Maryland Recognizes Damages For Pre-Impact Fright

In two recent decisions, Maryland's highest court recognized for the first time, and then clarified what is recoverable under, a cause of action for damages for pre-impact fright. Both cases involved automobile collisions where the decedent driver was killed instantly upon impact. Each driver's estate brought a survival action for damages sustained prior to impact. In Beynon v. Montgomery County Cablevision Limited Partnership, 351 Md. 460 (1998), a divided Court of Appeals reversed an intermediate appellate court opinion holding that Maryland law required physical injury or injury capable of objection determination for an award, let alone a case of action, to lie for mere fright. The Court of Appeals held that recovery is available for pre-impact fright when it is the proximate result of a wrongful act and when it produces a physical injury or is manifested in some objective form.

In this case, the Court concluded that the plaintiff's fright was accompanied by both physical injury and independent objective manifestations in the form of the fatal injuries and 71 1/2 feet of skid marks left by the vehicle.

In Smallwood v. Bradford, 1998 Md. LEXIS 881 (Nov. 20, 1998), the Court of Appeals clarified the damages that are recoverable under its ruling in Beynon. The Court held that while pre-impact fright damages may be recovered by a decedent's estate in a survival action, damages for the loss of enjoyment of life are not separately recoverable because they are identical to damages for pre-impact fright. The objective evidence of emotional distress and mental anguish was satisfied in Smallwood, by evidence of the decedent's defensive maneuvering prior to impact.

The Court went on to hold that where the decedent fails to survive impact, post-impact loss of enjoyment was not recoverable in a survival action. The Court relied here on its recent ruling in Shirley Jones, Personal Rep. v. Flood, 351 Md. 120 (1998), where it held that in a survival action there is no recovery for future lost earnings when the injured party dies instantaneously.

For more information, contact Scott P. Burns at 410/752-9743.