Mahanes argues the “blackout” defense instruction was erroneously tailored to Shugars rather than worded in terms of the ordinary person. Shugars responds that the court’s instruction is nearly verbatim to the version appearing in John S. Palmore, Kentucky Instructions to Juries § 16.60 (4th Ed., 1989), and was therefore appropriate.
Under the “blackout” defense,
where the driver of a motor vehicle suddenly becomes physically or mentally incapacitated without warning, he is not liable for injury resulting from the operation of the vehicle while so incapacitated. However, once a prima facie case of negligence has been made against the defendant he must demonstrate that the sudden illness or incapacity could not have been anticipated or foreseen.
Rogers, 748 S.W.2d at 673, (citing Lutzkovitz v. Murray, Del., 339 A.2d 64, 93 A.L.R.3d 321 (1975)). The evidence elicited at trial supported the giving of an instruction on the “blackout” defense. The issue on appeal is whether the instruction given by the court was an accurate statement of the defense.
Mahanes bases his argument on a single reference to the phrase “ordinary and reasonable person” in Rogers, which states:
[t]he defense is unavailable where the defendant was put on notice of facts sufficient to cause an ordinary and reasonable person to anticipate that his or her driving might likely lead to the injury of others. The defense is neither available if at the time of the accident the incapacitated driver was violating a statutory duty such as to refrain from driving while intoxicated, or to drive within the posted speed limit.
Rogers does not set forth a sample instruction.
The court instructed the jury as follows:
Do you find from the evidence that Michael Shugars suddenly became incapacitated immediately before the accident, that such incapacity was not reasonably foreseeable by him, and that the accident was a result of such incapacity?
By comparison, Palmore’s sample version of the “blackout” defense instruction, which references Rogers, reads:
Even though you might otherwise find for P under Instruction ___, if you are satisfied from the evidence that immediately before the accident D suddenly became incapacitated, that such incapacity was not reasonably foreseeable by him, and that the accident resulted from it, you will find for D.
The instruction given by the court was consistent with Palmore’s suggested language. Moreover, we note that the comment to Palmore’s sample instruction does not reference the ordinary and reasonable person standard. Mahanes has not cited any case wherein an approved “blackout” defense instruction uses the phrase “ordinary and reasonable person” and our search of caselaw has not revealed such an instruction. Therefore, discerning no error, we affirm the court’s “blackout” defense instruction as given.
FROM: MAHANES (DONALD LEE) VS. SHUGARS (MICHAEL R.), ET AL.
NOT TO BE PUBLISHED 1/7/2011
2009-CA-002047-MR
