The Oregon Court of Appeals has clarified the pleading burden
for defendants who assert a sudden medical emergency defense.
Loper v. Brakel, 343 Or App. 445 (Sept. 17, 2025) arose
from a rear-end collision. The defendant planned to argue he was
not negligent because he suffered a seizure and lost consciousness
just before the collision. The plaintiff moved to exclude the
defense entirely, asserting it was an affirmative defense that the
defendant had not pled. The trial court granted the motion; the
defendant then admitted liability and proceeded to appeal a verdict
that exceeded $5.5 million.
The Court of Appeals reversed. It held that a sudden medical
emergency – like a seizure or loss of consciousness –
goes to whether the defendant acted with reasonable care under the
circumstances and is therefore encompassed within a general denial,
not an affirmative defense requiring separate pleading. Evidence of
such an unforeseeable medical event directly controverts the
plaintiff's proof of negligence and may be introduced under a
general denial.
While ultimately a favorable outcome for civil defendants,
Loper serves as a reminder of the importance of
identifying what must be pled as an affirmative defense.
Practically, defendants should still provide timely disclosure of
supporting facts and medical evidence in discovery and pretrial
filings, and be prepared to demonstrate that the event was sudden
and not reasonably foreseeable.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
