Lead Opinion
Whether “pre-impact fright,” or any other form of mental and emotional disturbance or distress, suffered by an accident victim who dies instantly upon impact is a legally compensable element of damages in a survival action is an issue hitherto unaddressed by this Court, but presented in this case. In Maryland, it is well-settled that, in the absence of a physical impact or injury directly resulting in harm, mental and emotional injuries such as fright are not compensable unless there are objective manifestations of such injury. See
I.
During the late evening hours of June 7, 1990, Montgomery Cable Vision Limited Partnership, doing business as Cable TV Montgomery (“Montgomery Cable”), discovered that one of its cables located at Interstate 495, the Capital Beltway, had either broken or fallen from a utility pole and needed repair. In order to repair the damaged cable, Montgomery Cable, pursuant a blanket permit issued to it by the Maryland State Highway Administration (“SHA”), coordinated with the Maryland State Police to have traffic on the beltway stopped during the early morning hours of June 8. This was accomplished around 2:00 a.m. with two police officers, one on each side of the Capital Beltway and Montgomery Cable employees were enabled to install a replacement cable. During the thirty to forty-five minutes that it took to complete the repair, traffic backed up approximately one mile on each side of the beltway. At the rear of the congestion on the westbound side of the beltway, James P. Kirkland (“Kirkland”) was driving a tractor-trailer owned by James Lee (“Lee”), doing business as K & L. Transportation. Kirkland testified, at trial, that his trailer was at a complete stop in one of the middle lanes. He also testified that he noticed that all four lanes of the beltway were occupied; he remembered that there was another tractor-trailer to his left and there may have been another truck in the right lane.
Douglas K. Beynon, Jr., (“Beynon” or the “decedent,”), also traveling westbound, was driving his employer’s vehicle, with
The petitioners, Julia D. Beynon, individually and as personal representative of her son’s estate, and Douglas K. Beynon, Sr., the decedent’s father, instituted two separate suits, which were later consolidated, in the Circuit Court for Montgomery County against, Kirkland, Lee and Montgomery Cable, and Lumbermens Mutual Casualty Company, the insurance provider for the tractor-trailer, intervened as a defendant (collectively, the “respondents”). The suits, both a wrongful death and a survivorship action, alleged that the respondents were negligent and were jointly and severally responsible for the crash. At trial, the petitioners presented evidence to show that Kirkland and Lee negligently operated the tractor-trailer and also negligently maintained it since the rear of the trailer was not properly illuminated and, therefore, was not sufficiently visible to motorists approaching from the rear. With respect to Montgomery Cable, the petitioners offered evidence to prove that Montgomery Cable violated specific conditions of the SHA blanket permit by failing to post advance warning signs to provide oncoming traffic with notice of the unusual and dangerous hazard that the unanticipated traffic back-up presented.
The petitioners conceded that the decedent suffered no conscious pain and suffering following the crash. Rather, they contended that the decedent suffered, and should be compensated for, “pre-impact fright”—the mental anguish the decedent suffered from the time he became aware of the impending crash until the actual collision. Agreeing that the petitioners had presented sufficient evidence of “pre-impact
On appeal, the respondents did not challenge the reasonableness or excessiveness of the jury award. They contended, instead, inter alia, that the trial court “erred in failing to rule as a matter of law that there could be no recovery for ‘preimpact flight.’ ” Id. at 372-73,
Observing that there are no Maryland cases addressing the recoverability of damages for a decedent’s pre-impact fright, the Court of Special Appeals was not persuaded by the preimpact fright caselaw that it reviewed. See Shu-Tao Lin v. McDonnell Douglas Corp.,
*469 “[T]here can be no award of damages for pre-impact fright suffered by a tort victim who died instantly upon impact or who never regained consciousness after the impact, because no cause of action will lie for ‘mere fright’ without physical injury (Green v. Shoemaker) or injury capable of objective determination (Vance v. Vance,286 Md. 490 ,408 A.2d 728 (1979)) resulting therefrom. Obviously, one who died instantly upon impact or at least died without recovering consciousness following impact cannot have suffered any injury capable of objective determination as a result of preimpact fright,[] i.e., fear, terror, or mental anguish or distress from anticipation of imminent injury or death.”
Montgomery Cablevision,
Dissenting, Chief Judge Murphy wrote that “[t]he preimpact fright award is consistent with both Court of Appeals’ precedent and the survivor’s action provided for by a General Assembly that recognized the unfairness in allowing tortfeasors to benefit because the injuries they caused were fatal rather than serious.” Id. at 404,
By filing a petition for a writ of certiorari, the petitioners seek reversal of “the decision of a divided Court of Special Appeals that there can never be recovery for the pre-impact fright and mental anguish suffered by a tort victim who dies upon impact even when the evidence demonstrates that the victim was acutely aware of the impending danger and suffered pre-impact fright and anguish as he tried to avoid the fatal crash.” (footnote omitted). We granted the petition to address this important issue. Beynon v. Montgomery Cablevision,
On this appeal, the petitioners contend that “[t]he legal analysis of the pre-impact fright' issue by the majority opinion of the Court of Special Appeals failed to recognize that different principles of law apply to cases where fright occurs in the seconds before an impact or crash causing bodily harm or death than in cases where there is no impact or crash directly causing bodily harm.” Specifically, they argue:
“In reversing the trial court, the majority opinion of the Court of Special Appeals relied on Maryland cases in which there was no impact directly producing a significant injury and essentially ignored the facts that the fright and mental anguish in this case immediately preceded a crash that resulted in fatal bodily injuries. It thereby erroneously treated this as a case of “no impact fright” instead of “preimpact fright.” Its reliance on Maryland cases in which there was ‘no impact’ directly resulting in bodily injury was misplaced. In so narrowing its focus, the Court of Special Appeals failed to recognize the fundamental principle of tort law which underlies the decisions of the many jurisdictions that have allowed recovery for ‘pre-impact fright.’ ”
(emphasis in original).
The petitioners acknowledge that, under common law negligence principles, fright immediately preceding an impact or crash resulting in no bodily harm constitutes an uncompensable element of damages. They also concede that, in Maryland, when there is no impact or crash directly resulting in bodily harm, fright is not compensable unless there are objective manifestations of injury or emotional distress resulting from the fright. The petitioners argue that neither its concession nor its acknowledgment applies in the instant cáse, where the fright experienced by the tort victim immediately preceded a physical impact, a crash, which caused the decedent’s death. The petitioners thus contend that this Court should be guided by Restatement (Second) of Torts, § 456 (1965), which reads:
“ § 456. Emotional Disturbance Resulting From an Actionable Injury or the Conduct Which Caused It
*471 “If the actor’s negligent conduct has so caused any bodily harm to another as to make him liable for it, the actor is also subject to liability for
“(a) fright, shock, or other emotional disturbance resulting from the bodily harm or from the conduct which causes it, and
“(b) further bodily harm resulting from such emotional disturbances.”
This rule, according to the petitioners, applies in impact cases. The first comment to § 456 states that it “applies only where the negligent conduct of the actor has resulted in bodily harm to another, and has made the actor liable for such bodily harm.” Id. at § 456 cmt. a.
“c. Where the tortious conduct in fact results in bodily harm, and makes the actor liable for it, a cause of action is independently established, and there is sufficient assurance that the resulting emotional disturbance is genuine and serious. There may be recovery for such emotional disturbance even though the emotional disturbance does not result in any further bodily harm.
“e. The rule stated in Clause (a) is not limited to emotional disturbance resulting from the bodily harm itself, but includes also such disturbance resulting from the conduct of the actor. Thus one who is struck by a negligently driven automobile and suffers a broken leg may recover not only for his pain, grief, or worry resulting from the broken leg, but also for his fright at seeing the car about to hit him.”
Interestingly, the respondents do not disagree, noting that “[t]here is truly no need to consider whether Maryland accepts § 456 of the Restatement of Torts” (emphasis omitted) because existing state law requires a demonstrable or objectively determinable injury in order for pre-impact fright to be compensable. They submit:
“Whether this court formally accepts this section of the Restatement as controlling in this type of case makes no difference, [as] the Court of Appeals of Maryland since 1909 has accepted the fact that a plaintiff is entitled to recover for fright even though there is no evidence of ‘physical impact or corporal injury to the plaintiff.’ Green v. T.A. Shoemaker,111 Md. 69 ,73 A. 688 (1909). This court has consistently followed Section 456 of the Restatement (without acknowledging it) by continuing to accept the Green opinion as controlling with only minor modifications.”
Alternatively, the respondents maintain that, if this Court considers the standard articulated in § 456, it is important to do so in the context of § 436A and comment b thereto. Respectively, they state:
“ § 436A. Negligence Resulting in Emotional Disturbance Alone
“If the actor’s conduct is negligent as creating an unreasonable risk of causing either harm or emotional disturbance to another, and it results in such emotional disturbance alone, without bodily harm or other compensable damage, the actor is not liable for such emotional disturbance.
❖ * *
“b. The reasons for the distinction, as they usually have been stated by the court, have been three. One is that emotional disturbance which is not so severe and serious as to have physical consequences is normally in the realm of*473 the trivial, and so falls within the maxim that the law does not concern itself with trifles. It is likely to be so temporary, so evanescent, and so relatively harmless and unimportant, that the task of compensating for it would unduly burden the courts and the defendants. The second is that in the absence of the guarantee of genuineness provided by resulting bodily harm, such emotional disturbance may be too easily feigned, depending, as it must, very largely upon the subjective testimony of the plaintiff; and that to allow recovery for it might open too wide a door for false claimants who have suffered no real harm at all. The third is that where the defendant has been merely negligent, without any element of intent to do harm, his fault is not so great that he should be required to make good a purely mental disturbance.”
Restatement (Second) of Torts § 436A and cmt. b (1965). These provisions, read in conjunction with § 456, the respondents argue, make clear that “there is a substantial concern over the possibility that trivial and/or fictitious claims might be filed.”
The respondents also argue that Maryland law requires “strict proof’ that a tort victim actually suffered fright. The mere fact that the fatal impact in this case occurred following the alleged fright experienced by the decedent does not lessen, they submit, the requirements regarding the degree of proof necessary to entitle one to damages for emotional distress. The evidence adduced at trial, the respondents argue, was
III.
Pursuant to the Maryland survivorship statute, unlike the wrongful death statute, Md.Code (1974, 1995 Repl.Vol., 1997 Supp.), §§ 3-901 through 3-904 of the Courts and Judicial Proceedings Article, the personal representative of a decedent’s estate may bring “a personal action which the decedent might have commenced or prosecuted ... against a tortfeasor for a wrong which resulted in the death of the decedent.” Md.Code (1974, 1991 Repl., 1997 Supp.) § 7-401(x) of the Estates and Trust Article. We aptly explained the differences between a survival action and a wrongful death action long ago, in Stewart v. United Electric Light & Power Co.,
“Under the [wrongful death statute,] the damages recoverable are such as the equitable plaintiffs have sustained by the death of the party injured. Under [the survival statute] the damages recoverable are such as the deceased sustained in his lifetime and consequently exclude those which result to other persons from his death. Under the [wrongful death statute] the damages are apportioned by the jury among the equitable plaintiffs, and belong exclusively to them and form no part of the assets of the decedent’s estate; under [the survival statute] the damages recovered go into the hands of the executor or administrator and constitute assets of the estate. Under [the wrongful death statute,] there is no survival of a cause of action—the cause of action is created by it and is a new cause of action and consequently one*475 which the deceased never had; under [the survival statute] there is a survival of a cause of action which the decedent had in his lifetime.”
See U.S. v. Streidel,
Therefore, in survival actions, recovery is limited to damages that the decedent could have recovered had the decedent survived and brought the action. We have also stated that “the damages are limited to compensation for the pain and suffering endured by the deceased, his loss of time and his expenses between the time of his injury and his death.” Stewart,
This Court has limited the compensability of emotional distress resulting from a wrongful act under two separate and distinct legal theories and lines of cases. Under one theory, through the “physical impact” and later the “physical injury” rule, we have attempted primarily to ensure that the emotional distress for which recovery is sought is genuine or “capable of objective determination.” Belcher v. T. Rowe Price Foundation,
Although this Court’s cases have dealt extensively with the recovery of damages for emotional distress and mental anguish, we have yet to address the specific issue of-whether damages for “pre-impact fright” suffered by a tort victim who dies upon impact are compensable in a survival action. We ■will first review case law from other jurisdictions and then discuss the development of this Court’s jurisprudence concerning emotional distress and mental anguish damages.
(a)
There is no uniformity in the manner in which courts treat pre-impact emotional distress or fright.
The trial court acknowledged that there was no evidence as to the length of time that the decedents suffered prior to death, or whether they were killed upon impact or survived for some time in the water. Nevertheless, the court allowed recovery for pre-impact fright, reasoning that:
“it was ‘convinced that both of the deceased knew of the impending crash landing at sea, knew of the immediate dangers involved and are certain to have experienced the most excruciating type of pain and suffering (the knowledge that one is about to die, leaving three cherished children alone).’ ”
Id. at 792.
The question on appeal was “[i]f impact to a person is present, may it follow as well as precede conscious pain and suffering used as the basis for recovery for such conscious pain and suffering in an action under [the Florida survivor statute]?” Affirming the trial court, the appellate court con-
“While in the garden variety of claims under survival statutes, including the Florida Statute—fatal injuries sustained in automobile accidents and the like—the usual sequence is impact followed by pain and suffering, we are unable to discern any reason based on either law or logic for rejecting a claim because in this case as to at least part of the suffering, this sequence was reversed. We will not disallow the claims for this item of damages on that ground.”
Id. at 793. One scholar has observed, “Solomon stands for the theory that in cases involving an actual impact, it is reasonable to offer the plaintiff or his representatives an opportunity to prove that he experienced pain and suffering prior to impact and to allow recovery for proof of such injury.” Carol Tener, Recovery Allowed for Pain and Suffering Experienced by Decedent Prior to Impact, 4 W. St. L.Rev. 301, 310, n. 59 (1977).
One judge dissented. That judge argued that the record did not support a finding of whether death was instantaneous or not and, thus, “there can be no finding, one way or the other, about conscious pain and suffering after impact or about any physical suffering whatever.” Id. at 796. Viewing preimpact fear as a form of negligently-inflicted emotional distress, he wrote:
“Under Florida law, mental suffering is not recoverable in the absence of physical trauma occasioning it.... The majority professes that it has not departed from the impact rule but has only reversed a sequence to allow recovery when the impact follows the fear, as well as when the impact precedes the mental suffering. But to reverse the sequence is to abandon the rationale of the impact rule: any compensated mental pain and suffering must be caused by a physical impact---- It is not enough that some impact*479 accompany the mental suffering; the impact must cause the fears if they are to be compensable. Only then can courts measure mental duress by some means other than sheer speculation.”
Id. at 796-97 (Gee, J., dissenting)(footnote omitted).
Despite Judge Gee’s strong dissent, the Fifth Circuit Court of Appeals reached a similar result in cases applying Louisiana law. See Haley v. Pan American World Airways,
In Haley v. Pan American World Airways, supra,
Noting that no Louisiana state case had “squarely confronted the issue of whether the fear a decedent experiences prior to both death and physical impact is a legally compensable element of damages,” id. at 313, the court rejected Pan Am’s argument, reasoning:
“While Louisiana courts then, have never expressly allowed recovery for pre-impact apprehension in anticipation of imminent death, they do allow recovery for fear during a negligently produced ordeal. We are not prepared to con-*480 elude that the Louisiana courts would sever such an ‘ordeal’ into before and after impact components.”
Id. at 314. It concluded that “[a] broad compensatory principle lies behind Article 2315 of the Louisiana Civil Code,” and that “ ‘fright, fear, or mental anguish while an ordeal is in progress is legally compensable.’ ” Id. at 314, 315. (quoting Dawson v. James H. Stuart & Deaton, Inc.,
A similar decision was reached in Furumizo v. United States,
Louisiana courts have also upheld pre-impact fear damage awards. Thomas v. State Farm Insurance Co.,
Similarly, the court, in Hood, let stand a $7,500 award for pre-impact fear of a 13 year-old student who died when the 15 year old driver lost control of the vehicle, which skidded 63 feet before rolling over and killing the two passengers. Although there was no testimony that the decedent had expressed fear prior to his death, the intermediate appellate court held that “it was reasonable for the trial court to conclude from the circumstances that [the decedent] was probably extremely frightened while being thrown around in the truck as it overturned several times and as he was ejected from the vehicle.”
The Texas courts, too, permit recovery of damages for preimpact fright. In Green v. Hale,
A similar conclusion was reached in Yowell v. Piper Aircraft,
In another Texas case, Missouri Pac. R.R. v. Lane,
In Georgia, in Monk v. Dial,
In Michigan, pre-impact fright has been held to be compensable. In Kozar v. Chesapeake & Ohio Ry. Co.,
*485 “The testimony evidences that [the decedent] was aware of the falling boxcar, that he was aware he was in or near a position of danger and that he attempted to run from beneath the boxcar in a bent over position so as to avoid being struck until the last possible moment.
“The jury certainly could have reasonably determined from this evidence that [the decedent] sustained emotional injuries caused by a terrifying realization that he was about to die. Furthermore, in light of the testimony which evidenced that [the decedent] took his family obligations seriously, the jury also could have reasonably inferred that [the decedent] suffered horrendous emotional injuries due to an immediate appreciation of the tragedy that would befall his family if he were killed.”
Kozar,
More than a decade after the Kozar decision, the United States District Court for the Eastern District of Michigan, in Platt v. McDonnell Douglas Corp.,
Reviewing a defense motion to dismiss the plaintiffs claims for pre-impact fright and terror under Michigan’s wrongful death statute, the court found that Michigan state law had long supported “the notion that recovery may be sought and awarded for not only ‘bodily pain, but mental suffering, anxiety, suspense and fright which might be treated as elements of the injury.’ ” Id. at 363 (quoting Sherwood v. Ry. Co.,
“We are not persuaded that the common law in Michigan does not allow recovery for the pre-impact fright and terror, in which case, under the Wrongful Death Act, plaintiffs may recover for such claims that the decedent would have had should she have survived.”
Id.
The same airplane crash has been the subject of cases involving pre-impact fright in the federal district court for the Southern District of New York and in the Second Circuit Court of Appeals. In Malacynski v. McDonnell Douglas Corp.,
“The Court cannot agree with [defendant’s] interpretation of New York law. At least one state court has indicated that the claim is proper where the plaintiff can produce evidence from which a jury could infer that the decedent was aware of the danger and suffered from pre-impact terror. See Anderson v. Rowe,73 A.D.2d 1030 ,425 N.Y.S.2d 180 , 181 (4th Dept.1980). Moreover, the Fourth Department’s recognition of the pre-impact mental anguish claim in Anderson is the logical extension of two well-settled principles of New York law. First, the New York Court of Appeals has held that a plaintiff may recover damages for mental trauma induced by fear for one’s physical well-being, regardless of whether physical injuries actually were incurred. ... Second, New York State courts clearly allow*487 claims for post-impact pain and suffering in a wrongful death action where the plaintiff can establish that the decedent actually regained consciousness after impact.
* * *
“Given this willingness on the part of New York’s courts to recognize, in the context of a wrongful death action, a separate and independent claim for post-impact conscious pain and suffering, it would be illogical for this Court to conclude that the state courts would hold that the preimpact claim is merged into the main action for wrongful death.”
Id. at 106 (citations omitted).
In the motion for summary judgment, the defense challenged the sufficiency of the evidence. It contended that the plaintiff could not “adduce sufficient proof to justify an inference that [the decedent] experienced fear and/or was aware that she faced probable death prior to the aircraft’s crash.” Id. at 107. The court denied the defendant’s motion for summary judgment, observing that the plaintiff intended to produce testimony at trial of an eyewitness to the crash as well as evidence from the National Transportation Safety Board, and the decedent’s seat assignment on the plane. That evidence, the court concluded, may support an inference that the decedent knew she was in imminent danger and should therefore recover for pre-impact fright. Id.
Similarly, in Shu-Tao Lin v. McDonnell Douglas Corp.,
“New York provides a cause of action for the pain and suffering of a decedent before his death. In several cases it has been held that the decedent’s estate may recover for the*488 decedent’s pain and suffering endured after the injury that led to his death. From this proposition, it is only a short step to the allowing of damages for the decedent’s pain and suffering before the mortal blow and resulting from the apprehension of impending death.”
Skur-Tao Lin,
“We conclude that New York law does permit recovery for a decedent’s pre-impact fear for substantially the reasons set forth in [the district court’s] opinion. A decedent’s representative unquestionably may recover the pain and suffering experienced in a brief interval between injury and death.... We see no intrinsic or logical barrier to recovery for the fear experienced during a period which the decedent is uninjured but aware of an impending death.”
Shvr-Tao Lin,
With respect to the sufficiency of the evidence needed to establish pre-impact fright, the trial court observed (
“Since there were no survivors of the crash, there could be no direct evidence of Dr. Lin’s or other passengers’ pain and suffering before impact. However, given that Dr. Lin was assigned to a window seat on the plaintiffs left side and given the reasonable inference that he was in his seat during the first 30 seconds of the plane’s take-off, the jury might reasonably have inferred that Dr. Lin saw the engine and other pieces break away from the plane. Even if he did not see the damage, the jury might have still reasonably inferred that the sudden change in the plane’s [altitude]— from steep ascent to sharp banking and nose down descent-notified Dr. Lin of the impending disaster and caused him pain and suffering in the seconds before the crash.”
Agreeing with the trial court, the appellate court held that the issue of Dr. Lin’s pre-impact pain and suffering was a jury question and that its verdict was not excessive.
“There is no evidence permitting an inference that Shatkin was aware that the left engine had been lost on take-off; since he was seated on the right side of the wide-bodied plane, it would be sheer speculation to infer that he knew of the incident. There was no evidence that the pilot or anyone else called the danger to the passengers’ attention. As far as the record is concerned Shatkin could have dozed off in his seat.”
Shatkin,
New York state courts have also considered, and upheld, awards for pre-impact fear damages. In Lang v. Bouju,
In Nelson v. Dolan,
At trial, the defendant admitted that his negligence proximately caused the decedent’s death and the jury returned a plaintiffs verdict for more than $37,000. None of the award was for pre-impact fear, the trial court having refused to permit the decedent’s personal representative to adduce evidence on that issue. Agreeing that the decedent’s estate was “entitled to recover in the wrongful death action for the mental anguish decedent Nelson experienced prior to his death,” id. at 853,
“[W]e are persuaded that there exists no sound legal or logical distinction between permitting a decedent’s estate to recover as an element of damages for a decedent’s conscious postinjury pain and suffering and mental anguish and permitting such an estate to recover for the conscious prefatalinjury mental anguish resulting from the apprehension and fear of impending death.”
Id. at 857,
“While it is true that in the present case there is no evidence that decedent Nelson said anything prior to his death revealing an awareness of his impending death, the*492 personal representative’s offers of proof nonetheless provide a basis upon which the jury certainly need not, but could, if it wished, find that decedent Nelson apprehended and feared his impending death during the 5 seconds his motorcycle traveled 268 feet locked with [defendant] Dolan’s automobile before he was crushed and thus killed.”
Id. at 859,
On the other side of the ledger, there are jurisdictions that deny recovery for preimpact fright, mental anguish and emotional distress.
In Fogarty v. Campbell 66 Express, Inc.,
The plaintiff filed both a survival action and a wrongful death action, alleging that the defendant negligently failed to obey a stop sign, and operated the tractor-trailer at an excessive speed while fatigued. The defendant admitted that, because it was nighttime and she was unfamiliar with the intersection, she failed to see the stop sign and therefore did not stop before entering the intersection. The plaintiff, conceding that the decedent’s “immediate” death ruled out any recovery for physical pain and suffering, sought damages for the decedent’s pre-impact emotional distress.
The court recognized that the long-standing rule in Kansas governing recovery for emotional distress in negligence, rather than intentional or “wanton,” cases, requires an accompanying physical injury. Fogarty,
Concerned about the apparent rigidity of the Kansas rule, however, the court commented:
“Our conclusion that the Kansas Supreme Court would refuse to permit recovery for negligently induced, preimpact emotional distress not itself resulting in physical injury should not be read as an endorsement of the current legal doctrine in this area. A review of the case law in this and other jurisdictions reveals considerable disagreement, as well as more than a little judicial practice of medicine. By this we mean that the general rule against recovery for emotional distress (and, indeed, most of the exceptions thereto) was developed before medical science had advanced to its present state. Because earlier medical experts were less able to diagnose purely mental or emotional distress ..., courts attempted to sort out ‘fraudulent’ claims by imposing the rather arbitrary ‘impact rule.’ Today it is not at all clear that a physical impact is more likely to result in genuine emotional distress than are many non-impact sitúa*494 tions. For instance, the fear of fatal collision seems far more likely to create intense emotional distress than is a merely incidental physical contact. The effect of the rule, however, is to bar a truly distressed ... plaintiff from attempting to convince a jury that his complaints are genuine.”
Id. at 962. As a solution, the court suggested that “[a] negligent defendant should be liable for any provable emotional distress he or she causes a plaintiff—regardless of whether physical injury results.” Id. at 968. “Given the plaintiffs burden of proving such a claim, as well as the recent advances in diagnostic techniques, a rule denying all recovery to genuinely distressed plaintiff seems both illogical and unenlightened.” Id. Accord Cochrane v. Schneider National Carriers, Inc.,
In re Air Crash Disaster Near Chicago, Ill., etc.,
“No Illinois court has directly discussed this issue. Given the Illinois courts’ previous refusal to recognize claims for damages based on the plaintiffs fear or apprehension of danger, however, we believe that at present Illinois would not allow the plaintiff to maintain a claim for her daughter’s alleged fright and terror prior to the crash. For this reason, insofar as the plaintiff seeks damages for conscious mental pain and suffering preceding any physical injury, her claim is stricken.”
In re Crash Disaster Near Chicago,
In Nye v. Commonwealth,
“Even assuming arguendo that pre-impact fright .is a recoverable element of damages in this jurisdiction, it is clear that [plaintiff] neither pleaded nor proved a case supporting such an award . . . . If [decedent] had somehow avoided the accident, she could recover damages based on .her emotional distress or ‘flight’ only if she averred and proved that her mental or emotional distress resulted in some type of physical manifestation or harm. Banyas v. Lower Bucks Hospital,293 Pa.Super. 122 ,437 A.2d 1236 (1981).”
Id. at 215,
In Gage v. City of Westfield,
“The plaintiffs’ contention has some logical appeal but we are not persuaded by it. It is not at all uncommon for victims of sudden, fatal accidents to experience momentary fright prior to impact such as the plaintiffs’ decedents experienced. Yet the relevant period for purposes of measuring compensation for conscious pain and suffering has consistently been defined in our appellate decisions as commencing with the impact of the fatal injury. Assuming that limitation to have been intentional, we hesitate to extend the right to recover for conscious pain and suffering to preimpact fright.”
We find the cases upholding the recoverability of pre-impact fright as an element of damages are more persuasive and compatible with Maryland law.
(b)
Maryland jurisprudence has long evolved from the strict common law doctrine requiring an individual to suffer a physical impact or injury that results in emotional distress, in order for the emotional distress to be compensable. Since 1909, this Court, in Green v. T.A. Shoemaker & Co.,
The issue before this Court was “whether a cause of action will lie for actual physical injuries resulting from fright and nervous shock caused by the wrongful acts of another.” Id. at 77,
“The grounds upon which those courts have proceeded which deny such right are twofold: ‘(1) That physical injury produced by mere fright caused by a wrongful act is not the proximate result of the act; and (2) that, upon the ground of expediency, the right should be denied because of the danger of opening the door to fictitious litigation, and the impossibility of estimating damages.’ Huston v. Freemansburg, 3 L.R.A. (N.S.) 50, Editor’s note. As to the first of these grounds, this court has laid down in clear language the true doctrine upon this question in Balt. City Passenger Railway Co. v. Kemp,61 Md. 74 [, 80-81 (1883) ]. In that*499 case the court, speaking through Judge Alvey, said: ‘It is not simply because the relation of cause and effect may be somewhat involved in obscurity, and therefore difficult to trace, that the principle obtains that only the natural and proximate results of a wrongful act are to be regarded. It is only where there may be a more direct and immediate sufficient cause of the effect complained of that the more remote cause will not be charged with the effect. If a given [result] can be directly traced to a particular cause as the natural and proximate effect, why should not such effect be regarded by the law, even though such cause may not always, and under all conditions of things, produce like results '.? It is the common observation of all that the effects of personal physical injuries depend much upon the peculiar conditions and tendencies of the person injured, and what may produce but slight and comparatively uninjurious consequences in one case may produce consequences of the most serious and distressing character in another. * * * Hence the general rule is in actions of tort like the present that the wrongdoer is liable for all the direct injury resulting from his wrongful act, and that, too, although the extent or special nature of the resulting injury could not, with certainty, have been foreseen or contemplated as the probable result of the act done.’
“We now come to the question of expediency.... The argument from mere expediency cannot commend itself to a court of justice resulting in the denial of a logical legal right and remedy in all cases because in some a fictitious injury may be urged as a real one. The apparent strength of the theory of expediency lies in the fact that nervous disturbances and injuries are sometimes more imaginary than real, and are sometimes feigned, but this reasoning loses sight of the equally obvious fact that a nervous injury arising from actual physical impact is as likely to be imagined as one resulting from fright without physical impact, and that the former is as capable of simulation as the latter. It must be conceded that the numerical weight*500 of authority supports the general rule that there can be no recovery for nervous affections unaccompanied by contemporaneous physical injury, but the sounder view in our opinion is that there are exceptions to this rule, and that where the wrongful act complained, of is the proximate cause of the injury unthin the principles announced in Kemp’s Case, supra, and where the injury ought in the light of all the circumstances to have been contemplated as a natural and probable consequence thereof, the case falls uñthin the exception and should be left to the jury.”
Id. at 77-78,
Our holding in Green—that damages may be recovered for physical injuries caused by or resulting from fright or shock absent physical impact—was reaffirmed in subsequent cases. See Baltimore & O.R. Co. v. Harris,
In Bowman v. Williams,
“[T]he cause of the fright was the negligent act or omission of the defendants in permitting the truck to get out of control or be driven so as to run into the house of the plaintiff. This was a breach of duty that the defendants owed to the plaintiff. The physical damages which the plaintiff sustained naturally, directly, and reasonably arose from this negligent act or omission, without the intervention of any other cause, and so the causal connection between the injury and the occurrence is established.”
Id. Along the same line of reasoning, we stated that there was no reason to deny plaintiff the right to recover because he sustained injury that might have arisen from fear for the safety of his children rather than his own. We expounded:
“Here there was imminent danger of physical contact that confronted the plaintiff, who had visible reason to apprehend that the impending peril caused by the negligent act or omission of the defendants’ servants with respect to their duty to him would not only happen but would also crush and damage the building and inflict the threatened physical injury upon his children, in the basement and himself in the dining room of the house. There was no basis to differentiate the fear caused the plaintiff for himself and for his children, because there is no possibility of division of an emotion which was instantly evoked by the common and 'simultaneous danger of the three.”
Id.
Regarding the requisite “physical injury” to sustain a recovery of damages for emotional injury, we concluded that it must
“We think it clear that Bowman provides that the requisite ‘physical injury’ resulting from emotional distress may be proved in one of four ways. It appears that these alternatives were formulated with the overall purpose in mind of requiring objective evidence to guard against feigned claims. The first three categories pertain to manifestations of a physical injury through evidence of an external condition or by symptoms of a páthological or physiological state. [In the fourth category] [p]roof of a ‘physical injury’ is also permitted by evidence indicative of a ‘mental state,’ a conclusion consistent with the holdings in the Green, Bowman and Roch cases. In the context of the Bowman rule, therefore, the term ‘physical’ is not used in its ordinary dictionary sense. Instead, it is used to represent that the injury for which recovery is sought is capable of objective determination.”
Vance,
We further clarified the “physical injury” requirement in Faya v. Almaraz,
In Belcher, this Court was required to define the phrase “accidental personal injury” within the context of the Workers’ Compensation Act. In that, case, a three-ton beam being hoisted by a construction crane broke loose and tumbled twenty feet, crashing without warning through a concrete roof over the plaintiffs head and landing just five feet from her. The Plaintiff sustained no bodily injury, but “ ‘suffered sleep disturbances, nightmares, heart palpitations, chest pain, and headaches as a result of the occurrence.’ ” Belcher,
Although we have liberalized the physical injury rule, there are limitations on the recoverability of damages for emotional distress. In Dobbins v. Washington Surburban Sanitary Comm.,
On the defendant’s motion, the trial court entered summary judgment in favor of the defendant, on the grounds that “by law the Plaintiffs’ claims for mental anguish and emotional upset and distress cannot be chargeable to the Defendant in this case.” Id. at 350,
IY
Based on the foregoing discussion, damages for emotional distress or mental anguish are recoverable in Maryland, provided that it is proximately caused by the wrongful act of
In the case at bar, the Court of Special Appeals, in reversing the trial court’s decision allowing recovery of “pre-impact fright” damages, held that such damages could not be awarded to a decedent who dies instantly and never regains consciousness after the impact “because no cause of action will lie for ‘mere fright’ without physical injury (Green v. Shoemaker) or injury capable of objective determination (Vance) resulting therefrom.” Montgomery Cable,
“Obviously, one who died instantly upon impact or at least died without recovering consciousness following impact cannot have suffered any injury capable of objective determination as a result of ‘pre-impact fright,’ i.e., fear, terror, or mental anguish or distress from anticipation of imminent injury or death.
“If the reluctance to award damages for ‘mere fright’ stemmed from concern about the ‘danger of opening the door to fictitious litigation,’ or ‘expediency,’ referred to in Green v. Shoemaker,111 Md. at 77-81 ,73 A. 688 , the fact that there was an impact after the tort victim experienced the fright might tend to alleviate that concern. But the Court of Appeals in Green v. Shoemaker expressly excluded ‘expediency as a basis for denying recovery of damages for*506 fright. Id. The Court of Appeals stated unequivocally in Green v. Shoemaker and has since repeatedly reaffirmed that, to be compensable, fear suffered by a tort victim must result in an injury capable of being determined by objective signs or symptoms. When, as in this case, the tort victim dies instantly or, at least without regaining consciousness, from the impact, there is no evidence of injury resulting from fright. Indeed, although there is a reasonable inference in this case, from the existence of skid marks, that the deceased may have experienced some mental distress upon realizing his peril, the extent of that distress and its consequences is a matter of sheer speculation, there being, in the language employed by the Court of Appeals, ‘no practical standard for measuring the suffering occasioned by1 that mental distress. Green v. Shoemaker,111 Md. at 77 ,73 A. 688 .
“It should be recognized that pre-impact fright, mental distress caused by expectation or anticipation of impending doom, is an entirely different phenomenon from post-impact mental suffering or emotional distress. The latter results from and exacerbates bodily injuries sustained upon impact, e.g., concern about the extent of recovery and the length of the recovery period; worry over the effect of the injuries and the duration of the recovery period on the victim’s finances; and, if there is not a complete recovery, the loss of happiness or enjoyment of life suffered by one who has been rendered unable to do at all or do with the same degree of facility those things that formerly produced pleasure. All of those forms of mental distress are as much the natural, proximate, and foreseeable result of tortious conduct as bodily injury and physical pain. Pre-impact fright engendered by recognition of danger, however, does not result from bodily injuries and is compensable only to the extent that it causes or results in demonstrable or objectively determinable injury.”
Id. at 388-89,
In Green, the underlying reason we required physical injury as a result of an emotional injury before emotional
The fact that the fright or mental anguish in this case preceded the crash that resulted in the decedent’s fatal bodily injuries does not affect causation. As our cases make clear, whenever a wrongful act naturally and proximately results in harm, “why should not such effect be regarded by the law, even though such cause may not always, and under all conditions of things, produce like results?” Green,
A rule that does not permit a decedent’s estate to recover pre-impact fright damages in a survival action would be illogical in view of the fact that a victim who survives an accident similar to the one in this case would be entitled to recover damages for the emotional distress and mental anguish he or she suffered before the accident, independent of any physical injury that may have been sustained before, or after, the emotional injury. The purpose of survival statutes is to permit a decedent’s estate to bring an action that the decedent could have instituted had he or she lived. Here, there is no question that, had he lived, the decedent would have been permitted to recover damages for the “pre-impact fright” he suffered before crashing into rear of the tractor-trailer.
Also, permitting a jury to determine pre-impact fright requires the same reasoning and common knowledge that we allow jurors to exercise in determining non-economic, pain and suffering damages in other tort actions, which, like assault, require an assessment of a victim’s fear and apprehension. Direct evidence is not necessary. What is required is evidence from which a reasonable inference could be drawn that the decedent experienced fear or fright. Such evidence exists in this case, the 71½ feet long skid marks made by the decedent’s vehicle immediately prior to the actual crash. A jury reasonably could have inferred from that evidence that the decedent was aware of the impending peril, that he was going to crash, and attempted an evasive maneuver to avoid it.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE RESPONDENT.
CHASANOW, RAKER and WILNER, JJ., dissent and file opinions.
Notes
. This was the maximum amount allowed at the time. See Maryland Code (1974, 1991 Repl.Vol.) § 7-401(x)(2) of the Estates and Trusts Article. By ch. 424, Laws of 1995, that section was amended to provide for the calculation of funeral expenses allowed by reference to § 8-106(b) of the Estates and Trusts Article. Section 8-106(b) presently provides for $5000.00 in funeral expenses.
. Maryland Code (1974, 1995 Repl.Vol.) § 11-108(b) of the Courts and Judicial Proceedings Article provides:
"(b) Limitation of $350,000 established.—(1) In any action for damages for personal injury in which the cause of action arises on or after July 1, 1986, an award for noneconomic damages may not exceed $350,000.
"(2)(i) Except as provided in paragraph (3)(ii) of this subsection, in any action for damages for personal injury or wrongful death in which the cause of action arises on or after October 1, 1994, an award for noneconomic damages may not exceed $500,000.
"(ii) The limitation on noneconomic damages provided under sub-paragraph (i) of this paragraph shall increase by $15,000 on October 1 of each year beginning on October 1, 1995. The increased amount shall apply to causes of action arising between October 1 of that year and September 30 of the following year, inclusive.
"(3)(i) The limitation' established under paragraph (2) of this subsection shall apply in a personal injury action to each direct victim of tortious conduct and all persons who claim injury by or through that victim.
"(ii) In a wrongful death action in which there are two or more claimants or beneficiaries, an award for noneconomic damages may not exceed 150% of the limitation established under paragraph (2) of this subsection, regardless of the number of claimants or beneficiaries who share in the award.’’
. Under that section,
(x) [a personal representative] may prosecute, defend, or submit to arbitration actions, claims, or proceedings in any appropriate jurisdiction for the protection or benefit of the estate, including the commencement of a personal action which the decedent might have commenced or prosecuted, except that:
(1) A personal representative may not institute an action against a defendant for slander against the decedent during the lifetime of the decedent.
(2) In an action instituted by the personal representative against a tort-feasor for a wrong which resulted in the death of the decedent, the personal representative may recover the funeral expenses of the decedent up to the amount allowed under § 8-106(b) of this article in addition to other damages recoverable in the action.
Maryland Code (1974, 1995 Repl.Vol.) § 6-401 of the Courts and Judicial Proceedings Article provides for the survival of certain causes of action. It states:
“(a) Except as provided in subsection (b) of this section, a cause of action at law, whether real, personal, or mixed, survives the death of either party.
"(b) A cause of action for slander abates upon the death of either party unless an appeal has been taken from a judgment entered in favor of the plaintiff.
"(c) A right of action in equity survives the death of either party if the court can grant effective relief in spite of the death.”
. Comment b provides as follows:
“Where the tortious conduct does not result in bodily harm, there can ordinarily be no recovery for mere emotional disturbance which has no physical consequences.”
Restatement (Second) of Torts § 456 cmt. b.
. The respondents do not allege that the instant case presents a trivial or fictitious claim of pre-impact fright.
. One commentator has observed:
"Courts confronting claims for damages from pre-impact fear have divided on how the law should treat such claims. Some have held that pre-impact fear is mental anguish which is part of a larger, ongoing ordeal. These courts have allowed recovery for pre-impact fear as part of the award of damages for conscious pain and suffering. Other courts have viewed pre-impact fear as part of negligently-inflicted emotional distress. Jurisdictions generally allow recovery for negligently-inflicted emotional distress, but many restrict recovery to those cases in which there was a physical ‘impact’ upon the person of the plaintiff, or require that the mental duress be ‘physically manifested' by some form of illness or injury.”
*477 Thomas D. Sydnor II, Note, Damages for a Decedent’s Pre-Impact Fear: An Element of Damages Under Alaska’s Survivorship Statute, 7 Alaska L.Rev. 351, 352 (1990).
. In Smith v. United States,
"The record shows that Smith is dead as a result of his fall with the ladder. But it would be a mere guess to say when he died, or whether his death was caused from striking the dock or drowning or both. If the time of his death was known and shown, there would I take it he both mental and physical suffering by him from the time he began to fall until his death. But as the record stands, [the] only certain period'of mental and physical suffering is from the time he began to fall until he struck the dock, and the amount of damages, if any, recoverable therefor would be a mere guess. I do not think [plaintiff], under this record is entitled to recover therefor."
. In Wiggins v. Lane & Co.,
"If a seaman fell from the mast into the sea, was rescued a few seconds later after almost drowning, was given artificial respiration, and brought back to consciousness, it would appear certain that he could recover for the fright suffered in the moments when he thought he was falling to his death. The survivorship statute draws no distinction that would eliminate the cause of action because the decedent’s suffering was in fact brief.”
Id. at 196.
. Reviewing Shu-Tao Lin and Shatkin, one scholar remarked: "It is amazing that the same federal court could come to such differing conclusions in these cases ostensibly because of where the decedent was seated. This underscores the suspicion and hesitancy with which courts view evidence of pre-impact mental anguish.” Louisa Ann Collins, Pre- and Post-Impact Pain and Suffering and Mental Anguish in Aviation Accidents, 59 J. Air L. & Com. 403, 425 (1994).
Dissenting Opinion
dissenting.
A jury in the Circuit Court for Montgomery County awarded $1,000,000 in damages to the Estate of Douglas Beynon to compensate Mr. Beynon’s beneficiaries for the one-and-a-half to two-and-a-half seconds of fright that it assumed Mr. Bey-non must have suffered before crashing into the rear of Mr. Kirkland’s truck. Only by virtue of the statutory “cap” on noneconomic damages that was then in effect was that award reduced to $350,000, which still amounts, at the least, to $140,000 per second of assumed fright. The Majority effectively affirms the judgment entered on that verdict, concluding that (1) Maryland recognizes an action for pre-impact fright, even when the impact causes instantaneous death without the prospect of any post-impact pain or suffering; and (2) the existence of that fright can be sufficiently inferred from nothing more than seventy-one-and-a-half feet of skid marks. I agree with the first of those conclusions but most respectful
There are a number of decisions in other jurisdictions allowing recovery for pre-impact fright, and there appear to be two decisions that allow such a recovery based on nothing more than skid marks or other evidence that the decedent took some action to avoid the collision. See Fogarty v. Campbell 66 Exp. Inc.,
The Maryland State P.olice blocked the capital beltway in both directions on the night in question in order to allow the cablevision company to install a replacement cable that crossed the beltway. There were normally four westbound lanes in that area, although, at the time, one was closed due to construction. The flatbed trailer being operated by the defendant Kirkland had safely, stopped about a mile from the roadblock, in the middle lane. The trailer had been stopped for at least 20 seconds before the collision.
The Majority is comfortable allowing the jury to infer that, during the one-and-a-half to two-and-a-half seconds that Mr. Beynon was desperately trying to stop his vehicle and avoid the collision, he must have been consumed with conscious fright—anticipating his imminent death, worrying about the effect of his death on his family, chagrined at losing the opportunity to experience the pleasures of continued life, fearful of any pain that he may momentarily suffer, concerned, perhaps, about what, if any, kind of afterlife he might face. If there was any substantial evidence that any of those thoughts were, in fact, consuming Mr. Beynon during that second or two, I would agree that a recovery would be permissible. But there was no such evidence. It is rank speculation to conclude that Mr. Beynon was consciously thinking about anything other than stopping his vehicle, or, indeed, that his mind and body were engaged in anything but an instinctive reaction directed entirely at self-preservation, requiring little or no ideation at all.
Most of the cases relied upon by the Majority involved circumstances where the decedents were obviously aware of an impending disaster that they, themselves, could do nothing to avert. They were essentially helpless in the situation, left only to contemplate their fate. In Solomon v. Warren,
When a person is left in that kind of passive, hopeless situation, the mind is indeed free to contemplate, even if momentarily, the awful reality of what is about to occur. When, as in Mr. Beynon’s case, the person either reacts instinctively or marshals his or her whole being in a supreme effort to control the event, absent some evidence beyond merely that effort, it is purely speculative to infer that the decedent was consciously pondering the effects of an impending death. There may, of course, be cases where other evidence does exist—where a witness testifies as to statements or conduct by the decedent more directly indicating a conscious contemplation of death and the consequences of it. Thomas v. State Farm Insurance Co.,
This case is certainly an extreme one, but, in one sense, it is not unusual. In most pre-impact fright cases where an award is made, although the absolute size of the jury award is ordinarily not great, often ranging from $5,000 to $15,000, the amount per second of fright is enormous. See Kathleen M. Turezyn, When Circumstances Provide a Guarantee of Genuineness: Permitting Recovery for Pre-impact Emotional Distress, 28 Boston C.L.Rev. 881, 907 and n. 165 (1987). Here, the jury’s actual award amounted to at least $400,000 per second of fright, later reduced to $140,000 per second of fright. The problem, however, is not simply one of amount. Whether the award is great or small, when grounded on nothing more than skid marks or other evasive action, it can only be a sympathy verdict based not on any substantial evidence of fright but rather on a desire either to compensate the decedent’s beneficiaries for his or her death, beyond what is allowed in a wrongful death action, or to punish the wrongdoer.
. There was evidence that the trailer had been stopped for about five minutes, inching forward every so often, but that it had remained stationary for about 20 seconds prior to the collision.
. As the Majority points out, the jury in this case also awarded Mr. Beynon’s parents $367,000 in economic losses and $2,500,000 for their past and future pain and suffering from their son’s death.
Dissenting Opinion
dissenting.
We respectfully dissent for the reasons so well expressed by Judge Bloom, writing for the Court of Special Appeals in Montgomery Cablevision v. Beynon,