from the Johnson Superior Court The Honorable Kevin M.
Barton, Judge Trial Court Cause No. 41D01-1705-CT-64
Attorney for Appellant Katherine Karres Hensley Legal Group,
PC Indianapolis, Indiana
Attorney for Amicus Curiae Indiana Trial Lawyers Association
Edward B. Mulligan V Cohen & Malad, LLP Indianapolis,
Attorneys for Appellee The Estate of Delmer Dillard Grover B.
Davis James T. Flanigan Susan J. McGinty McClure McClure
& Davis Indianapolis, Indiana
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.
and Procedural History
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 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.
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.
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.
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 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.
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.
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 ...