

                                      VI. C ONCLUSION

       The judgment of the trial court is affirmed. Remand this case to the Circuit Court of
Sumner County for any further proceedings necessary. Tax the costs on appeal to the
appellant, George Smith.




                                                          ____________________________
                                                          PATRICIA J. COTTRELL, JUDGE


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