                                                                            FILED
                                                                        Dec 18 2018, 8:35 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Katherine Karres                                          THE ESTATE OF DELMER
Hensley Legal Group, PC                                   DILLARD
Indianapolis, Indiana                                     Grover B. Davis
                                                          James T. Flanigan
ATTORNEY FOR AMICUS CURIAE                                Susan J. McGinty
INDIANA TRIAL LAWYERS                                     McClure McClure & Davis
ASSOCIATION                                               Indianapolis, Indiana

Edward B. Mulligan V
Cohen & Malad, LLP
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Wanda Denson,                                             December 18, 2018
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          18A-CT-1112
        v.                                                Appeal from the Johnson Superior
                                                          Court
The Estate of Delmer Dillard                              The Honorable Kevin M. Barton,
and Indiana Farmers Mutual                                Judge
Insurance Company,                                        Trial Court Cause No.
Appellees-Defendants                                      41D01-1705-CT-64




Crone, Judge.




Court of Appeals of Indiana | Opinion 18A-CT-1112 | December 18, 2018                           Page 1 of 13
                                              Case Summary
[1]   Wanda Denson was severely injured when Delmer Dillard had a heart attack

      and lost consciousness while driving a vehicle in which Denson was a

      passenger. Dillard ran the vehicle off the road and struck a home. Dillard died.

      Denson filed a negligence claim against Dillard’s estate (“the Estate”) as well as

      an underinsured motorist claim against her automobile insurer, Indiana

      Farmers Mutual Insurance Company (“the Insurance Company”). The Estate

      subsequently moved for summary judgment, claiming that Dillard’s sudden loss

      of consciousness or medical emergency negated the element of breach on

      Denson’s negligence claim. Following a hearing, the trial court entered

      summary judgment in favor of the Estate. Denson appeals that ruling, claiming

      that the trial court erred. Under the narrow and specific circumstances

      presented here, we conclude that the designated evidence negates the element of

      breach, and we therefore affirm the trial court’s entry of summary judgment in

      favor of the Estate.


                                  Facts and Procedural History
[2]   On November 20, 2016, Dillard was driving a vehicle in which Denson was a

      passenger. They were traveling to Bloomington to celebrate Thanksgiving.

      While driving westbound on State Road 252 near Morgantown, Dillard

      suddenly declared that he was not feeling well and immediately slumped over

      and passed out. Because Dillard’s foot was on the accelerator when he passed

      out, the vehicle sped up, went off the left side of the road, and crashed into a

      house. Dillard died. Denson suffered severe injuries, including fractures to her

      Court of Appeals of Indiana | Opinion 18A-CT-1112 | December 18, 2018     Page 2 of 13
      back, a fractured sternum, broken ribs, and a broken left arm. Her medical

      expenses exceeded $404,997.99. It was determined that Dillard had suffered a

      massive heart attack while driving and that his cause of death was

      “Hemopericardium Due to Ruptured Myocardial Infarction[.]” Appellant’s

      App. Vol. 2 at 220.


[3]   Medical records indicate that approximately six weeks prior to the accident, on

      October 7, Dillard went to the Johnson Memorial Hospital emergency room

      after experiencing chest pain the night before that had extended into the

      morning. He was later admitted to the hospital and diagnosed as having

      suffered a “subacute inferior ST segment elevation myocardial infarction [heart

      attack]” on October 5 or 6, 2016. Id. at 64. A cardiac nuclear stress test

      performed in the hospital revealed “a fixed inferior defect with normal ejection

      fractions.” Id.


[4]   Dillard was discharged from the hospital on October 11, 2016. When

      discharged, Dillard was prescribed home health care. He was given a

      prescription form dated October 9, 2016, signed by his attending physician, Ali

      T. Abedali, M.D., that provided: “Not driving for recovery to be completed.”

      Id. at 155.


[5]   Dillard had a follow-up appointment with Dr. Abedali on October 13, 2016. At

      that time, Dillard was doing well, had no chest or epigastric pain, and had no

      palpitations, fainting, dizziness, confusion, or headaches. He had normal heart

      sounds, no heart murmurs, and a normal heart rate. Dr. Abedali did not advise


      Court of Appeals of Indiana | Opinion 18A-CT-1112 | December 18, 2018    Page 3 of 13
      Dillard that he could not drive or operate a motor vehicle. Dr. Abedali’s

      decision to place no restrictions on Dillard’s driving was based upon a review of

      Dillard’s hospital records, cardiologist notes, stress test, and functional

      capacity. A follow-up appointment was scheduled for December 2016.


[6]   Dillard had a cardiology appointment with Ibed U. Ansari, M.D., on

      November 11, 2016. Dr. Ansari’s notes indicate that Dillard was doing well

      and denied having “any recurrence of chest pain, shortness of breath,

      palpitation or dizziness.” Id. at 175. The notes provided, “Will follow up in 3

      months.” Id. at 180.


[7]   Dillard was released from home health care on November 16, 2016. The

      discharge summary listed the type of discharge as a “complete” discharge and

      gave the reason as “GOALS MET.” Id. at 203. The notes further provided,

      “[Patient] NOW BACK TO BASELINE STATUS, [Patient] IS NOW

      DRIVING SELF TO CHURCH AND MD APPTS.” Id. Accordingly,

      specifically regarding transportation, the notes provided, “No assistance needed

      in this area.” Id. at 206. Dillard’s fatal heart attack and vehicle accident

      occurred four days later.


[8]   Approximately five months after the accident and Dillard’s death, Denson filed

      a negligence complaint against the Estate. Her complaint also sought

      uninsured/underinsured motorist benefits from her own automobile insurer, the

      Insurance Company. The Estate filed an answer asserting as a defense to

      negligence that Dillard was faced with a sudden medical emergency which was


      Court of Appeals of Indiana | Opinion 18A-CT-1112 | December 18, 2018         Page 4 of 13
      so imminent as to leave no time for deliberation or action. Denson filed a

      motion to strike the defense, which was converted to a motion for partial

      summary judgment. That same day, the Estate also filed a motion for summary

      judgment. A hearing was held on all pending motions on March 13, 2018.

      Thereafter, the trial court entered an extensive order with detailed findings of

      fact and conclusions thereon granting summary judgment in favor of the

      Estate.1 Specifically, the trial court concluded that the Estate successfully

      negated the element of breach on Denson’s negligence claim. This appeal

      ensued.


                                        Discussion and Decision
[9]   “The purpose of summary judgment is to terminate litigation about which there

      can be no factual dispute and which can be determined as a matter of law.”

      Lamb v. Mid Ind. Serv. Co., 19 N.E.3d 792, 793 (Ind. Ct. App. 2014). “The party

      moving for summary judgment has the burden of making a prima facie showing

      that there is no genuine issue of material fact and that it is entitled to judgment

      as a matter of law.” Mint Mgmt., LLC v. City of Richmond, 69 N.E.3d 561, 564

      (Ind. Ct. App. 2017). If the moving party meets its burden, “the burden then

      shifts to the nonmoving party whose response must set forth specific facts

      indicating that there is an issue of material fact.” Venture Enter., Inc. v. Ardsley




      1
        The trial court also granted Denson’s motion to strike insofar as it sought to strike any reliance by the Estate
      on the sudden emergency doctrine. Neither party challenges that ruling. As explained in footnote two, the
      sudden emergency doctrine is distinct from the sudden loss of consciousness/medical emergency defense
      relied on by the Estate in support of summary judgment and is not applicable here.

      Court of Appeals of Indiana | Opinion 18A-CT-1112 | December 18, 2018                                Page 5 of 13
       Distrib., Inc., 669 N.E.2d 1029, 1032 (Ind. Ct. App. 1996). Any doubts as to any

       facts or inferences to be drawn from those facts must be resolved in favor of the

       nonmoving party. Mint Mgmt., 69 N.E.3d at 564.


[10]   “We review a summary judgment ruling de novo.” Pelliccia v. Anthem Ins. Cos.,

       90 N.E.3d 1226, 1230 (Ind. Ct. App. 2018). A trial court’s findings and

       conclusions offer insight into the rationale for the court’s judgment and

       facilitate appellate review but are not binding on this Court. Henderson v. Reid

       Hosp. & Healthcare Servs., 17 N.E.3d 311, 315 (Ind. Ct. App. 2014), trans. denied

       (2015). Moreover, we are not constrained to the claims and arguments

       presented to the trial court, and we may affirm a summary judgment ruling on

       any theory supported by the designated evidence. Manley v. Sherer, 992 N.E.2d

       670, 673 (Ind. 2013). Cross-motions for summary judgment do not alter this

       standard or change our analysis. Erie Indem. Co. v. Estate of Harris, 99 N.E.3d

       625, 629 (Ind. 2018). The party that lost in the trial court has the burden of

       persuading us that the trial court erred. Estate of Hofgesang v. Hansford, 714

       N.E.2d 1213, 1216 (Ind. Ct. App. 1999).


[11]   To prevail on a negligence claim, a plaintiff must establish three elements: (1) a

       duty owed to the plaintiff by the defendant; (2) a breach of that duty by

       allowing conduct to fall below the applicable standard of care; and (3)

       compensable injury proximately caused by the breach of that duty. Ryan v. TCI

       Architects/Eng’rs/Contractors, Inc., 72 N.E.3d 908, 913 (Ind. 2017). A defendant

       may obtain summary judgment in a negligence action when the undisputed

       facts negate at least one element of the plaintiff’s claim. Pelak v. Ind. Indus.

       Court of Appeals of Indiana | Opinion 18A-CT-1112 | December 18, 2018       Page 6 of 13
       Servs., Inc., 831 N.E.2d 765, 769 (Ind. Ct. App. 2005), trans. denied (2006).

       Negligence cannot be inferred from the mere fact of an accident. Id. Rather, all

       the elements of negligence must be supported by specific facts designated to the

       trial court or reasonable inferences that might be drawn from those facts. Id. An

       inference is not reasonable when it rests on no more than speculation or

       conjecture. Id.


[12]   The trial court here concluded that the Estate successfully negated the element

       of breach on Denson’s negligence claim. Although the question of breach is

       usually one for the trier of fact, Cox v. Paul, 828 N.E.2d 907, 911 (Ind. 2005),

       where the relevant facts are undisputed and lead to but a single inference or

       conclusion, the court as a matter of law may determine whether a breach of

       duty has occurred. King v. Ne. Sec., Inc., 790 N.E.2d 474, 484 (Ind. 2003). With

       respect to the element of breach, the parties and the amicus curiae put

       considerable effort into debating whether Indiana should formally recognize a

       “sudden medical emergency” or “sudden loss of consciousness” affirmative

       defense2 that has been adopted in several jurisdictions and provides that a




       2
        Denson confuses and conflates the Estate’s claim of sudden medical emergency with our already well-
       established sudden emergency doctrine, which can be explained as follows:

       Court of Appeals of Indiana | Opinion 18A-CT-1112 | December 18, 2018                         Page 7 of 13
sudden loss of consciousness while driving is a complete defense to an action

based in negligence if such medical emergency or loss of consciousness was not

foreseeable. See Roman v. Estate of Gobbo, 791 N.E.2d 422, 428 (Ohio 2003)

(noting that at least thirty-six states, including Indiana,3 recognize such

defense). We see no need to formally recognize a specific doctrine or defense

and think that the application of general negligence principles adequately

addresses the situation at hand.




      In a negligence cause of action, the sudden emergency doctrine is an application of the general
      requirement that one’s conduct conform to the standard of a reasonable person. The emergency
      is simply one of the circumstances to be considered in forming a judgment about an actor’s
      fault. The doctrine was developed by the courts to recognize that a person confronted with
      sudden or unexpected circumstances calling for immediate action is not expected to exercise the
      judgment of one acting under normal circumstances. The basis of the doctrine is that the actor
      is left no time for adequate thought, or is reasonably so disturbed or excited that the actor
      cannot weigh alternative courses of action, and must make a speedy decision, based very largely
      upon impulse or guess. Under such conditions, the actor cannot reasonably be held to the same
      accuracy of judgment or conduct as one who has had full opportunity to reflect, even though it
      later appears that the actor made the wrong decision, one which no reasonable person could
      possibly have made after due deliberation. In Indiana, a defendant seeking a sudden emergency
      instruction must show that three factual prerequisites have been satisfied: 1) the defendant must
      not have created or brought about the emergency through his own negligence; 2) the danger or
      peril confronting the defendant must appear to be so imminent as to leave no time for
      deliberation; and 3) the defendant’s apprehension of the peril must itself be reasonable.
Willis v. Westerfield, 839 N.E.2d 1179, 1184-85 (Ind. 2006) (citations and quotation marks omitted). The
sudden emergency doctrine is not an affirmative defense. Id. “Rather, it ‘defines the conduct to be expected
of a prudent person in an emergency situation.’” Id. (quoting Brooks v. Friedman, 769 N.E.2d 696, 699 (Ind.
Ct. App. 2002), trans. denied). As we explain more fully below, unlike the sudden emergency doctrine, the
issue with sudden medical emergency is not whether the defendant responded reasonably to an emergency
situation, but whether a reasonable person in the defendant’s position would have altered his conduct before
the medical emergency occurred based on knowledge of peril. See, e.g., RESTATEMENT (SECOND) OF TORTS §
283(C), cmt. c (1965).
3
  The Roman court cites Holcomb v. Miller, 149 Ind. App. 46, 50, 269 N.E.2d 885, 888 (1971), in which this
Court acknowledged the status of sudden loss of consciousness while driving as an affirmative defense to a
negligence action. However, Holcomb provides minimal background, explanation, or detail as to the
reasoning for, or parameters of, such a defense. We do not think that Holcomb constitutes a formal adoption
of the specific affirmative defense to negligence as has occurred in other jurisdictions, and we decline to
expand Holcomb further.



Court of Appeals of Indiana | Opinion 18A-CT-1112 | December 18, 2018                            Page 8 of 13
[13]   When considering breach of the duty of care, we always begin with the

       “venerable legal concept of the ‘reasonable person.’” Key v. Hamilton, 963

       N.E.2d 573, 579 (Ind. Ct. App. 2012), trans. denied. It is well settled that to

       avoid being negligent, an actor must conform his conduct to that of a

       reasonable person under like circumstances. RESTATEMENT (SECOND) OF

       TORTS § 283 (1965). Section 283(C) of the Restatement explains that if “the

       actor is ill or otherwise physically disabled, the standard of conduct to which he

       [or she] must conform to avoid being negligent is that of a reasonable [person]

       under like disability.” In other words, a person under a temporary or

       permanent disability “may be required, under particular circumstances, to take

       more precautions than one who is not so disabled, while under other

       circumstances he may be required to take less.” Id., cmt. c. Thus, “an

       automobile driver who suddenly and quite unexpectedly suffers a heart attack

       does not become negligent when he loses control of his car and drives it in a

       manner which would otherwise be unreasonable; but one who knows that he is

       subject to such attacks may be negligent for driving at all.” Id.


[14]   Here, the Estate presented prima facie evidence that Dillard suddenly suffered a

       heart attack and lost consciousness before losing control of the car and

       crashing.4 Because we determine as a matter of law that Dillard cannot be




       4
[1]      Denson and the amicus curiae briefly suggest that the Estate failed to make a prima facie showing that
       Dillard’s loss of consciousness was so sudden after his heart attack that he could not have avoided the
       accident. See Holcomb, 149 N.E.2d at 50, 269 N.E.2d at 888 (driver has burden to show by preponderance of
       evidence that attack occurred “under such circumstances as to preclude [him] from taking reasonable
       precautions whether by pulling to the side of the street to await passage of the dizziness or faint spell, or
       otherwise.”). We disagree. In fact, the evidence designated by both parties supports only the single

       Court of Appeals of Indiana | Opinion 18A-CT-1112 | December 18, 2018                             Page 9 of 13
       found to have acted unreasonably after he suffered the attack and was rendered

       unconscious, the issue becomes whether Dillard acted unreasonably in deciding

       to drive in the first place. That is to say, the question is whether Dillard’s

       sudden physical incapacity was reasonably foreseeable such that a reasonably

       prudent person in his position would not have risked driving. We agree with

       the trial court that the Estate made a prima facie case on this issue and that the

       evidence designated by Denson fails to create a genuine issue of material fact.


[15]   As a general matter, an actor “is required to recognize that his conduct involves

       risk of causing an invasion of another’s interest if a reasonable man would do so

       while exercising (a) such attention, perception of the circumstances, memory,

       knowledge of other pertinent matters, intelligence, and judgment as a

       reasonable man would have ….” RESTATEMENT (SECOND) OF TORTS § 289

       (1965). Moreover, “in order for an act or an omission to constitute negligence,

       a person to be charged must have knowledge or notice that such act or omission

       involved danger to another.” State v. Totty, 423 N.E.2d 637, 644 (Ind. Ct. App.

       1981) (citation omitted). Indeed, “the foundation of liability is knowledge or

       what is deemed in law to be the same thing, namely, the opportunity by the

       exercise of reasonable diligence to acquire knowledge of peril.” Id.




       reasonable inference that Dillard’s heart attack and loss of consciousness occurred almost simultaneously and
       so suddenly as to leave no time for meaningful deliberation. See Appellant’s App. Vol. 2 at 235 (deposition of
       Wanda Denson).




       Court of Appeals of Indiana | Opinion 18A-CT-1112 | December 18, 2018                           Page 10 of 13
[16]   Regarding Dillard’s knowledge of peril, the designated evidence shows that

       Dillard suffered a prior heart attack on October 5 or 6, 2016, and was

       hospitalized. He was prescribed home health care upon his discharge from the

       hospital, but the recovery goals were met and he was completely released from

       home health care as of November 16, 2016, without any restriction placed on

       his driving.5 In fact, the home health care notes indicate that, prior to his

       release, Dillard had already been driving himself to church and doctor

       appointments. Dillard attended appointments with his attending physician on

       October 13, 2016, and with his cardiologist on November 11, 2016. The

       medical notes from those appointments reported no abnormalities in Dillard’s

       heart and indicated that he was doing well. Dillard’s attending physician

       averred that he did not advise Dillard that he could not operate a motor vehicle

       and that this specific lack of driving restriction “was based on review of his

       hospital records, cardiologist notes throughout his hospital stay, and review of

       his stress test, as well as his functional capacity.” Appellant’s App. Vol. 2 at 65.


[17]   While Denson designated evidence that shows that Dillard was prescribed

       medication for his heart, and that his prior heart attack would have put him on

       notice that he suffered from coronary artery disease, this evidence does not

       equate to knowledge of peril or create an inference that a reasonable man in




       5
         While there is conflicting evidence regarding whether Dillard was under a driving restriction immediately
       upon his discharge from the hospital, the undisputed evidence demonstrates that any such restriction was no
       longer in place as of the date of the accident.

       Court of Appeals of Indiana | Opinion 18A-CT-1112 | December 18, 2018                          Page 11 of 13
       Dillard’s position would have altered his behavior regarding driving.6 This is

       especially true in light of the undisputed lack of driving restrictions or warnings

       not to drive by trained medical personnel. Moreover, there is no evidence that

       Dillard suffered any symptoms prior to his decision to drive on November 20,

       which would have alerted him of the impending physical incapacity.7


[18]   In sum, the Estate made a prima facie showing that Dillard’s sudden physical

       incapacity was not reasonably foreseeable, and therefore, under the narrow

       circumstances presented, the Estate met its burden as summary judgment

       movant to affirmatively negate the element of breach on Denson’s negligence

       claim. The burden then shifted to Denson to come forward with contrary

       evidence requiring resolution by a trier of fact. See Hughley v. State, 15 N.E.3d

       1000, 1003 (Ind. 2014). The evidence designated by Denson is insufficient to




       6
         Denson submitted expert medical testimony which broadly stated that “[g]iven his medical history on
       November 20, 2016[,] before the incident in question, Delmer Dillard was at a significantly increased risk of
       future cardiac events.” Appellant’s App. Vol. 2 at 231. This is a far cry from evidence that Dillard knew or
       had reason to believe that he was at imminent risk for an attack and should not have been driving.
       7
         The only evidence as to Dillard’s physical condition and state of mind on the date of the accident comes
       from Denson’s deposition testimony, which provides in relevant part as follows:
             Q: Before [Dillard] said, I’m not feeling well, did he give any indication that he was not feeling
                well?
             A: No.
             Q: When you left the house that day did he say he was not feeling good?
             A: No.
             Q: Did he seem normal to you?
             A: He looked like he was all right to me.
       Appellant’s App. Vol. 2 at 235. Although Denson suggests that a jury could still infer that Dillard was
       perhaps not feeling well on the day of the accident before he started to drive, such inference would be
       unreasonable, as it would be based on nothing more than speculation and conjecture. See Pelak, 831 N.E.2d
       at 769.



       Court of Appeals of Indiana | Opinion 18A-CT-1112 | December 18, 2018                            Page 12 of 13
       create a genuine issue. We therefore affirm the trial court’s grant of summary

       judgment in the Estate’s favor.8


[19]   Affirmed.


       Najam, J., and Pyle, J., concur.




       8
         The amicus curiae expresses concern that a decision in favor of the Estate unfairly shifts the financial
       burden of these types of accidents onto “unsuspecting, innocent, and harmed plaintiffs.” Amicus Br. at 12.
       Specifically, in addition to being unable to recover from the Estate, there is a risk that Denson will be unable
       to recover from the Insurance Company under her own uninsured/underinsured motorist policy due to “the
       lack of an at-fault party.” Id. While we sympathize with Denson and similarly situated plaintiffs, this case is
       not about insurance coverage.

       Court of Appeals of Indiana | Opinion 18A-CT-1112 | December 18, 2018                              Page 13 of 13
