N.J. Model Civil Jury Charge 5.30E

5.30E EFFECT OF BLACK OUT (Approved before 1984)

The fact that the automobile opera ted by defendant left the highway (or

crossed the center line of a two way road, etc.) is evidence from which you may

infer that the accident was brought about by the negligence of the defendant and

calls upon him/her for an explanation of the reason for the unusual course of the

vehicle.

Defendant’s explanation is that imme diately before the occurrence, he/she

became unconscious (had a heart attack, etc.). He/She contends that he/she was not

negligent because in his/her then condition he/she could not control the automobile

and the period of unconsciousness came on suddenly without fault on his/her part.

It is not negligence to lose contro l of an automobile by reason of sudden

unconsciousness (heart attack, etc.). A person who causes an accident by reason of

such an attack is not held responsible for that which is not of his/her doing and is

beyond his/her control.

However, where a person is sufferi ng from a disease or condition which

he/she knows, or which a reasonable person in his/her position should know,

makes him/her subject to fainting or weak spells or seizures of a kind which may

imperil his/her control of the vehicle, it may indicate lack of due care for such a

person to drive on a public highway.

Evidence that defendant has previous ly suffered from a similar attack or

attacks may be considered by you in de termining whether defendant had such

warning that an ordinarily prudent person in his/her position should have foreseen

the danger and, in the exercise of r easonable care, should have refrained from

operating an automobile or taken other precautions.

Taking into consideration all of the credible evidence with respect to the

manner in which defendant operated his/her automobile, with respect to the

defendant’s alleged blackout (or other seizure) just be fore the accident, and with

respect to defendant’s prior knowledge of his/her own condition and his/her

susceptibility to blackout, the plaintiff has the burden of establishing by the

preponderance of the evidence that the de fendant was negligent and that his/her

negligence brought about the accident.

Cases:

Res Ipsa Loquitur: Bevilacqua v. Sutter , 26 N.J. Super. 394, (App.

Div. 1953) (crossing highway and striking pole); Spill v. Stoeckert,

125 N.J.L. 382, (E. & A. 1940) (leaving pavement and

overturning); Smith v. Kirby , 115 N.J.L. 225, ( E. & A . 1935)

(leaving highway and striking tree).

Burden of explanation, not exculpation, is on defendant: Kahalili v.

Rosecliff Realty, Inc., 26 N.J. 595, 66 A.L.R. 2d 680 (1958).

Sudden unconsciousness is not negligence : Prosser , Law of Torts ,

2nd ed., (1955) p. 117 note 12; State v. Shiren , 15 N.J. Super. 440

(App. Div. 1951) (blackout cause d by illness negates criminal

negligence) Annotation 28 A.L.R. 2d (1953) at p. 35, et seq.

Driving after warning of susceptibility to blackout may be negligence:

In re Lewis , 11 N.J. 217 (1953) (Criminal negligence); Kreis v.

Owens, 38 N.J. Super. 148 (App. Div. 1955) (Civil negligence).

Burden of proof : “Unavoidable accident” is not an affirmative

defense. It amounts to a denial of negligence. Cohen v. Kaminetsky,

36 N.J. 276 (1961).

Res Ipsa Loquitur does not shift burden of proof : 65 C.J.S .

“Negligence,” Sec. 220 (9) (b); Bornstein v. Metropolitan Bottling

Co., 26 N.J. 263 (1958); Kahalili v. Rosecliff Realty, Inc., 26 N.J. 595,

66 A.L.R. 2d 680 (1958).