                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                               December 7, 2010 Session

               TIMOTHY SCHWANDNER v. DANA S. HIGDON

                   Appeal from the Circuit Court for Marion County
                      No. 17758     Thomas W. Graham, Judge


                 No. M2010-00910-COA-R3-CV - Filed April 26, 2011


The driver of a car suddenly passed out, causing her vehicle to strike a stopped pickup truck
and seriously injure its driver. The pickup driver sued, and the defendant filed a motion for
summary judgment, arguing that she was not liable for the plaintiff’s injuries because her
sudden loss of consciousness was unforeseeable. Since it was undisputed that prior to the
accident the defendant had not eaten during a full day of busy activity, the plaintiff argued
that it was foreseeable that the she would lose consciousness. The trial court did not agree,
and it granted the defendant’s motion. 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, J R. and R ICHARD H. D INKINS, JJ., joined.

James R. Kennamer, Chattanooga, Tennessee, for the appellant, Timothy Schwandner.

Michael Ross Campbell, Chattanooga, Tennessee, for the appellee, Dana S. Higdon.

                                         OPINION

                             I. A N U NFORTUNATE A CCIDENT

       The essential facts about the events leading up to the accident from which this lawsuit
arose are undisputed. Only the legal consequences of those facts are at issue. At about 6:40
p.m. on November 2, 2007, a car driven by defendant Dana Higdon slammed into the rear
of a pickup truck driven by Timothy Schwander, causing Mr. Schwander to suffer serious
injury. On February 18, 2008, Mr. Schwander (hereinafter “Plaintiff”) filed suit against Ms.
Higdon (hereinafter “Defendant”) in the Circuit Court of Marion County, alleging that his
injuries were caused by Defendant’s negligent operation of her automobile.
       Defendant answered, admitting the general manner in which the accident occurred.
She denied any negligence or fault, however, asserting that the accident was unavoidable
because “[s]he was operating her vehicle in a careful manner prior to the accident and
experienced a sudden, unexpected and unforeseeable loss of consciousness prior to the
accident and would have been able to stop behind the Schwander vehicle but for her loss of
consciousness.”

        The course of discovery included requests for medical records and submission of
interrogatories. Defendant’s deposition was also taken, as well as the deposition of Dr.
Martha Ziegler, who had treated Defendant, and that of Dr. Charles Adcock, who had treated
Plaintiff. These discovery activities did not uncover any additional theories of liability or
possible defenses. Thus, the question of liability rested solely on the legal effect of
Defendant’s unexpected loss of consciousness.

       On September 23, 2009, Defendant filed a motion in limine to exclude any testimony
by Dr. Adcock regarding her loss of consciousness prior to the accident, because he had
never treated her, and Plaintiff had not disclosed his intention to use Dr. Adcock as an expert
witness. See Tenn. R. Civ. P. 26.05(1)(B); White v. Vanderbilt University, 21 S.W.3d 215
(Tenn. Ct. App. 1999). The trial court took the motion under advisement, pending further
proceedings.

        On December 15, 2009, Defendant filed a motion for summary judgment
accompanied by a statement of undisputed material facts. See Tenn. R. Civ. P. 56.03. The
motion was supported by Defendant’s affidavit and those of her husband and of her mother,
who had been riding with her as a passenger at the time of the accident. Defendant was
twenty-three years old when the accident occurred, married and with one child. She testified
that she was healthy and that she had no medical problems or conditions that would cause
her to suddenly pass out. She further stated that she had never before fainted, other than one
time when she was a child and had been given an injection or had her blood drawn at the
doctor’s office.

       According to Defendant’s affidavit and deposition, her husband was off work on the
day of the accident, so he stayed at their home in Whitwell and took care of the parties’ one
year old child while Defendant cleaned the house. Defendant did not eat any breakfast or
lunch. She testified that she did not skip those meals on a regular basis, but had done so in
the past without any problems. At 2:00 p.m., Defendant stopped cleaning and got ready to
pick up her mother, so they could go shopping for groceries together. Defendant left her
home at around 2:30 p.m. After picking her mother up at her home in Jasper, the two women
went to the Wal-Mart in Kimball, where they shopped for two or three hours.



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       They left Wal-Mart at about 6:00 p.m. to pick dinner up for themselves and for other
family members. Because everybody wanted something different, Defendant had to stop at
three nearby fast food restaurants - first to Pizza Hut for Defendant and her husband, then to
KFC for Defendant’s mother, then to Krystal for Defendant’s father. Defendant testified that
while picking up dinner at the first two stops she realized she was hungry, so when they
reached Krystal, she ordered a Krystal hamburger, some fries and a Dr. Pepper for herself.

         Defendant ate several bites of the hamburger and a couple of fries and drank some Dr.
Pepper. She then drove out of the Krystal parking lot and turned into the street. She testified
that she was going 15 or 20 miles an hour and had traveled a few hundred feet as she saw the
light at the first intersection change from yellow to red. Then things took an unexpected turn:

       Suddenly, I got hot and sweaty, and that was it. I passed out. The time lapse
       from the sensation of getting hot and sweaty to the time I passed out was no
       more than two seconds. It just hit me. I had no time to do anything. It was just
       like a heat wave that rushed through me and that was it. ‘It was daylight to
       dark.’ I do not know what happened after I passed out. When I awoke , my
       Jeep Cherokee had crashed into a guard rail, and I heard sirens and a woman
       telling me she was a nurse and not to move and other people screaming my
       name.

        Defendant’s mother testified by affidavit that Defendant was going about 20 miles per
hour and was braking for a red light when she suddenly passed out and slumped in her seat.
The car went out of control, hit Plaintiff’s truck, which was stopped at the red light, and then
ran over a curb and into a guard rail on the side of the road. The impact was violent enough
to deploy the airbags in Defendant’s car. An ambulance arrived at the scene less than twenty
minutes after the accident. Defendant suffered bruises and a fractured sternum. Defendant’s
mother suffered a broken arm. Plaintiff suffered a whiplash injury and a possible concussion,
resulting in muscle strain, numbness and persistent headaches. He was unable to work for
at least three months after the accident.

                                II. T HE M EDICAL E VIDENCE

       Plaintiff responded to Defendant’s motion for summary judgment and to her statement
of undisputed material facts on January 29, 2010. He asserted that Defendant’s sudden loss
of consciousness was caused by hypoglycemia (low blood sugar), a condition that he alleged
was a foreseeable result of her refusal to eat on the day of the accident. He attached to his
response excerpts from the depositions of Defendant and of the parties’ two treating
physicians. Plaintiff also filed the complete depositions and the medical records that were
exhibits to those depositions. The proof showed that emergency medical personnel

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performed a blood glucose stick on Defendant at the scene of the accident, and that
Defendant and Plaintiff were both transported to the Emergency Room at Grandview
Medical Center in Jasper for treatment.

       A week after the accident, Defendant went to see Dr. Martha Ziegler, her family
physician. The record from that physician visit showed that aside from her blackout and
motor vehicle accident, Defendant reported “4 episodes since MVA.” Dr. Ziegler’s initial
diagnosis was hypoglycemia. The records from the Medical Center, however, showed a
glucose reading of 82 mg. per deciliter from the blood that was drawn from Defendant after
the accident.

       Dr. Ziegler testified at deposition that such a reading was within normal limits, and
that a reading of 60 or below was the normal threshold for hypoglycemia. She also
acknowledged, however, that a low glucose reading could be brought back to normal levels
within a few minutes of eating a candy bar or drinking orange juice. Plaintiff therefore
argues that the reason the blood glucose reading taken at the scene of the accident was
normal was because by the time Defendant’s blood was drawn, the sugar from the soft drink
had reached her bloodstream.

        Plaintiff’s attorney pressed Dr. Ziegler to testify that hypoglycemia was the most
likely cause of Defendant’s loss of consciousness. But Dr. Ziegler spoke of it more as a
possibility, and said “it would be high on my list of differential diagnoses.” She noted,
however, that Defendant had no prior history of hypoglycemia or fainting, and that in 35%
to 40% of fainting episodes, the cause is never discovered.

        Dr. Ziegler had arranged for Defendant to wear a Holter Monitor for 24 hours to find
out if she had any kind of heart condition, such as an arrhythmia, that might have caused her
to faint. But the readings from the monitor did not produce any evidence of such a condition.
Dr. Ziegler also referred Defendant to Dr. Daniel Fisher, a vascular surgeon who treats
patients that report episodes of syncope or loss of consciousness.

       Dr. Fisher met with Defendant, examined her, and studied her medical records. He
subsequently executed an affidavit which Defendant submitted to the court as a supplement
to her summary judgment motion. Dr. Fisher was unable to determine the reason for the
fainting incident, but he declared that hypoglycemia could be ruled out because of
Defendant’s blood glucose level at the scene of the wreck. He also stated that, “unless she
has some unknown endocrine abnormality of which no one is aware, the missing of several
meals would not cause her blood glucose to fall to a precariously low level, because she
should have the normal insulin/glucagon ration that would maintain her blood glucose level
and prevent her from becoming hypoglycemic.”

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       Dr. Charles Adcock examined and treated Plaintiff after the accident. Dr. Ziegler and
Dr. Adcock share medical offices, but Dr. Adcock never treated Defendant. Much of Dr.
Adcock’s deposition testimony involved the injuries suffered by Plaintiff, Dr. Adcock’s
treatment of him, and the resulting medical bills. But Plaintiff’s counsel also repeatedly
asked Dr. Adcock to respond to hypothetical questions, such as, “Do you have an opinion,
based upon a reasonable degree of medical certainty, if someone is fasting to apparently lose
weight and has gone all day without eating and then gets behind the wheel of a car, whether
that person is posing unreasonable risks of passing out due to a hypoglycemic attack?” 1 Dr.
Adcock’s answer was “They might not realize it, but , yes, it would be a possibility.” These
and similar questions and answers were the ones that Defendant sought to exclude in her
motion in limine.

        The hearing on the motion for summary judgment was conducted on March 25, 2010.
Plaintiff argued that under the circumstances of the case it would be foreseeable to a
reasonably prudent person that Defendant had placed herself at risk for hypoglycemia and
for sudden loss of consciousness. Defendant argued that because she did not have any
history of fainting or of any medical condition that might lead her to suspect that she was
subject to such an occurrence, her sudden loss of consciousness could not have been
reasonably foreseen. After hearing vigorous argument from both sides, the court took the
matter under advisement, declaring that it would have to rule on the motion pretty quickly,
because the case was set for trial on April 13 and 14, 2010.

       On April 6, 2010, the court filed a Memorandum Opinion and Order, granting
Defendant’s motion for summary judgment. The court did not specifically refer to
Defendant’s motion in limine, but it stated that “[i]n order to withstand summary judgment,
the Plaintiff must bring forth some factual basis to support a finding of fact that the
Defendant knew or should have known that she might lose consciousness if she drove on the
date, place and time alleged in the complaint.” The court did not find any such fact in the
materials submitted to it, and it accordingly ruled that the essential element of foreseeability
was unsupported. This appeal followed.

                                         III. A NALYSIS

       A. The Standard of Review on Summary Judgments

      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


       1
        There was no evidence in this case that Plaintiff was trying to lose weight, or that she had
experienced a significant loss of weight over a relatively short time period.

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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, drawing 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.

       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

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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.

        B. Negligence and Foreseeability

       Plaintiff’s claim is based on allegations that Defendant acted negligently. “No claim
for negligence can succeed in the absence of any one of the following elements: (1) a duty
of care owed by defendant to plaintiff; (2) conduct below that standard of care amounting to
a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate or legal
cause.” Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn. 1993); Knowles v. State of
Tennessee, 49 S.W.3d 330, 335 (Tenn. Ct. App. 2001). This appeal involves the first two of
these elements.

        It is beyond dispute that a motorist has a duty to use reasonable care in the operation
of his or her vehicle in order to protect other drivers. But how are we to properly understand
that duty of care when a motorist’s sudden loss of consciousness or of the capacity to drive
safely causes injury? The leading Tennessee case on that question is McCall v. Wilder, 913
S.W.2d 150 (Tenn. 1995). The defendant driver in that case suffered a seizure and lost
control of his car, crashing into another vehicle and injuring the plaintiff.2 The Tennessee
Supreme Court held that under that circumstance, the question of duty is closely tied to that
of foreseeability:

        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.

        In the present case Plaintiff argues that Defendant suddenly lost consciousness while


        2
         The actual defendant in McCall v. Wilder was the executor of the estate of the driver whose sudden
incapacity caused the accident that led to the lawsuit. For the sake of simplicity, however, we refer to the
driver as the defendant.

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driving because she had skipped breakfast and lunch earlier that day. He relies on testimony
by Dr. Ziegler that she could not exclude hypoglycemia as the possible cause of the
unfortunate accident and by the testimony of Dr. Adcock which was challenged by
Defendant’s motion in limine. Whatever the cause of Defendant’s loss of consciousness, the
question is whether it was, or should have been, foreseeable to a reasonably prudent person.

       The McCall v. Wilder court listed a number of factors that might make a sudden loss
of capacity or of consciousness foreseeable.

       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 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 at156.

        The defendant in McCall v. Wilder had a brain tumor located in an area of the brain
associated with epilepsy. The tumor was not discovered, however, until after the accident,
when its existence was revealed by a CT scan and confirmed by surgery. The defendant filed
a motion for summary judgment on the basis of the sudden emergency doctrine.3 The motion
was granted by the trial court and affirmed by the Court of Appeals. Our Supreme Court
reversed, because the parties had stipulated that the defendant had suffered seizures prior to
the fateful accident. The court concluded that those earlier episodes rendered the defendant
aware of facts that made it reasonably foreseeable that another such episode could occur
while he was driving and lead to an accident. McCall v. Wilder, 913 S.W.2d at156.

       In Beasley v. Amburgy, 70 S.W.3d 74, 76 (Tenn. Ct. App. 2001), this court applied
the reasoning set out by the Supreme Court in McCall v. Wilder, but found that a different


       3
         Among other things, our Supreme Court noted that the defendant’s reliance on the sudden
emergency doctrine was misplaced, because that doctrine had been subsumed into Tennessee’s comparative
fault scheme. McCall v. Wilder, 913 S.W.2d at 157.

                                                 -8-
set of facts dictated a different result. That case began after a limousine driver named Ronnie
Brock suddenly blacked out and wrecked his vehicle, severely injuring his passengers. The
passengers sued. The defendant filed a motion for summary judgment on the ground that his
blackout was not foreseeable.4 The trial court granted the motion.

      We noted on appeal that the defendant had never before experienced any sudden
incapacity or loss of consciousness and that there was no evidence that he had ever been
diagnosed with a condition that would lead him to anticipate such an incident. We also
reviewed the facts which the plaintiff argued made the defendant’s loss of consciousness
nonetheless foreseeable.

       On the morning before the accident, the defendant woke up early with a toothache
from an abscessed tooth. He took a Tylenol #3 with codeine and went to the dentist in the
afternoon. He received two or three shots of novocaine and a prescription for penicillin to
fight the infection. He took one penicillin tablet at 7:00 p.m. and went to work in the
evening. His loss of consciousness and accident occurred at 12:20 a.m.

       We affirmed the summary judgment, even though a medical witness had testified that
you should not operate machinery after taking codeine, depending on the length of time after
ingesting the drug. Because twenty hours had elapsed between the defendant’s ingestion of
Tylenol with codeine and the accident, and because there was no medical proof that
novocaine or penicillin, whether taken separately or together, normally incapacitate a driver,
we were unable to link the defendant’s medication intake to the accident. We concluded,
however, that “[e]ven if we knew what caused Mr. Brock’s spell, there is no proof from
which we could infer that a reasonably prudent person should have foreseen it.” Beasley v.
Amburgy, 70 S.W.3d at 77.

        The proof in the present case shows that Defendant was not under a physician’s care
for any condition known to cause fainting, that she had not taken any medication likely to
produce that effect, and that she had never previously fainted as an adult. She had also
managed to skip breakfast and lunch in the past without suffering any adverse physical
effects. Thus, even if we accept Plaintiff’s argument that hypoglycemia caused Defendant
to faint, there was no proof to indicate that she could have or should have foreseen that result.

      Plaintiff suggests that the sudden hunger Defendant experienced as she was picking
up dinner for family members constituted an advance warning of impending loss of
consciousness, which she should have heeded. But it would hardly be unusual for an


       4
        The named defendant in Beasley v. Amburgy was the owner of the limousine service that Mr. Brock
worked for. For the sake of simplicity, however, we will refer to Mr. Brock as the defendant.

                                                 -9-
individual to suddenly feel hungry after skipping two meals. Many people experience
hunger, and that experience does not constitute a warning that unconsciousness will soon
occur.

       We do not find that it would be reasonably foreseeable to a prudent person in
Defendant’s position that events would unfold as they did. Plaintiff has thus failed to create
a genuine dispute of material fact as to an essential element of his claim – that Defendant was
negligent in failing to act with the due care required of a reasonably prudent person facing
a foreseeable risk. We therefore affirm the trial court’s grant of summary judgment to
Defendant, in accordance with the reasoning set out by our Supreme Court in McCall v.
Wilder.

                                             IV.

       The judgment of the trial court is affirmed. We remand this case to the Circuit Court
of Marion County for any further proceedings necessary. Tax the costs on appeal to the
appellant, Timothy Schwander.




                                                    _________________________________
                                                    PATRICIA J. COTTRELL, JUDGE




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