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3.7-13  Statutory Negligence - Falling Asleep While Driving

Revised to January 1, 2008

The plaintiff claims that the defendant was negligent in falling asleep while driving.  As part of the duty to use reasonable care in the operation of a motor vehicle, a driver must take very great care to avoid falling asleep.  Because sleep does not ordinarily come upon a driver of a car without some warning of its approach, a driver who knows, or should know, that (he/she) is becoming sleepy must either maintain a constant vigilance to stay awake or cease driving.  Proof that a driver of a car fell asleep while driving is, alone, a sufficient basis for finding the driver negligent.

[<Give the following paragraphs if the defendant claims to have proven that there was an unforeseen falling asleep or loss of consciousness caused by a circumstance that tends to excuse or justify the conduct.>  In this case, the defendant has claimed that (he/she) is not liable because the falling asleep or loss of consciousness while driving was caused by <state the facts claimed by the defendant to excuse or justify conduct>.  A driver who falls asleep or loses consciousness while driving may be found not to be negligent if such conduct was due to unforeseen sleep or loss of consciousness resulting from a condition of which the driver was not and should not have been aware.

In evaluating circumstances presented in this case, you should keep in mind that ordinarily sleep does not come upon one without warning of its approach.  Additionally, a driver who loses control of a car due to a sudden condition or loss of consciousness is not automatically excused from liability.  Whether a driver is negligent or not under these circumstances depends upon whether (he/she) was or should have been aware of the claimed condition.  A driver is not negligent when suffering a black-out, fainting spell, sudden attack or loss of consciousness when it occurs without premonition or warning.  In determining whether the defendant was negligent under the circumstances of this case, you should consider the defendant's health history along with all of the other evidence presented.]


Shea v. Tousignant, 172 Conn. 54 (1976); Bushnell v. Bushnell, 103 Conn. 583 (1925); Smith v. Czescel, 12 Conn. App. 558 (1987).

In Smith, the Appellate Court outlined "several critical features of the law" required in a charge on falling asleep while driving as enunciated in Bushnell.  The Court emphasized that "reasonable care to avoid such a danger requires very great care."  (Internal quotation marks omitted.)  Smith v. Czescel, supra, 12 Conn. App. 566.   The court further stated that: "[t]he jury should also have been instructed, in accordance with these principles, that if a driver of a car falls asleep while driving, that alone will be a sufficient basis for a finding of negligence, because ordinarily the law requires that a driver maintain a vigilance either to stay awake or to cease driving.  The jury should have been instructed that, if there are circumstances which excuse or justify his having fallen asleep, they may find that the driver was not negligent, but in this connection they should have been further instructed that 'ordinarily sleep does not come upon one without warning of its approach.'"  Id.

Additionally, in order for the jury to consider a defendant's claim of excuse or justification, there must be evidence presented that the defendant either suddenly lost consciousness from a cause other than sleep or suddenly fell asleep without having experienced the usual pre-sleep warnings.  Id., 568-69.


Falling asleep can constitute recklessness.  See Potz v. Williams, 113 Conn. 278 (1931); Smith v. Czescel, 12 Conn. App. 558 (1987).


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