Maus Law Firm

No Recovery

Call For a Free Consultation

(855) 999-5297

Million dollar advocates forum

Loss Of Consciousness Defense In Florida Car Accidents

Liability is a key issue in any Florida car accident case. Many cases will involve a party who was clearly at fault. Florida, however, makes it possible for such a driver to escape fault if they can establish that they lost consciousness while driving and such a loss is what caused the accident. A Plaintiff, however, may be able to prevail in their claim if the defendant asserts such a defense. Contact our office today if you have been involved in a car accident

This article will address three aspects of how losing consciousness impacts car accident cases. These three aspects include:

  • Florida law regarding losing consciousness and car accident liability
  • Evidence that will assist a Plaintiff against such a defense
  • How discovery can be used to gather the required evidence

We will discuss each of these issues in turn.

Florida Law Regarding Car Accidents and the Loss Of Consciousness

Florida has established a legal principle that the unforeseeable loss of consciousness can be a “complete defense” to negligence claims arising from a car accident. Hernandez v. Mishali, 319 So. 3d 753 (Fla: Dist. Court of Appeals, 3rd Dist. 2021). In other words, if a driver causes an accident and it is found that their loss of consciousness is what caused the wreck, then they may not be found liable for the victim’s injuries. While at first glance this law may make it seem that any driver can escape liability by making such a claim, such is not the case. The issue of whether or not a defendant actually lost consciousness and whether such a loss was unforeseeable is an issue that must be decided by the jury. In other words, a defendant will need to present proof of their claim and a Plaintiff will have the opportunity to rebut such proof.

Evidence Which a Plaintiff Can Present In Regard to the Sudden Loss of Consciousness Defense

When a defendant in a car accident case claims that they unforeseeably lost consciousness, it will be up to the jury to decide whether or not such a loss actually happened. While a jury, in theory, could reach such a conclusion solely on a Plaintiff’s stating that they “blacked out,” most juries will not accept such a claim without some form of proof. With that said, if the defendant is making such a claim then there is often evidence which a Plaintiff can present which is contrary to such claims. 

  • Medical records showing that the defendant had no history of blacking out, fainting, etc. – If a defendant is shown to have no history of such issues then a jury may be less likely to believe that they lost consciousness in the current instance.
  • Medical records showing that a medical condition made the loss of consciousness foreseeable – As stated above, the loss of consciousness must have been unforeseeable for the defendant to claim it as a defense. If the defendant’s medical records show that they had a medical condition, which created a risk of such a problem, then it can be argued that the situation was actually foreseeable.
  • Conduct by the defendant which created a risk of blacking out – Evidence may well establish that the defendant’s own conduct created a risk of them blacking out. Such conduct can include driving while on prescription medication, driving while deprived of sleep, etc.

It is important to remember that how the jury will rule in any such case will always depend on the facts of the matter.

The Discovery Process Can Be Used to Establish Evidence of the Defendant’s Fault

Plaintiffs may obtain the type of evidence above through a process known as “discovery.” This is the process by which information is gained from the other side in litigation. A defendant must participate in the discovery process. Tools available to a plaintiff include:

  • Interrogatories – Interrogatories are written questions to which the defendant must provide written answers. In a case where a defendant is claiming to have lost consciousness, Interrogatories may be used to have the defendant identify any known medical conditions they have as well as their complete medical history. They may also be used to identify the defendant’s regular care provider so that information requests may be sent to the physician.
  • Requests for Production – Requests for Production can be used to require that the defendant provide written documents, records, and other tangible objects. Such requests, for example, can be used to obtain the Plaintiff’s phone bills and records. Such records may in fact show that the defendant was talking on the phone at the time at which they claimed to have “blacked out.” Obviously, one cannot speak while unconscious. 
  • Depositions – Depositions can be used to gain sworn testimony from witnesses. This creates a formal record that can be used to impeach the witness should they attempt to change their story at trial. It is possible to take the deposition of the defendant, those who witnessed the accident, and other relevant parties (such as the defendant’s treating physician).
  • Subpoenas – Subpoenas are used to obtain records from those who are not parties to the suit and to compel the appearance of a non-party for a deposition. Examples of how this tool is used can include issuing a subpoena for all medical records (after obtaining a HIPPA release) from the defendant’s doctor. The doctor could then be issued a subpoena to appear for a deposition in regard to the defendant’s health.

The use of discovery can quickly become complicated in any lawsuit. If requests are not made properly, or if they are overly broad, then the opposing party may not be required to provide answers. Also, it may be necessary to file a Motion to Compel if the other side simply refuses to answer. 

Contact a Fort Lauderdale Car Accident Lawyer if You Have Been in an Accident

If you have been in an accident, then it is important that you contact a lawyer as soon as possible. The defendant will likely be represented by an attorney selected by his or her insurance carrier. Insurance companies have extensive resources at their disposal and may possibly claim that the defendant lost consciousness while driving. An experienced representative can help your efforts to rebut this claim. Contact us online or by telephone to speak with a Fort Lauderdale car accident attorney.


Client Testimonial

"After my car accident, the Maus law firm represented me. Mr. Maus and his entire staff are absolutely amazing! They answered all of my questions and concerns right away. They guided me step by step throughout the entire process. Mr. Maus got me the maximum settlement for my case. Very reliable and trustworthy. I highly recommend the Maus law firm!"

Posted By: Carol Austin

Contact us today to learn about your legal options

Super Lawyers badge Million dollar advocates badge Super Lawyers badge Florida legal elite badge avvo badge

If you or a loved one has been seriously injured in an accident, you deserve an attorney you can trust

– to prepare your case properly, and to obtain the compensation you deserve. The Attorneys at the Maus Law Firm have tried more than 130 jury trials, and recovered millions of dollars on behalf of their clients. In fact, most of our cases are referred from our former clients on cases in which we served as the lead accident claims lawyer.

The Maus Law Firm

Toll Free: 855-999-5297

Local: 954-784-6310


205 West Davie Blvd,
Fort Lauderdale, FL 33315

Get Directions

Proudly Serving Clients in Ft. Lauderdale, Boca Raton, Hollywood, Pompano Beach, Davie, Oakland Park, and all of South Florida

© 2023 Maus Law Firm, All rights reserved.

Schedule a Free & Confidential Consultation


    No Fee
    Until We Win

    Call Us